These Bar Events
links give you information about upcoming programs and activities:
April 5, 2008 - NSBA CFI Barristers' Ball, Benefit for the Volunteer Lawyers Project Clinics; Dinner, Auctions and Dancing at the Hilton Hotel in Omaha Registration Form Online Registration
May 6, 2008 - NCLE Presents Cross Examination Expert Robert Musante, Attend Morning Session or Afternoon Session or Both
Morning: Great! Adverse Depositions: Principles and Principal Techniques
Afternoon: Cross Examination: Attacking "I Don't Know" Information and Registration Form Online Registration
For more information about TELESEMINARS, LUNCH
& LEARN SEMINARS and LIVE WEBCASTS contact Kathryn
Bellman.
These links
provide you with information on existing Member
Benefits:
In this case, the Nebraska Court of Appeals finds that a county court erred in its determination in a probate hearing that denied the Nebraska Department of Health and Human Services (DHHS) claim for reimbursement of Medicaid payments.
In re Estate of Reimers, 16 Neb. App. 610 (2008)
Court of Appeals Headnotes
Decedents’ Estates:
1. Appeal and Error. Appeals of matters arising under the Nebraska Probate Code are reviewed for error on the record.
Judgments:
1. Appeal and Error. When reviewing an order for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
Administrative Law:
1. Medical Assistance: Liability: Debtors and Creditors. Under the Medical Assistance Act, Neb. Rev. Stat. § 68-901 et seq. (Cum. Supp. 2006 & Supp. 2007), commonly known as Medicaid, a recipient generally becomes indebted to the Nebraska Department of Health and Human Services for assistance payments.
a. Decedents’ Estates. While the debt arising under Neb. Rev. Stat. § 68-901 et seq. (Cum. Supp. 2006 & Supp. 2007) accrues during the recipient’s lifetime, it is held in abeyance for payment, pursuant to § 68-919(2), until the recipient’s death.
2. Records: Evidence. The statute providing for admission of the Nebraska Department of Health and Human Services’ payment record, Neb. Rev. Stat. § 68-919(4) (Supp. 2007), clearly dispenses with foundation for the admission of the record, if properly certified. ••• Neb. Rev. Stat. § 68-919 (Supp. 2007) does not create any presumption that the amounts shown on the payment record of Nebraska’s Department of Health and Human Services are reimbursable by the recipient’s estate—such must still be proved, and if an exhibit does not do so, then additional evidence is needed.
Appeal and Error.
1. An issue not presented to or passed upon by the trial court is not an appropriate issue for consideration on appeal.
Date Filed and Case No.: March 25, 2008. No. A-07-261.
Court Appealed From: County Court for Hall County: David A. Bush, Judge.
Attorneys for the Appeal: Jon Bruning and David M. McManaman for Nebraska Department of Health and Human Services, appellant. John R. Higgins for Judy Wrehe, Personal Representative of the Estate of Myrtle Alice Reimers, deceased, appellee.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Severs, Judge.
Summary: This appeal is from an informal probate proceed involving the estate of Myrtle Alice Reimers who died on March 22, 2005. After the estate was opened, the Nebraska Department of Health and Human Services (DHHS) filed a claim for reimbursement of Medicaid payments in the amount of $79,163.48 made on behalf of Reimers during her lifetime. The county court held a hearing after which a written decision was rendered denying DHHS’ claim in its entirety. DHHS appealed to the Nebraska Court of Appeals.
The Court’s opinion set out that the bill of exceptions in this case is composed solely of exhibit 2, which is a document produced by DHHS that is 122 pages in length. The exhibit begins with a “Certification Statement.” Citing applicable Nebraska statutes, the first page of exhibit 2 asserts that repayment for the amounts sought shall be made directly to DHHS. The first page then has the following list of items for which reimbursement is sought that the Court reproduce in the opinion verbatim:
Total of Client Expense Report
(07/17/1994 to 12/31/1998): $ 7,941.17
Total of Client Detail Report
(01/01/1999 to 03/31/2005): $53,616.99
Total of Waiver Services
(07/17/1994 to 03/31/2005: $17,605.32
Total Nebraska Medicaid Payment: $79,163.48
The first page of the exhibit then recites “[DHHS,] Finance and Support[,] Dave Cygan - Authorized Representative” below what appears to be the signature of Dave Cygan. Affixed to the document, to the right of the description and signature, is the gold official seal of DHHS.
The county court’s decision notes the personal representative’s objection to the admission in evidence of exhibit 2 based on lack of foundation, but overrules the objection, citing Neb. Rev. Stat. § 68-919(4). The court said no further evidence was offered, and the matter was deemed submitted. The county court’s decision on the merits of DHHS’ claim for reimbursement found that DHHS’s claim should be denied in the absence of further testimony or other evidence from DHHS. DHHS appealed.
Did the county court err when it disallowed the claim for reimbursement of medical assistance benefits provided to Reimers during her lifetime? There is no dispute that for a good number of years prior to her death, Reimers received assistance from DHHS under the Medical Assistance Act. Under Medicaid, a recipient generally becomes indebted to DHHS for assistance payments and while the debt arising accrues during the recipient’s lifetime, it is held in abeyance for payment until the recipient’s death. With respect to the contents of exhibit 2, the Court said that DHHS breaks its claim down into the three categories set out above. While these categories by themselves do not tell the full story it was properly admitted. What then becomes determinative is what is proved by the contents of the exhibit, considered in the context of the Act.
Having examined each claim detailed on the first 88 pages of exhibit 2, the Court found that the exhibits contents fall within the categories delineated by § 68-911 for which the Estate owes DHHS reimbursement and that no further evidence by way of explanation of such claims is needed. As the Estate introduced no evidence to show that such claims were not reimbursable, the county court was clearly wrong and committed error on the record in disallowing reimbursement of the claims shown on the first 88 pages of exhibit 2. The total that DHHS is entitled to from this portion of the exhibit is $7,941.17.
Turning to the next 28 pages of exhibit 2, encompassing drugs and medical services from January 1, 1999, to the date of Reimers’ death. The Court found there is no evidence to dispute that all of the claims set forth on those 28 pages of exhibit 2 are not properly reimbursable under the act, and facially, the exhibit shows that such are reimbursable. Therefore, the county court was clearly wrong and committed error on the record in finding that the evidence was insufficient to order reimbursement in the amount sought, specifically $53,616.99.
Finally, the third category for which DHHS sought reimbursement, in the amount of $17,605.32, entitled "Total of Waiver Services,” the last six pages of exhibit 2. The Court found that the five types listed on exhibit 2 could possibly fall under one or more of the mandatory or optional medical services categories for which DHHS will pay under Medicaid, “however to get to that conclusion, we would have to speculate or guess at the meaning of these cryptic terms.” Accordingly, as opposed to the claims for reimbursement upon which the Court reversed the county court’s decision, all of the claims on the last six pages of exhibit 2 need further evidence to establish that the amounts listed are in fact reimbursable by the Estate under § 68-919.
Conclusion: In summary, the Court found that the statute providing for admission of DHHS’ payment record, § 68-919(4), clearly dispenses with foundation for the admission of the record if properly certified, as exhibit 2 was. However, the statute does not create any presumption that the amounts shown on the payment record are reimbursable by the recipient’s estate and such must still be proved. Given that DHHS did not supplement exhibit 2 by other testimony or evidence, the Court could not determine from the face of the payment record that the items set forth on the last six pages of exhibit 2 are reimbursable under § 68-919. For those reasons the Court reversed the decision of the county court and find that the Estate is obligated to reimburse DHHS in the amount of $61,558.16. However, they affirmed that portion of the decision of the county court which found that the Estate was not obligated to reimburse DHHS in the amount of $17,605.32 for that portion of its claim entitled “Waiver Services.” AFFIRMED IN PART , AND IN PART REVERSED AND REMANDED.
After a decree of dissolution goes through a number of motions to alter or amend, resulting in three judgments, the Nebraska Court of Appeals goes through the chronology of the motions, the tolling periods they had on the time to appeal and determined that they had jurisdiction to review the case.
Gebhardt v. Gebhardt, 16 Neb. App. 565 (2008)
Court of Appeals Headnotes
Jurisdiction:
1. 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. ••• Notwithstanding whether the parties raise the issue of jurisdiction, an appellate court has a duty to raise and determine the issue of jurisdiction sua sponte.
Pleadings:
1. Judgments:
a. Time. Neb. Rev. Stat. § 25-1329 (Cum. Supp. 2006) requires the filing of a motion to alter or amend no later than 10 days after the entry of the judgment. ••• In order to be a tolling motion, a motion to alter or amend must seek substantive alteration of the judgment.
i. Appeal and Error. Under Neb. Rev. Stat. § 25-1912(3) (Cum. Supp. 2006), a motion to alter or amend timely filed terminates the running of the time for filing a notice of appeal as to all parties. ••• Successive motions to alter or amend do not toll the time to appeal; however, motions to alter or amend are not “successive” when they were timely filed after the court substantially altered the judgment, giving the parties a statutory right to seek alteration or amendment of the “new judgment” in the trial court before appealing to an appellate court.
Judgments:
1. Final Orders: Words and Phrases. According to Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2006), a judgment is the final determination of the rights of the parties in an action; to be final, an order must dispose of the whole merits of the case and leave nothing for further consideration of the court, and thus the order is final when no further action of the court is required to dispose of the pending cause.
Divorce:
1. Property Division: In dissolution matters, property divisions are not subject to a rigid mathematical formula and the division must, most of all, be reasonable.
a. Appeal and Error. An appellate court reviews a dissolution case de novo on the record to determine whether there has been an abuse of discretion by the trial judge. Such standard also applies to the trial court’s determinations regarding the division of property.
Evidence:
1. Appeal and Error. In a de novo review, an appellate court reappraises the evidence in the record and reaches its own independent conclusions. ••• Where the evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.
Judges:
1. Words and Phrases. A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
Appeal and Error.
1. An issue not properly presented to and passed upon by the trial court may not be raised on appeal.
Date Filed and Case No.: March 11, 2008. No. A-07-102.
Court Appealed From: District Court for Greeley County: Ronald D. Olberding and Mark D. Kozisek, Judges.
Attorneys for the Appeal: Gregory G. Jensen for Rhonda L. Gebhardt, appellant. Barry D. Geweke for John O. Gebhardt, appellee.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Severs, Judge.
Summary: Rhonda L. Gebhardt and John O. Gebhardt were divorced by a decree of dissolution of marriage entered on May 1, 2006, by then District Judge Ronald D. Olberding in the district court for Greeley County, Nebraska. Judge Olberding retired effective April 30. Following the entry of decree, there was a motion for a new trial on May 3 and a ruling thereupon on August 10 by District Judge Mark D. Kozisek. Thereafter, there were a series of motions to alter or amend judgment, rulings thereupon, and finally Rhonda’s notice of appeal, which was filed January 23, 2007. These procedural occurrences raised jurisdictional issues to the Nebraska Court of Appeals.
What was the tolling effect of a motion to alter or amend? The Court said that this appeal raised this issue along with the effect of successive motions to alter or amend, and ultimately which actions of the trial court are subject to appellate review.
Both parties referenced Mason v. Cannon, 246 Neb. 14, 516 N.W.2d 250 (1994), for two fundamental propositions: (1) An untimely motion for new trial is ineffectual and does not toll the time for perfection of an appeal, nor does it extend or suspend the time limit for filing such appeal, and (2) the filing of a motion for new trial and its subsequent overruling do not convert an otherwise unappealable order into an appealable order. However, the Court pointed out that Mason was decided before the operative date (April 16, 2004) of the statute providing for the filing of a motion to alter or amend. That statute, Neb. Rev. Stat. § 25-1329 requires the filing of such a motion no later than “ten days after the entry of the judgment” and, under Neb. Rev. Stat. § 25-1912(3) such a motion terminates the running of the time for filing a notice of appeal “as to all parties.” In order to be a tolling motion, the Court noted that a motion to alter or amend must seek substantive alteration of the judgment.
The Court said that Mason is instructive but not determinative of the result in this case, because it did not involve a motion to alter or amend and, most important, the trial court in Mason took no action which altered or changed the judgment between the two motions for new trial filed by Mason. Thereafter, the opinion set out the procedural events of this case:
1. May 1: The initial entry of the decree of dissolution of May 1, 2006, by Judge Olberding. (A final order, Judgment #1.)
2. May 3: Rhonda’s motion for new trial. (Time to appeal is tolled.)
3. August 10: the district court rules on Rhonda’s motion and substantially altered the judgment in her favor and against John. (Thus, a new judgment, Judgment #2.)
4. Within 10 days of August 10: John filed a motion to alter or amend the order modifying decree as Judgment #2. Additionally, John's motion asserted Judgment #1 failed to give him credit for a cash inheritance and that with said credit, no property settlement judgment against him was warranted. (Time to appeal is tolled.)
5. October 10: Rhonda files a Cross Motion to Alter or Amend Order Modifying Decree. (Ruled out of time and a nullity.)
6. November 14: The trial court rules on John’s motion to alter or amend, removing Rhonda’s credit for inherited property (Judgement #1) and eliminating Judgment #2 this time to Rhonda’s disadvantage. (Thereby becoming Judgment #3.)
7. November 22: Rhonda moves again to alter or amend the judgment. (Again qualifies as tolling motion.)
8. December 28: Rhonda’s motion denied with no change in Judgment #3. (A final, appealable order.)
9. January 23, 2007, Rhonda files appeal to the Nebraska Court of Appeals.
Therefore, the Court determined that they had jurisdiction of this appeal to conduct appellate review of the final judgment entered in this divorce case.
The Court pointed out that If Rhonda, instead of filing a notice of appeal within 30 days of December 28, 2006, would have filed another motion to alter or amend attacking the trial court’s decision of November 14, the principles of Mason v. Cannon, would apply. Because, at that point, she would have filed successive motions to alter or amend the same judgment. However, in this case, her various motions to alter or amend were not “successive” in the sense condemned in Mason. While successive motions to alter or amend would not toll the time to appeal under the reasoning of Mason, the motions to alter or amend in this case were not “successive,” because they were timely filed after the court substantially altered the judgment, giving the parties a statutory right to seek alteration or amendment of the “new judgment” in the trial court before appealing.
Conclusion: Because successive and material changes were made to the decree of dissolution, the motions to alter or amend that were filed within 10 days of the “change orders” tolled the time to appeal to the Court. Accordingly, they had jurisdiction over Rhonda’s appeal. “However,” they found “none of her assignments of error have merit.”
AFFIRMED.
Workers' Compensation Court, Judgment, Agreement by Parties under Neb. Rev. Stat. 48-141(1)
Here the Nebraska Court of Appeals has to analyze a pair of judgments by a Workers’ Compensation Court and decide whether the second judgment was through and agreement of the parties that had been approved by the court, under § 48-141(1).
Holmes v. Chief Indus., 16 Neb. App. 589 (2008)
Court of Appeals Headnotes
Workers’ Compensation:
1. Appeal and Error. An appellate court may modify, reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. ••• Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. ••• All amounts paid by an employer or by an insurance company carrying such risk, as the case may be, and received by the employee or his or her dependents by lump-sum payments, approved by order pursuant to Neb. Rev. Stat. § 48-139 (Reissue 2004), shall be final, but the amount of any agreement or award payable periodically may be modified at any time by agreement of the parties with the approval of the Nebraska Workers’ Compensation Court. ••• An employer cannot unilaterally change an employee’s workers’ compensation benefits.
2. Appeal and Error. With respect to questions of law in workers’ compensation cases, an appellate court is obligated to make its own determinations.
Statutes.
1. Statutory interpretation presents a question of law.
Judgments.
1. The meaning of a judgment is determined, as a matter of law, by its contents. ••• In the absence of an ambiguity, the effect of a judgment must be declared in light of the literal meaning of language used. ••• If the language of a judgment is ambiguous, there is room for construction. ••• In ascertaining the meaning of an ambiguous judgment, resort may be had to the entire record. ••• The fact that the parties have suggested opposing meanings of a disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous.
2. Words and Phrases. A judgment is ambiguous if a word, phrase, or provision has at least two reasonable but conflicting meanings.
Date Filed and Case No.: March 18, 2008. No. A-07-550.
Court Appealed From: Workers’ Compensation Court. Reversed and remanded with directions.
Attorneys for the Appeal: Brenda S. Spilker and Amanda A. Dutton for Edmon T. Holmes, appellant. Mark A. Fahleson and Sarah S. Pillen, of Rembolt Ludtke, L.L.P., for Chief Industries, Inc., appellee.
Judges: Severs, Carlson, and Moore, Judges.
Authored By: Severs, Judge.
Summary: Edmon T. Holmes was employed as a truckdriver by Chief Industries, Inc. (Chief) and sustained two compensable injuries while on the job (on September 10, 1997, and September 4, 1998.) On March 22, 2000, the compensation court entered an award finding that at the time of the accident and injury of September 10, 1997, Holmes was receiving an average weekly wage entitled him to benefits of $227.09 for TTD for certain dates and for so long in the future as Holmes should remain TTD.
On October 9, 2003, Holmes's former attorney, Tony Brock, made a motion to the compensation court for an order approving a lien for attorney fees. Following a hearing in which Chief and Brock participated, but Holmes was not in attendance or represented, on October 24, the court entered an order finding that Brock was entitled to a lien ($15.14 per week.) Chief consequently reduced Holmes' periodic disability payments by an amount equal to Brock's attorney's lien.
On January 4, 2006, Holmes filed a motion with the compensation court, asserting, among other things, that no modification had been made to the March 22, 2000, award, which as set forth above gave him a "running" award of TTD, but that Chief had failed to pay Holmes his weekly benefits required by the running award of TTD. On August 14, 2006, the compensation court trial judge entered an order which found, among other things, that in accordance with § 48-141, a modification had been made to the original award.
Holmes appealed this order to the compensation court review panel that found that Holmes’ award had been modified by agreement of the parties pursuant to Neb. Rev. Stat. § 48-141(1) (Reissue 2004), and as a result, the trial judge’s reduction of benefits was affirmed. Holmes now appeals to the Nebraska Court of Appeals.
Did the compensation court err in finding that an order that it made on October 24, 2003, was a modification of the March 22, 2000, award, pursuant to § 48-141(1)? Holmes contended that there was no modification of the March 22, 2000, award of continuing TTD payments and that the order of October 24, 2003, awarding Brock an attorney’s lien is not a modification of the March 22, 2000, award, pursuant to § 48-141. The Court determined that resolution of this issue required it to determine the meaning of the October 24, 2003, order as it relates to the provisions of § 48-141. The pertinent portion of § 48-141 provides:
All amounts paid by an employer or by an insurance company carrying such risk, as the case may be, and received by the employee or his or her dependents by lump-sum payments, approved by order pursuant to section 48-139, shall be final, but the amount of any agreement or award payable periodically may be modified as follows: (I) At any time by agreement of the parties with the approval of the Nebraska Workers’ Compensation Court[.] (Emphasis supplied.)
The Court then turned to the meaning of the compensation court’s judgment entered on October 24, 2003, with respect to Brock’s application for an attorney’s lien.
The Court turned to Davis v. Crete Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006), relied upon by the review panel. “Reduced to its essence,” wrote the Court “Davis finds that the parties’ stipulation had set an ‘end date’ for TTD benefits, marked by either the completion of the specific (vocational rehab) plan or Davis’ failure to complete it—thus the importance of the stipulation for payment of TTD benefits only ‘while’ he was in the specifically agreed-to plan.” The Court found this materially different from the “running award of TTD” held by Holmes. “[I]t goes without saying that a stipulation between the parties is an ‘agreement,’” they wrote “and in Davis, the stipulation was approved and implemented by the compensation court’s decision. None of these things are present in the instant case.” Consequently, the Court found that the compensation court incorrectly relied on Davis to find that there was a modifying agreement. The Court ruled that Brock lacked the authority to bind his former client to anything. In short, what the trial judge said was an “obvious agreement of the parties” was not in evidence, and could not be formed by Holmes’ former lawyer, who was appearing only to secure an attorney’s lien and had no authority to bind Holmes to a modification of his running award of TTD.
Did an agreement between the parties occur? Chief asserts in its brief that an agreement between the parties did occur. The Court said that the evidence Chief uses to support this assertion is lacking as a matter of law. In the final analysis of this case, there is simply no evidence of an agreement between Holmes and Chief to modify the running award. “Therefore, in the context of Brock’s seeking a lien against Holmes’ benefits, the representation of what Holmes ‘now receives’ allows, at most, the court to determine the amount that Brock should be paid by Chief for his lien from present benefits—but it does not prove the existence of the prerequisite agreement of the parties that has been approved by the court, as is required under § 48-141(1).”
Conclusion: Therefore, because no agreement existed between Holmes and Chief regarding a modification of the March 22, 2000, award, the Court found that the compensation court erred when it found that such a modification had occurred. For the reasons stated above, the Court reversed the compensation court’s finding that the October 24, 2003, order modified the march 22, 2000, award. REVERSED AND REMANDED WITH DIRECTIONS.
