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IN RE ESTATE OF GRAHAM

Cite as 301 Neb. 594

In re Estate of Hilda M. Graham, deceased.

Merle Gallagher and Linda Clarke, 

appellants, v. Gregory G. 

Graham, appellee.

___ N.W.2d ___

Filed November 16, 2018. No. S-17-1296.

1. Decedents’ Estates: Appeal and Error. Appeals of matters arising 

under the Nebraska Probate Code are reviewed for error on the record.

2. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

3. Decedents’ Estates: Attorney Fees. Ordinarily, the fixing of reasonable 

compensation, fees, and expenses, pursuant to Neb. Rev. Stat. § 30-2480 

(Reissue 2016), governing compensation of personal representatives; 

Neb. Rev. Stat. § 30-2481 (Reissue 2016), governing expenses in estate 

litigation; and Neb. Rev. Stat. § 30-2482 (Reissue 2016), governing 

compensation of personal representatives and employees of the estate, is 

within the sound discretion of the county court.

4. Attorney Fees: Appeal and Error. When an attorney fee is authorized, 

the amount of the fee is addressed to the trial court’s discretion, and its 

ruling will not be disturbed on appeal absent an abuse of discretion.

5. Pretrial Procedure: Appeal and Error. Determination of an appropriate sanction for failure to comply with a proper discovery order initially 

rests with the discretion of the trial court, and its rulings on appropriate 

sanctions will not be disturbed on appeal absent a showing of an abuse 

of that discretion.

6. Rules of the Supreme Court: Appeal and Error. The cross-appeal 

section of an appellate brief must set forth a separate title page, a table 

of contents, a statement of the case, assigned errors, propositions of law, 

and a statement of the facts.

Nebraska Supreme Court Online Library

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

11/23/2018 12:11 AM CST
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IN RE ESTATE OF GRAHAM

Cite as 301 Neb. 594

7. ____: ____. When a brief of an appellee fails to present a proper crossappeal pursuant to Neb. Ct. R. App. P. § 2-109 (rev. 2014), an appellate 

court declines to consider its merits.

8. Appeal and Error. Absent plain error, an appellate court considers only 

an appellant’s claimed errors that the appellant specifically assigns in a 

separate “assignment of error” section of the brief and correspondingly 

argues in the argument section.

9. Decedents’ Estates: Executors and Administrators: Courts: 

Jurisdiction. A probate court’s jurisdiction and authority continue until 

an executor or administrator has fully complied with all its judgments, 

orders, and decrees and the estate has been placed in the possession of 

whom it devolves.

10. Decedents’ Estates: Courts: Jurisdiction. Pursuant to Neb. Rev. Stat. 

§ 30-2473 (Reissue 2016), county courts in ongoing probate proceedings have jurisdiction over surcharge motions brought against former 

personal representatives to recover losses to the decedent’s estate arising 

from an alleged breach of fiduciary duty.

11. Decedents’ Estates: Executors and Administrators: Damages: Proof. 

A beneficiary or designee seeking a surcharge against the personal representative for conversion, damage, or loss of estate property has the 

burden of proving that (1) a fiduciary duty was breached, (2) the breach 

of the fiduciary duty caused the losses alleged, and (3) the extent of 

those damages.

Appeal from the County Court for Douglas County: Thomas

K. Harmon, Judge. Affirmed.

Howard Kaiman and Edward W. Hasenjager for appellants.

Norman Denenberg for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

The designees of the decedent’s estate appeal the county 

court’s determination that the evidence was insufficient to 

prove damages for the conversion of estate property purportedly caused by the personal representative who was removed 
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Cite as 301 Neb. 594

for breaches of fiduciary duties. They also assert that the personal representative should have been surcharged for the attorney fees and successor personal representative fees because of 

his breaches of fiduciary duties and alleged frivolous defense 

to his removal. We affirm.

FACTS

Removal of Personal Representative

and Personal Property Damages

Gregory G. Graham (Graham) was the designated personal 

representative of the estate of Hilda M. Graham, who died on 

September 5, 2013. In accordance with the decedent’s last will 

and testament, Graham’s appointment as the personal representative followed.

A dispute developed between Graham and two interested 

parties in the estate, Merle Gallagher and Linda Clarke. Both 

Gallagher and Clarke were to inherit from the decedent’s will. 

Specifically, Clarke was to receive a “Peanuts collection” of 

figurines and Gallagher was to inherit full ownership of the 

decedent’s home, as well as the residual estate. After Graham 

distributed the personal property pursuant to the decedent’s 

will, Gallagher and Clarke alleged that they did not receive 

the entirety of what was bequeathed to them. As a result, they 

sought to have Graham removed as personal representative.

After a hearing, Graham was removed as personal representative of the estate and a successor personal representative, 

Edward Kasl, was appointed by the county court. Graham 

subsequently appealed that decision, and in case No. S-14-804, 

an unpublished memorandum opinion dated May 21, 2015, 

we reversed. We held that the county court erred in removing 

Graham as personal representative without having heard his 

evidence and testimony. We also held that the court erred in 

awarding damages when such relief was not requested. We 

remanded the matter, ordering a new hearing and directing that 

the case be reassigned to a new judge.
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Cite as 301 Neb. 594

At the hearing on remand, exhibit 101 was offered, but the 

county court sustained Graham’s relevancy objection to exhibit 

101 and did not receive it into evidence. Exhibit 101 consists 

of the entire bill of exceptions for the proceedings leading up 

to the order that we reversed in our memorandum opinion.

Gallagher and Clarke again presented evidence in support of Graham’s removal. They also moved for the court to 

assess damages against Graham for the alleged conversion, 

damage, or loss of estate property. Gallagher and Clarke testified that Graham maintained exclusive control over the real 

estate, as well as its contents, for a period in excess of 90 

days after the decedent’s death and failed to properly inventory the contents of the residence or provide an accounting 

of how the nonprobate estate assets were disposed of during 

that time.1

In support of their claims that certain items were stolen, 

damaged, or lost, Gallagher and Clarke offered testimony 

from various witnesses that the decedent, at some point before 

she died, had at least three jewelry boxes full of “expensive” 

jewelry. Gallagher and Clarke testified that the decedent had 

several items of “nice” clothing, various tools, and a number 

of documents in her home before her death. All of these items 

were absent from the decedent’s home at the time the keys to 

her home were finally transferred to Gallagher.

The court also received into evidence pictures of the decedent wearing certain pieces of jewelry from her collection. 

Additional testimony was received that, while attending the 

decedent’s funeral, Gallagher observed Graham’s wife wearing 

a pendant and a locket allegedly owned by the decedent.

Clarke testified that she had seen the decedent’s figurine 

collection in the past. She stated that it filled an entire hallway closet. When she arrived at Graham’s attorney’s office 

to retrieve the figurines she was to inherit, some were broken 

while others were completely missing.

1 See Neb. Rev. Stat. § 30-2467 (Reissue 2016).
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Cite as 301 Neb. 594

Graham testified that he was out of town for work during 

the months following the decedent’s death. As a result, Graham 

was unable to transfer the keys to the home to Gallagher. But 

he claimed that he had told Gallagher to contact Graham’s 

attorney for further information about obtaining the keys.

Graham attested that he emptied the entire contents of the 

decedent’s home and transferred the property to his home for 

safekeeping. He then transferred some of the property to his 

attorney’s office for distribution, but donated many articles of 

the decedent’s clothing. Graham testified that he delivered all 

property that was to be distributed to interested parties to his 

attorney’s office.

An inventory document was prepared by Graham’s attorney which set forth the items of personal property retrieved 

by Gallagher and Clarke at his office. Both Gallagher and 

Clarke signed this inventory document to indicate that they 

had received the items that were bequeathed to them. However, 

Gallagher and Clarke took exception to the contents of that 

inventory document, claiming Graham failed to list several 

items owned by the decedent that were in her home at the time 

of her death.

Graham maintained that the property he distributed was all 

that remained in the decedent’s home after her death. It was 

undisputed that Graham and Gallagher were both at the home 

near the time of the decedent’s death, but neither made a list 

of what was in the home. Both testified that hospice workers were also in and out of the home during the decedent’s 

final days.

On April 25, 2016, the court removed Graham as personal 

representative with an additional order that his status was terminated rather than discharged so he would remain responsible 

for any misdeeds he may have committed while acting as 

personal representative. The county court found that Graham 

had acted negligently and improvidently in denying access and 

then in failing to either protect or inventory the contents of 

the residence which he maintained under his exclusive control. 
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Cite as 301 Neb. 594

Thus, the court found that he had breached his fiduciary duty 

as a personal representative as it related to the filing of an 

inventory concerning personal property when he took control 

of nonprobate assets. Graham did not appeal within 30 days of 

the April 25 order.

In a subsequent order on September 26, 2017, the court 

denied Gallagher and Clarke’s motion to assess damages 

against Graham for his conversion, damage, or loss of estate 

property. The court reasoned that, based on the evidence 

presented, it could not determine beyond mere speculation 

whether or not Graham had converted, damaged, or lost assets 

of the estate.

Attorney Fees and Personal

Representative Fees

In addition to damages, Gallagher and Clarke sought attorney fees and personal representative fees for Kasl. Kasl had 

obtained counsel and performed services for the benefit of 

the estate, such as obtaining records from banks and attending meetings with his counsel while the first appeal was 

pending.

In its September 26, 2017, order, the county court awarded 

personal representative fees to Kasl to be paid from the estate. 

The court also awarded attorney fees to the attorney representing Gallagher, Clarke, and Kasl for services rendered on 

behalf of Kasl as successor personal representative. These fees 

were also to be paid from the estate.

In an order on April 26, 2016, the court appointed a second 

successor personal representative to close the estate. Graham 

was ordered to provide a full and complete inventory of all 

the decedent’s personal property as well as an account of his 

actions as personal representative. Graham failed to comply 

with this court order. As a result of his noncompliance and his 

prior-held breaches of his fiduciary duty, the court ordered as 

a form of sanction that Graham pay the second successor personal representative’s fees personally.
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Sanctions for Destruction of

Document After Ordered

to Compel

Gallagher and Clarke asserted that sanctions should be 

imposed on either Graham or his attorney for the spoliation of 

a document that they asserted could be relevant to the estate. 

Prior to her death, the decedent met with the attorney for 

Graham in this case to prepare a will and draft a deed to convey her home to Gallagher while she was still living. Gallagher 

was present at this meeting. Graham’s attorney drafted both 

the will and the deed shortly after their meeting. According 

to the attorney, although the decedent requested that a deed 

be prepared, she later decided that the real property would be 

conveyed to Gallagher by will instead.

After the commencement of the probate proceedings, 

Gallagher’s attorneys sought to compel the production of the 

deed three times. In September 2015, the county court ordered 

Graham to produce the deed. However, Graham’s attorney 

testified that he purposefully “trashed” the document approximately 4 months after the decedent’s death, stating he believed 

that it was attorney work product and not relevant because it 

was never delivered.

After an evidentiary hearing related to attorney fees in April 

2017, Gallagher and Clarke submitted a written closing argument requesting that the court levy $3,000 in attorney fees as 

a sanction against Graham for the destruction of this deed. The 

county court rejected this request for sanctions in its September 

26 order.

ASSIGNMENTS OF ERROR

On appeal, Gallagher and Clarke assign, reordered and 

rephrased, that the county court erred by not (1) awarding damages for Graham’s conversion, damage, or loss of property; (2) 

awarding fees to the successor personal representative, Kasl, 

personally against Graham by way of surcharge; (3) awarding 
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Cite as 301 Neb. 594

attorney fees and costs personally against Graham by way of 

surcharge; (4) imposing sanctions against Graham or his attorney for the destruction of a deed of conveyance of real estate 

executed by the deceased in favor of Gallagher; and (5) receiving into evidence exhibit 101.

Although Graham attempts to cross-appeal, the format and 

substance of his brief on cross-appeal fail to adhere to the 

briefing requirements found in Neb. Ct. R. App. P. § 2-109 

(rev. 2014). As such, we decline to address his assignments of 

error on cross-appeal.

STANDARD OF REVIEW

[1,2] Appeals of matters arising under the Nebraska Probate 

Code are reviewed for error on the record.2 When reviewing 

a judgment for errors appearing on the record, an appellate 

court’s inquiry is whether the decision conforms to the law, 

is supported by competent evidence, and is neither arbitrary, 

capricious, nor unreasonable.3 When reviewing a decision of 

the probate court, the appellate court does not reweigh the evidence and must consider the evidence in the light most favorable to the successful party, who is entitled to every reasonable 

inference available from the evidence.4

[3] Ordinarily, the fixing of reasonable compensation, fees, 

and expenses, pursuant to Neb. Rev. Stat. § 30-2480 (Reissue 

2016), governing compensation of personal representatives; 

Neb. Rev. Stat. § 30-2481 (Reissue 2016), governing expenses 

in estate litigation; and Neb. Rev. Stat. § 30-2482 (Reissue 

2016), governing compensation of personal representatives and 

employees of the estate, is within the sound discretion of the 

county court.5

2 In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).

3 Id.

4 In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d 645 (2006).

5 See In re Estate of Odineal, 220 Neb. 168, 368 N.W.2d 800 (1985).
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[4] When an attorney fee is authorized, the amount of the 

fee is addressed to the trial court’s discretion, and its ruling 

will not be disturbed on appeal absent an abuse of discretion.6

[5] Determination of an appropriate sanction for failure to 

comply with a proper discovery order initially rests with the 

discretion of the trial court, and its rulings on appropriate sanctions will not be disturbed on appeal absent a showing of an 

abuse of that discretion.7

ANALYSIS

Issues Not Properly Raised on

Appeal and Cross-Appeal

As a threshold matter, we must determine what assignments 

of error were properly raised and argued on appeal.

[6] As stated above, Graham did not properly cross-appeal. 

Section 2-109(D)(4) of our court rules of appellate practice 

provides:

Where the brief of appellee presents a cross-appeal, it 

shall be noted on the cover of the brief and it shall be set 

forth in a separate division of the brief. This division shall 

be headed “Brief on Cross-Appeal” and shall be prepared 

in the same manner and under the same rules as the brief 

of appellant.

Thus, the cross-appeal section of an appellate brief must set 

forth a separate title page, a table of contents, a statement of 

the case, assigned errors, propositions of law, and a statement 

of the facts.8

[7] Graham’s cross-appeal section fails to set forth a separate 

title page, a table of contents, a statement of the case, assigned 

errors, or propositions of law. When a brief of an appellee 

fails to present a proper cross-appeal pursuant to § 2-109, we 

6 In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).

7 Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011).

8 See Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015).
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decline to consider its merits.9 As such, we do not consider the 

merits of Graham’s purported cross-appeal.

[8] Gallagher and Clarke, in their appellate brief, assign as 

error that the county court erred in not receiving exhibit 101 

into evidence, but they fail to argue this assignment of error 

substantively in their brief. Absent plain error, an appellate 

court considers only an appellant’s claimed errors that the 

appellant specifically assigns in a separate “assignment of 

error” section of the brief and correspondingly argues in the 

argument section.10 Because Gallagher and Clarke failed to 

argue this assignment of error in the argument section of their 

brief, and we do not find plain error in the county court’s ruling, we will not consider it.

We turn now to the issues on appeal that were properly 

presented. Those are whether the county court erred in failing 

to (1) award damages against Graham for conversion, damage, or loss of property; (2) assess successor personal representative fees on Graham personally by way of surcharge; 

and (3) award attorney fees for the motions to remove and 

surcharge Graham.

Conversion, Damage, or Loss

of Estate Property

[9] Gallagher and Clarke argue that the court erred in failing to find that Graham converted, damaged, or lost property 

bequeathed to them, and in failing to order Graham to pay 

damages to the estate accordingly. Generally, the county court 

has exclusive original jurisdiction over all matters relating 

to decedents’ estates.11 The relevant portion of the Nebraska 

Probate Code, Neb. Rev. Stat. § 30-2473 (Reissue 2016), 

9 See id.

10 C.E. v. Prairie Fields Family Medicine, 287 Neb. 667, 844 N.W.2d 56 

(2014).

11 See Neb. Rev. Stat. § 24-517 (Supp. 2017). See, also, Line v. Rouse, 241 

Neb. 779, 491 N.W.2d 316 (1992).
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provides that “the personal representative is liable to interested 

persons for damage or loss resulting from breach of his fiduciary duty.” It has been held that county courts have plenary 

powers for the exercise of that jurisdiction.12 A probate court’s 

jurisdiction and authority continue until an executor or administrator has fully complied with all its judgments, orders, and 

decrees and the estate has been placed in the possession of 

whom it devolves.13

[10] Pursuant to § 30-2473, county courts in ongoing probate 

proceedings have jurisdiction over surcharge motions brought 

against former personal representatives to recover losses to the 

decedent’s estate arising from an alleged breach of fiduciary 

duty.14 Our courts have thus reviewed the merits of surcharge 

motions that have claimed damages to the estate sustained 

from the personal representative’s breach of fiduciary duty 

by wrongfully loaning funds of the estate,15 attempting to sell 

real estate within the residuary estate to the general public as 

opposed to the decedent’s family,16 and failing to file federal 

estate tax returns.17 Though we have never addressed a motion 

to surcharge the personal representative for his or her direct 

conversion, damage, or loss of the decedent’s former personal 

property, we conclude that such a motion is properly brought 

within the probate proceeding, because the facts underlying 

such motions ultimately concern the probate of the decedent’s 

will and the distribution of the decedent’s property.

12 Klug v. Seegabarth, 98 Neb. 272, 152 N.W. 385 (1915).

13 In re Estate of Statz, 144 Neb. 154, 12 N.W.2d 829 (1944).

14 See, In re Estate of Watkins, 243 Neb. 583, 501 N.W.2d 292 (1993); In re 

Estate of Statz, supra note 13; In re Estate of Snover, 4 Neb. App. 533, 546 

N.W.2d 341 (1996). Compare Line v. Rouse, supra note 11. See, also, 31 

Am. Jur. 2d Executors and Administrators § 847 (2012) (stating generally 

that court may surcharge personal representative for breach of duty).

15 In re Estate of Statz, supra note 13.

16 In re Estate of Watkins, supra note 14.

17 In re Estate of Snover, supra note 14.
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Gallagher and Clarke’s motion seeking damages for conversion, damage, or loss of estate property, while not using the 

word “surcharge,” was in substance a motion to surcharge the 

personal representative for his breach of fiduciary duty. The 

county court had jurisdiction to determine whether Graham 

should restore to the estate the property improperly converted, 

damaged, or lost as a result of Graham’s alleged breach 

of duty in his capacity as personal representative for the 

estate. We next determine whether the court erred in denying 

the motion.

We have never specifically addressed the burden of proof 

for motions to surcharge. In other jurisdictions, parties seeking surcharge have the burden of proving that the representative failed to meet his or her duty of care.18 Placing the 

burden on the movant is also consistent with other claims of 

breach of fiduciary duty in which the plaintiff is required to 

prove that the defendant’s breach of fiduciary duty caused 

the plaintiff damages and the extent of those damages.19 And 

this burden is consistent with the general principle of trust 

law that “[w]hen a plaintiff brings suit against a trustee for 

breach of trust, the plaintiff generally bears the burden of 

proof.”20 Under Nebraska’s trust law related to fraud, a beneficiary establishes a prima facie case of fraud by showing 

that a trustee’s transaction benefited the trustee at the beneficiary’s expense.21

[11] Consistent with these principles, we hold that the 

party seeking a surcharge carries the burden to show that 

the representative failed to meet his or her duty of care.22 A 

18 31 Am. Jur. 2d, supra note 14, § 848; 34 C.J.S. Executors and 

Administrators § 1024 (2009).

19 McFadden Ranch v. McFadden, 19 Neb. App. 366, 807 N.W.2d 785 

(2011).

20 Restatement (Third) of Trusts § 100, comment f. at 68 (2012).

21 In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).

22 See, e.g., 31 Am. Jur. 2d, supra note 14, § 848; 34 C.J.S., supra note 18.
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beneficiary or designee seeking a surcharge against the personal representative for conversion, damage, or loss of estate 

property has the burden of proving that (1) a fiduciary duty 

was breached, (2) the breach of the fiduciary duty caused the 

losses alleged, and (3) the extent of those damages.23

In this case, the county court found that while Graham 

breached his fiduciary duty as personal representative by failing to properly inventory the estate’s property, Gallagher and 

Clarke had failed to prove that Graham’s breach involved 

or resulted in the conversion, damage, or loss of the decedent’s personal property that allegedly was in her home when 

Graham took possession. We conclude that the county court’s 

decision in this regard conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable.

The record indicates that Graham and Gallagher were not 

the only people visiting the decedent’s home before her death. 

Gallagher and Graham testified that hospice workers frequented 

the home during the decedent’s final weeks. Further, there was 

no evidence presented to prove that the decedent did not simply dispose of the property herself. Graham testified that he 

delivered all property that was to be distributed to interested 

parties to his attorney’s office.

The county court was not unreasonable in concluding, based 

upon the evidence presented, that it could not be assumed that 

there was malfeasance by Graham nor could it be presumed 

that he acted honestly. In other words, the county court did 

not err in concluding that Gallagher and Clarke had failed 

to meet their burden to show that Graham had breached a 

fiduciary duty, causing the losses alleged, and the extent of 

those damages.

23 See, Lefkowitz v. Bank of New York, 676 F. Supp. 2d 229 (S.D.N.Y. 2009); 

In re Estate of Hedke, supra note 21; McFadden Ranch v. McFadden, 

supra note 19.
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Successor Personal

Representative Fees

Gallagher and Clarke next assert that the court erred in 

ordering Kasl’s fees to be paid out of the estate rather than 

by Graham personally. Gallagher and Clarke rely on the language of § 30-2473 that “[i]f the exercise of power concerning 

the estate is improper, the personal representative is liable to 

interested persons for damage or loss resulting from breach of 

his fiduciary duty to the same extent as a trustee of an express 

trust.” They assert that Graham’s breach was the proximate 

cause of Kasl’s fees and that therefore, Graham should be 

required to pay Kasl’s fees.

Under § 30-2480, a personal representative is entitled to 

reasonable compensation; under § 30-2481, a personal representative who defends or prosecutes any proceeding in good 

faith is entitled to receive from the estate his or her necessary 

expenses and disbursements; and under § 30-2482, the reasonableness of the compensation determined by the personal representative for his or her own services may be reviewed by the 

court. We have held that the fixing of reasonable compensation 

is within the sound discretion of the county court.24

We have permitted any person beneficially interested in 

the estate embraced in an administration account to cite the 

executor or administrator to file an account, object, or file 

objections to the terms or matters contained in the account, 

and the personal representative in a proper proceeding may 

be surcharged with losses occurring because of a breach 

of trust.25 An action to surcharge a personal representative 

may be brought to recover losses to the estate for an alleged 

breach of fiduciary duty by the personal representative.26

The measure of damages is the monetary damage to the 

24 In re Estate of Odineal, supra note 5.

25 In re Estate of Statz, supra note 13.

26 Line v. Rouse, supra note 11.
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estate caused by the personal representative’s breach of fiduciary duties.27

However, Gallagher and Clarke fail to present any statutory authority or case law which mandates that a county court 

must assess against the removed personal representative the 

successor personal representative’s fees and expenses. In the 

instant matter, it is unclear from the record exactly how or 

to what extent Graham’s breach of fiduciary duty caused the 

estate to incur additional personal representative fees. The 

record indicates that at the time of Kasl’s appointment, further 

actions were necessary to close the estate either by the original 

personal representative or by the successor personal representative, such as preparing inventories and accountings and determining an inheritance tax. Further, the record indicates that a 

portion of Kasl’s actions as successor personal representative 

were in line with the actions Graham would have needed to 

complete had he continued as personal representative, including dealing with the ongoing litigation.

We note that the county court’s order requiring Graham to 

personally pay the second successor personal representative’s 

fees is distinguishable from its denial of Gallagher and Clarke’s 

request to surcharge Graham for Kasl’s fees. According to 

the county court’s September 26, 2017, order, Graham was 

required to pay the second successor personal representative’s 

fees as a form of sanction as a result of his noncompliance 

to prior court orders and in contemplation of his prior-held 

breaches of his fiduciary duty.

When reviewing a decision of the probate court, the appellate court does not reweigh the evidence and must consider 

the evidence in the light most favorable to the successful 

party, who is entitled to every reasonable inference deducible from the evidence.28 We conclude that the probate court 

27 Id.

28 In re Estate of Lamplaugh, supra note 4.
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did not abuse its discretion by refusing to order Graham be 

personally responsible for Kasl’s successor personal representative fees.

Attorney Fees for Claims

of Removal and Damage

to Estate Property

Gallagher and Clarke also assign as error that the county 

court erred in declining to award them, either from the estate 

or against Graham, the attorney fees they incurred while litigating their motion to remove Graham as personal representative and their motion to surcharge Graham for conversion, 

damage, or loss of estate property. As a general rule, attorney 

fees and expenses are recoverable only where provided for by 

statute or when a recognized and accepted uniform course of 

procedure has been to allow recovery of attorney fees.29

In Gallagher and Clarke’s argument to the probate court for 

attorney fees incurred in litigating their motions to remove 

and to surcharge, they failed to point to any statute or uniform course of procedure for such an award. They merely 

argued that because of Graham’s breach of his fiduciary duty, 

they were required to act in the protection of their interests 

by bringing the removal action and, therefore, were entitled 

to recover the entirety of their attorney fees. Based on the 

arguments presented below, the county court did not abuse its 

discretion in refusing to award additional attorney fees beyond 

those incurred for Kasl’s representation.

On appeal, Gallagher and Clarke raise for the first time that 

attorney fees were proper under Neb. Rev. Stat. § 25-824(4) 

(Reissue 2016), which governs frivolous claims or defenses 

in civil proceedings. We have never held that § 25-824 

applies to probate proceedings, and appellate courts do not 

29 Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004). See, also, 

In re Estate of Snover, supra note 14 (applying this principal in probate 

case).
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IN RE ESTATE OF GRAHAM

Cite as 301 Neb. 594

generally consider arguments and theories raised for the first 

time on appeal.30 Applying that principle, we decline to address 

Gallagher and Clarke’s frivolous defense theory for attorney fees.

Attorney Fees as

Discovery Sanction

Gallagher and Clarke also argue that Graham’s attorney’s 

destruction of a deed of conveyance, after Graham had been 

compelled and ordered to turn over the document, warranted 

discovery sanctions in the form of attorney fees. The county 

court declined to impose sanctions on Graham or Graham’s 

attorney with regard to the destruction, but, as discussed, did 

sanction Graham for his failure to provide the second successor 

personal representative an account of his actions as personal 

representative. The determination of an appropriate sanction 

for failure to comply with a proper discovery order initially 

rests with the discretion of the trial court, and its rulings on 

appropriate sanctions will not be disturbed on appeal absent a 

showing of an abuse of that discretion.31

Sanctions for failing to comply with court-ordered discovery are governed under Neb. Ct. R. Disc. § 6-337, commonly 

referred to as “Rule 37.” Rule 37 sanctions serve several 

purposes. First, they punish a litigant or counsel who might 

be inclined to frustrate the discovery process.32 Second, they 

deter those who are tempted to break the rules.33 Finally, they 

prevent parties who have failed to meet their discovery obligations from profiting from their misconduct.34 Relevant factors 

that are reviewed when determining whether a sanction is 

30 Maroulakos v. Walmart Associates, 300 Neb. 589, 915 N.W.2d 432 (2018).

31 Booth v. Blueberry Hill Restaurants, 245 Neb. 490, 513 N.W.2d 867 

(1994).

32 Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016).

33 Id.

34 Id.
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301 Nebraska Reports

IN RE ESTATE OF GRAHAM

Cite as 301 Neb. 594

appropriate include the prejudice or unfair surprise suffered 

by the party seeking sanctions, the importance of the evidence 

which is the root of the misconduct, whether the court warned 

the sanctioned party about the consequences of its misconduct, whether the court considered less drastic sanctions, the 

sanctioned party’s history of discovery abuse, and whether the 

sanctioned party acted willfully or in bad faith.35

We conclude that the court did not abuse its discretion by 

refusing to impose sanctions on Graham or his counsel for 

destruction of the deed of conveyance. In considering the 

above factors, this deed of conveyance would not have and 

did not prejudice or unfairly surprise Gallagher and Clarke. In 

fact, the residence was already conveyed by will to Gallagher 

when the probate proceedings commenced,36 and Gallagher 

and Clarke do not explain on appeal how they were prejudiced by any possible delay between the time of the alleged 

deed and the conveyance by will. We cannot find that the 

county court’s decision to decline sanctions in the form of 

attorney fees resulted in an outcome that was untenable and 

unfairly deprived the litigants of a substantial right or a 

just result.

CONCLUSION

For the reasons stated above, we affirm the county court’s 

judgment in this matter.

Affirmed.

35 Id.

36 See Hagn v. Verret, 143 Neb. 820, 11 N.W.2d 551 (1943).