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IN RE ESTATE OF NEWMAN

Cite as 25 Neb. App. 771

In re Estate of Harley Newman, dece

Linda Martens, Personal Representat

Estate of Harley Newman, deceased, appell

v. Stewart Newman, appella

___ N.W.2d ___

Filed April 17, 2018. No. A-16-1049.

1. Decedents’ Estates: Appeal and Error. An appellate court reviews probate 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 conclusion 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 opportunity to confront and cross-examine adverse witnesses and present 

evidence on the charge or accusation.

7. Constitutional Law: Prisoners. 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.

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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

04/24/2018 01:07 AM CDT
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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 transform 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 conditions 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: Crai

Q. McDermott, Judge. Reversed and remanded for a new tri

Stewart Newman, pro se.

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

appellee.

Pirtle, Bishop, and Arterburn, J

Pirtle, Judg

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 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 
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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 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 
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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 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 
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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 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.

[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 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 
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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, 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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[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 supplied.) 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 determined 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, procedural due process includes . . . a reasonable opportunity to 

refute or defend against a charge or accusation [and] a reasonable 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 matter . . . 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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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 initiate. 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 constitutional 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 situated 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 perfectly constitutional consequences of conviction and incarceration.” 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 participate in the trial by telephone was a deprivation of his fundamental 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 decision 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 evidence 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 parents 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 discovery ruling bears the burden of showing that the ruling was 

an abuse of discretion. Id.

In regard to the first discovery issue, Stewart filed various 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 responsible 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 conversations 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 subsequently filed a “Motion for Order to Release Discovery 

Information,” seeking telephone records and recorded conversations. 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 conversations 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.

Reversed and remanded for a new t