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IN RE ESTATE OF HELMS

Cite as 302 Neb. 357

In re Estate of Mark Anthony Helms, d

Christopher Helms, Personal Representative of th

of Mark Anthony Helms, deceased, appe

v. Gregory L. Turek et al., appelle

___ N.W.2d ___

Filed March 1, 2019. No. S-18-283.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to any material 

facts or as to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Judgments: Issue Preclusion: Appeal and Error. The applicability of 

issue preclusion is a question of law. On a question of law, an appellate 

court reaches a conclusion independent of the court below.

4. Judgments: Issue Preclusion. Issue preclusion applies where (1) an 

identical issue was decided in a prior action, (2) the prior action resulted 

in a final judgment on the merits, (3) the party against whom the doctrine is to be applied was a party or was in privity with a party to the 

prior action, and (4) there was an opportunity to fully and fairly litigate 

the issue in the prior action.

5. Decedents’ Estates: Venue. Under Neb. Rev. Stat. § 30-2410(a) (Reissue 

2016), venue for probate is proper in the county where the decedent was 

domiciled or, if the decedent was not domiciled in Nebraska, in any 

county where property of the decedent was located at the time of his or 

her death.

Appeal from the County Court for Butler County: C. Jo

Petersen, Judge. Affirme

Nebraska Supreme Court Online Library

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

05/17/2019 09:08 AM CDT
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IN RE ESTATE OF HELMS

Cite as 302 Neb. 357

Lindsay E. Pedersen and Katherine R. Hall for appellant.

Gregory M. Neuhaus and Joseph D. Neuhaus, of Neuhaus 

Law Offices, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, St

Papik, and Freudenberg

Cassel, J.

INTRODUCTION

Decades after the tragic death of Mark Anthony Helms in a 

terrorist bombing, his estate obtained a federal court wrongful 

death judgment determining that Helms had been domiciled 

in North Carolina and that damages would be shared according to that state’s law. After funds were collected on that 

judgment, his estate applied to the county court for Butler 

County, Nebraska, to distribute them instead under a Nebraska 

wrongful death statute.1 The county court entered summary 

judgment, declaring that the proceeds were to be distributed 

equally to Helms’ parents—being his heirs “as existed at the 

time of his death.” We conclude that because of the binding 

effect of the federal court judgment, the Nebraska wrongful 

death statute does not apply and the county court properly 

ordered distribution pursuant to the federal court judgment 

applying North Carolina law. We affirm the court’s entry of 

summary judgment.

BACKGROUND

Wrongful Death and Ju

On October 23, 1983, the Islamic Republic of Iran bombed 

a U.S. Marine barracks in Beirut, Lebanon. The bombing killed 

241 American servicemen, including Helms. Helms, who died 

intestate, was survived by his parents and two siblings.

1 Neb. Rev. Stat. § 30-810 (Reissue 2016).
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IN RE ESTATE OF HELMS

Cite as 302 Neb. 357

In 1996, an amendment2 to the Foreign Sovereign Immunities 

Act of 19763 allowed victims of state-sponsored terrorism to 

bring claims against foreign sovereigns that would otherwise be 

immune from civil litigation. In 2001, a claim for the wrongful 

death of Helms and other servicemen was brought in a case 

filed in the U.S. District Court for the District of Columbia. 

The federal court’s subsequent memorandum opinion does not 

name Helms’ personal representative, but recites that his estate 

was a party to the wrongful death action in federal court. At no 

time did a personal representative of Helms file an action for 

wrongful death in Nebraska.

In 2007, the U.S. District Court for the District of Columbia 

rendered judgment against the Islamic Republic of Iran.4

According to the court’s opinion, of the 128 deceased servicemen whose personal representatives and estates brought 

wrongful death claims, 123 were domiciled in North Carolina 

and none were domiciled in Nebraska.

The federal court’s opinion specifically stated: “[E]ach of 

the deceased servicemen has made out a valid claim for wrongful death under North Carolina law. Accordingly, those valid 

heirs and beneficiaries under North Carolina’s intestate statute 

are entitled to share in the recovery of the damages awarded 

as a result of each serviceman’s untimely death.”5 The court 

allocated $1,028,509 of the judgment to the wrongful death 

claim brought by the personal representative of Helms’ estate. 

Helms’ mother died approximately 5 months prior to the entry 

of this judgment.

In 2010, assets belonging to Iran that had been frozen by 

the U.S. government were discovered. A federal court allowed 

access to the assets, a decision which the U.S. Supreme Court 

2 See Pub. L. No. 104-132, § 221(a), 110 Stat. 1241.

3 28 U.S.C. § 1602 et seq. (2012 & Supp. IV 2016).

4 Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25 (D.D.C. 2007).

5 Id. at 40.
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Cite as 302 Neb. 357

later affirmed.6 In 2016, distribution of the assets commenced. 

The amount paid to the estate, after payment of attorney fees 

and expenses, amounted to $222,925.77. The disbursement 

check was drawn as follows:

PAY TO THE ORDER OF:

ESTATE OF MARK A HELMS

CHRISTOPHER T HELMS, PERSONAL REPRESENTATIVE

Petition for Dis

On March 30, 2017, the successor personal representative of 

the estate filed in an existing probate case in the county court 

for Butler County a petition to authorize distribution of the 

judgment proceeds under § 30-810. The petition alleged that 

Helms was domiciled in Butler County at the time of his death 

and that his next of kin were his parents and siblings.

According to the petition, Helms’ mother left any interest 

in the wrongful death claim to her spouse. Her spouse died 

in 2012, leaving all of his assets to his children, Gregory L. 

Turek, Pamela Joekel, and Deborah Michel (collectively the 

interested parties). The petition requested that the court hold a 

hearing and determine under § 30-810 the amount of the judgment proceeds that should be distributed to each next of kin 

who sustained damages.

Summary Judgm

The interested parties moved for summary judgment, and 

the county court sustained the motion. The court found “there 

exists no genuine issue as to any material fact regarding to 

whom said proceeds are to be distributed, that being the heirs 

of . . . Helms as existed at the time of his death, which by law 

are his parents equally.” The court ordered that the personal 

representative of the estate distribute one-half of the wrongful 

death proceeds to the estate of Helms’ mother and one-half to 

Helms’ father.

6 Bank Markazi v. Peterson, ___ U.S. ___, 136 S. Ct. 1310, 194 L. Ed. 2d 

463 (2016).
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IN RE ESTATE OF HELMS

Cite as 302 Neb. 357

The estate filed a timely appeal, which we moved to our 

docket.7

ASSIGNMENTS OF ERROR

The estate assigns eight errors, which we consolidate and 

restate to three: The court erred in (1) granting the interested 

parties’ motion for summary judgment relating to the distribution of wrongful death proceeds, (2) failing to comply with the 

provisions of § 30-810, and (3) finding that the wrongful death 

proceeds are to be distributed to Helms’ heirs as existed at the 

time of his death.

STANDARD OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law.8 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence.9

[3] The applicability of issue preclusion is a question of law. 

On a question of law, an appellate court reaches a conclusion 

independent of the court below.10

ANALYSIS

The crux of the estate’s appeal is its contention that § 30-810 

applies to the distribution of the federal court wrongful death 

judgment. Section 30-810 provides that “[t]he avails [of a 

7 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

8 In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017).

9 Id.

10 See In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
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wrongful death verdict or judgment] shall be paid to and distributed among the widow or widower and next of kin in the 

proportion that the pecuniary loss suffered by each bears to the 

total pecuniary loss suffered by all such persons.” This statute 

further requires that the court distribute any such proceeds “to 

the persons entitled thereto after a hearing thereon . . . .”11

However, we agree with the interested parties that § 30-810 has 

no application in the situation before us.

The estate’s argument based on § 30-810 fails, because we 

are not presented with a Nebraska wrongful death claim. No 

wrongful death action was brought and no judgment has been 

recovered pursuant to that statute for that death. The wrongful 

death judgment proceeds that the estate seeks to distribute were 

awarded in an action brought in the U.S. District Court for the 

District of Columbia under the wrongful death and intestate 

succession laws of North Carolina.12

[4] In distributing the proceeds of the federal court wrongful death action, the estate is barred from now asserting that 

Nebraska was Helms’ domicile at the time of his death. The 

federal court case determined that North Carolina was Helms’ 

domicile. Issue preclusion applies where (1) an identical issue 

was decided in a prior action, (2) the prior action resulted in 

a final judgment on the merits, (3) the party against whom the 

doctrine is to be applied was a party or was in privity with a 

party to the prior action, and (4) there was an opportunity to 

fully and fairly litigate the issue in the prior action.13 Here, 

all of those elements are satisfied. Helms’ domicile in North 

Carolina and his wrongful death pursuant to North Carolina 

law were decided in the federal court case,14 and that action 

resulted in a final judgment on the merits. Counsel for the 

11 § 30-810.

12 See Peterson v. Islamic Republic of Iran, supra note 4.

13 In re Interest of Noah B. et al., supra note 10.

14 See Peterson v. Islamic Republic of Iran, supra note 4.
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estate conceded at oral arguments that Helms’ personal representative was a party in the federal court case, which implicitly 

concedes that Helms’ successor personal representative here 

is in privity with that party. Finally, there was an opportunity 

to fully and fairly litigate Helms’ domicile in the prior action. 

Thus, the estate is bound by the federal court’s determination 

that North Carolina was Helms’ domicile.

It necessarily follows that the distribution of the wrongful death proceeds is governed by North Carolina law. Under 

that state’s wrongful death statute,15 any amount recovered 

is applied to certain expenses and attorney fees and is then 

distributed “as provided in the [North Carolina] Intestate 

Succession Act.” North Carolina’s Intestate Succession Act,16

in turn, states that “[i]f the intestate [decedent] is not survived 

by a child, children or any lineal descendant of a deceased 

child or children, but is survived by both parents, they shall 

take in equal shares, or if either parent is dead, the surviving 

parent shall take the entire share[.]”17 And the persons who, 

under that Intestate Succession Act, are entitled to recovery in 

a wrongful death action are to be determined as of the time of 

the decedent’s death.18 Because Helms was survived by his parents at the time of his death, North Carolina law dictates that 

they share equally in any wrongful death proceeds.

[5] The estate argues that because a probate case has been 

pending in Nebraska since 2001, “Helms must have been 

domiciled in Nebraska at the time of his death.”19 But that 

premise is flawed. Under Nebraska law, venue for probate is 

proper in the county where the decedent was domiciled or, if 

the decedent was not domiciled in Nebraska, in any county 

15 N.C. Gen. Stat. § 28A-18-2(a) (2007).

16 N.C. Gen. Stat. §§ 29-1 through 29-30 (2007).

17 § 29-15(3).

18 Bank v. Hackney, 266 N.C. 17, 145 S.E.2d 352 (1965).

19 Reply brief for appellant at 3.
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where property of the decedent was located at the time of 

his or her death.20 Thus, commencement of a probate case in 

Nebraska did not, in and of itself, preclude Helms from having 

been domiciled in North Carolina.

The estate instead may be implicitly arguing that the 

Nebraska probate case was commenced on the basis that Helms 

was domiciled in Nebraska. Assuming without deciding that 

the earlier pleadings in the probate case are properly before 

us and that these pleadings asserted that Helms was domiciled in Nebraska, any such allegation was immaterial here. 

Regarding distribution of proceeds of the federal court wrongful death judgment, the estate is collaterally estopped from 

asserting that Helms’ domicile is anywhere other than North 

Carolina. Likewise, the federal court judgment precludes the 

estate from distributing the proceeds other than in accordance 

with that judgment.

The county court properly entered summary judgment, 

because there is no genuine issue of material fact in this case. 

We agree with the court that the proper distribution of the proceeds is one-half to Helms’ father and one-half to the estate of 

Helms’ mother.

CONCLUSION

Because there is no genuine issue of material fact as to 

whom the wrongful death judgment proceeds should be distributed, we affirm the county court’s entry of summary judgment.

Affirme

20 Neb. Rev. Stat. § 30-2410(a) (Reissue 2016).