Petersen v. Central Park Properties

220 	275 Nebraska reports
albeit confusingly. and since no standard of need allowance
was available for inpatient care, DHHs’ assessment of Holmes’
personal needs allowance was the only allowance that DHHs
was required to assess for inpatient care. thus, DHHs was cor-
rect in determining that $50 should be deducted from Holmes’
unearned income for the time he spent in inpatient care and that
$730 should be deducted from Holmes’ unearned income for
the time he spent in outpatient care.
CoNCLusIoN
the district court erred in requiring DHHs to perform an
analysis of Holmes’ ability to return to his house as of the time
of the ability-to-pay determination made by DHHs and erred in
remanding the case for a personal needs analysis. DHHs was
correct in its determination of Holmes’ ability to pay for his
care from the NrC. We therefore reverse the judgment of the
district court for Lancaster County and remand the cause with
directions to reinstate the director’s order.
reverSed ANd remANded With direCtioNS.
lArry e. peterSeN ANd J oyCe A. peterSeN, huSbANd ANd Wife ,
AppelleeS, v . C eNtrAl pArk propertieS, iNC., et Al .,
AppelleeS, ANd reAlty liNC, iNC., doiNg buSiNeSS
AS erA reAlty C eNter , gArNiShee -AppellANt .
745 N.W.2d 884
Filed March 7, 2008. 	No. s-06-1289.
1. Garnishment: Appeal and Error. Garnishment is a legal proceeding. to the
extent factual issues are involved, the findings of a garnishment hearing judge
have the effect of findings by a jury and, on appeal, will not be set aside unless
clearly wrong.
2. Judgments: Debtors and Creditors: Garnishment. upon establishing through
pleadings and trial that the garnishee holds property or credits of the judgment
debtor, the garnishee must then pay such amounts to the court in satisfaction of
the judgment against the judgment debtor, subject to certain statutory exceptions
with regard to wages.
3. Garnishment: Pretrial Procedure. as a general rule, a garnishee owes a duty
to act in good faith and answer fully and truthfully all proper interrogatories pre-
sented to him.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

4. ____: ____. a garnishee is expected to, in some appropriate manner, properly
disclose all relevant facts within his knowledge at the time of submitting an
answer concerning his indebtedness to the judgment debtor or concerning money
or property of the judgment debtor then in his possession.
appeal from the District Court for Hall County: JAmeS
liviNgStoN, Judge. affirmed.
todd V. elsbernd, of bradley, elsbernd, emerton, andersen &
kneale, p.C., for appellant.
Mark porto, of shamberg, Wolf, McDermott & Depue, for
appellee Jennifer a. bauer.
heAviCAN, 	C.J., 	W right , 	C oNNolly , 	gerrArd , 	S tephAN,
mCC ormACk , and miller -lermAN, JJ.
W right , J.
Nature oF Case
Jennifer a. bauer filed an application to determine the liabil-
ity of the garnishee, realty Linc, Inc., doing business as era
realty Center. bauer sought to collect on a judgment entered
against e.W. skala. the Hall County District Court determined
that Gary thompson, president of realty Linc, had not accu-
rately answered garnishment interrogatories. the court entered
judgment against realty Linc in the amount of $19,137 plus
costs. realty Linc appeals.
sCope oF reVIeW
[1] Garnishment is a legal proceeding. to the extent factual
issues are involved, the findings of a garnishment hearing judge
have the effect of findings by a jury and, on appeal, will not
be set aside unless clearly wrong. Spaghetti Ltd. Partnership v.
Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002).
FaCts
on May 13, 2004, the Merrick County Court entered a judg-
ment on a promissory note for Larry e. petersen and Joyce
a. petersen against four parties: Central park properties, Inc.;
roland e. reynolds; bauer; and skala. the judgment with
interest totaled $30,291.40. bauer filed a cross-claim against
reynolds and skala, and the court entered judgment for bauer.
peterseN v. CeNtraL park propertIes 	221
Cite as 275 Neb. 220

222 	275 Nebraska reports
reynolds and skala were ordered to reimburse bauer for any
payments made by her against the judgment.
In order to collect on the cross-claim, bauer sought to
garnish wages from skala, who was a real estate agent with
realty Linc. on september 8, 2006, a “summons and order
of Garnishment in aid of execution” was filed in Hall County
District Court naming realty Linc as the garnishee. the judg-
ment debtor was identified as skala, and the judgment creditor
was identified as bauer. the summons informed realty Linc
that it was required by law to answer the attached interrogato-
ries and to file them within 10 days. the summons indicated
that realty Linc was obligated to hold any wages due to skala
to the extent of the amount due and to pay to skala the dispos-
able earnings not subject to garnishment, as determined accord-
ing to the interrogatories and instructions. If realty Linc did
not answer the interrogatories, it would be presumed to owe
skala the full amount of bauer’s claim. the amount due on the
judgment was listed as $33,868.25.
Interrogatories were answered by thompson, as president of
realty Linc. the first question on the interrogatory form asked
if skala, the judgment debtor, was currently in thompson’s
employ. thompson’s response was “Yes.” thompson responded
“No” to questions that asked if he owed skala any money for
wages on the date and time thompson was served with the
garnishment and if realty Linc would owe earnings to skala
within the next 60 days. the interrogatories asked how often
skala was paid, and thompson wrote in “Commission.” In
response to a question that asked for the judgment debtor’s
earnings for the pay period, thompson wrote “Commission.”
the interrogatories then asked for the amount required by law
to be deducted from the judgment debtor’s earnings, for the
judgment debtor’s disposable earnings for the pay period, and
for the portion of the judgment debtor’s disposable earnings
that were subject to the garnishment order. thompson indicated
“N/a” to each of the questions. the form directed realty Linc
to calculate the amount of disposable earnings by referring to
the “employer’s Instruction sheet.” such an instruction sheet is
not included in the record before us.

thompson 	replied 	“No” 	to 	additional 	questions 	asking
whether any of skala’s earnings were currently withheld pursu-
ant to any other order, such as a withholding order or a continu-
ing lien. the form stated, “based upon the above answers, the
amount of wages being withheld on this garnishment is: ____.”
thompson did not enter any amount. the interrogatories also
asked if realty Linc had any property belonging to skala, or
credits or monies owed to skala, whether due or not, other than
the earnings described previously. thompson responded, “No.”
If the answer was “Yes,” the form then asks the garnishee to
specify whether it was property or to provide the “[a]mount of
money or credits you owe the judgment debtor, other than earn-
ings.” It also asked for the “[d]ate the money or credits were
due, or will be due.”
after the interrogatories were filed, bauer filed an applica-
tion against realty Linc, the garnishee, seeking to determine
liability. she alleged that the answers and disclosures given
by thompson were not satisfactory, were wholly inadequate,
and failed to provide the information requested in the garnish-
ment. she sought judgment against realty Linc in the sum of
$33,868.25.
thompson was ordered to appear in court to respond to
bauer’s application. at a hearing on september 29, 2006,
thompson stated that he had completed and signed the inter-
rogatories. He stated that skala was an associate broker in
realty Linc’s office in Grand Island, Nebraska, and, as such,
thompson considered skala an independent contractor, not
an employee of the corporation. When asked if skala was
in thompson’s employ, he stated, “[I]t depends on how you
define, ‘employ.’” thompson said he indicated “Yes” on the
interrogatory asking whether skala was in his employ with-
out further explanation because there “was no opportunity to
answer any other way.”
thompson stated that skala was paid on commission by
realty Linc and that at the time thompson completed the inter-
rogatories, he was not aware that skala was due to receive any
commissions in the next 60 days. thompson said he asked the
company’s comptroller if any funds had been received as a
peterseN v. CeNtraL park propertIes 	223
Cite as 275 Neb. 220

224 	275 Nebraska reports
result of any real estate closings, and thompson was told no
funds had been received. thompson admitted that he would
have owed earnings to skala if there had been any real estate
closings in the 60 days following completion of the interroga-
tories. at the time he answered the interrogatories, thompson
knew skala had closings scheduled within the next 60 days,
but he said he did not know that the company would owe skala
any money in that time period. thompson had no specific
reason to believe that any of the scheduled closings would not
take place.
thompson said that on average, skala had received a com-
mission at least monthly. thompson stated that he completed
the interrogatories to the best of his ability given the way the
questions were drafted.
alvin avery, managing broker for the Woods brothers realty
office in Grand Island, testified that for two properties that
closed in the 3-week period prior to the hearing and in which
Woods brothers realty was involved, skala was the selling
agent or listing agent. For those sales, skala was entitled to
commissions of approximately $3,357. avery also provided
information that skala was involved in six additional closings
between september 7 and 22, 2006. avery said the customary
fee arrangement in real estate allows the listing company to
retain 60 percent of the commission and the selling company
to receive 40 percent of the commission. He stated that the
total of commissions due to realty Linc for the eight properties
sold in the 3-week period after september 7 equaled approxi-
mately $19,000.
the district court entered an order finding that based on testi-
mony and evidence, skala had generated commissions totaling
$19,137 within 21 days of the date the interrogatories were
answered by thompson. It determined that thompson knew
or should have known that skala had commissions to be paid
within the 60 days following the completion of the interroga-
tories, in which thompson denied that he owed skala money.
the court found that the answers given by thompson were not
accurate because thompson owed skala commissions at the
time thompson answered the interrogatories. the court entered

judgment in favor of bauer and against realty Linc in the sum
of $19,137 plus costs.
assIGNMeNts oF error
realty Linc assigns that the district court erred (1) in deter-
mining that realty Linc, its agents, and its employees knew
or should have known that skala had commissions to be paid
within 60 days following the completion of interrogatories from
bauer; (2) in finding that commissions/earnings were owed to
skala at the time thompson answered the interrogatories on
behalf of realty Linc; (3) in finding that the answers given by
thompson were not answered in full and good faith; and (4) in
ordering judgment in favor of bauer and against realty Linc in
the sum of $19,137 plus costs of the action.
aNaLYsIs
the issue here is whether the district court erred in finding
that thompson, on behalf of realty Linc, did not accurately
answer the interrogatories. Garnishment is a legal proceeding. to
the extent factual issues are involved, the findings of a garnish-
ment hearing judge have the effect of findings by a jury and, on
appeal, will not be set aside unless clearly wrong. Spaghetti Ltd.
Partnership v. Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002).
We begin by briefly reviewing the garnishment procedure.
When a judgment has been entered by a court, the judgment
creditor may file an affidavit in the office of the clerk of the
court where the judgment has been entered, stating that the
judgment creditor has reason to believe that a person, partner-
ship, limited liability company, or corporation has property of
and is indebted to the judgment debtor. see Neb. rev. stat.
§ 25-1056(1) (Cum. supp. 2006). the clerk then issues a sum-
mons setting forth the amount due on the judgment, interest,
and costs as shown in the affidavit and requiring the garnishee
to answer written interrogatories to be furnished by the judg-
ment creditor. Id. a copy of the summons and order of garnish-
ment must be sent by the judgment creditor to the judgment
debtor by certified mail. Neb. rev. stat. § 25-1011(2) (reissue
1995). the garnishee must answer the summons within 10 days
from the date of service. § 25-1056(1).
peterseN v. CeNtraL park propertIes 	225
Cite as 275 Neb. 220

226 	275 Nebraska reports
When wages are involved, the garnishee must pay to the
employee/judgment debtor all disposable earnings exempted
from garnishment by statute. Id. any disposable earnings that
remain after such payment shall be retained by the garnishee
until further order of the court. Id.
the judgment debtor may request a hearing if he or she
believes the garnishment should not be allowed either because
the funds sought are exempt or because the amount is not owed
on the judgment. see § 25-1011(4)(c). such a hearing must be
held within 10 days of the request. § 25-1011(5).
the judgment creditor may apply to the court for an order
transferring the nonexempt earnings withheld by the garnishee
to the court for delivery to the judgment creditor if it appears
from the garnishee’s answer (1) that the judgment debtor was
an employee of the garnishee, (2) that the garnishee otherwise
owed earnings to the judgment debtor when the garnishment
order was served, or (3) that earnings would be owed within 60
days and there is no written objection to the order or the answer
of the garnishee filed. see § 25-1056(2).
state law also provides that the garnishee shall answer
under oath all interrogatories concerning property or credits of
the judgment debtor and that the garnishee shall disclose the
amount owed to the judgment debtor. Neb. rev. stat. § 25-1026
(reissue 1995). If the garnishee fails to answer the interrogato-
ries, it is presumed that the garnishee is indebted to the judg-
ment debtor in the full amount of the claim of the judgment
creditor. Neb. rev. stat. § 25-1028 (reissue 1995).
If the garnishee’s answers to interrogatories are not satis-
factory to the judgment creditor or if the garnishee does not
comply with an order of the court by paying the money owed
into the court, the judgment creditor may file an application for
determination of the liability of the garnishee. see Neb. rev.
stat. § 25-1030 (reissue 1995). the application may controvert
the garnishee’s answer, or it may allege facts to show the exis-
tence of indebtedness of the garnishee to the judgment debtor.
Id. the garnishee’s answer and the application for determina-
tion of the liability of the garnishee constitute the pleadings

upon which trial as to the garnishee’s liability shall be held.
Id. such a trial is conducted as a civil action. Neb. rev. stat.
§ 25-1030.02 (reissue 1995).
If it is demonstrated at the trial of the garnishee’s liability
that the garnishee was indebted to the judgment debtor or had
any property or credits of the judgment debtor in the garnishee’s
possession or under his control at the time of being served with
the notice of garnishment, the garnishee is liable to the judg-
ment creditor for the full amount of the judgment or for the
amount of such indebtedness or property held by the garnishee.
see id. the judgment creditor may then have a judgment against
the garnishee for the amount of money due from the garnishee
to the judgment debtor in the original action. Id.
In the case at bar, bauer became the judgment creditor when
she obtained a judgment against skala, the judgment debtor,
in the original action. bauer sought to garnish skala’s wages
from his employer, realty Linc, the garnishee, by filing the
summons for garnishment in aid of execution. bauer claimed
that thompson, as realty Linc’s representative, had not ade-
quately answered the interrogatories, and she filed an applica-
tion against realty Linc as garnishee to determine liability. a
hearing was held to determine whether thompson had satisfac-
torily responded to the interrogatories.
thompson testified at the hearing that skala was an inde-
pendent contractor who received commissions when real estate
closings occurred. although thompson indicated in the inter-
rogatories that he did not owe skala any money for wages and
that he would not owe skala any earnings within the next 60
days, thompson admitted at the hearing that he knew there
were closings scheduled within the next 60 days for proper-
ties either listed or sold by skala. even though skala had on
average received a commission at least monthly in the past,
thompson claimed he did not know that the company would
owe skala any money in the next 60 days. avery, a real estate
broker for another company in Grand Island, testified that skala
was involved in eight closings between september 7 and 22,
2006, with total commissions of approximately $19,000.
peterseN v. CeNtraL park propertIes 	227
Cite as 275 Neb. 220

228 	275 Nebraska reports
the district court determined that thompson knew or should
have known that skala had commissions that would be paid
within the 60 days following service of the interrogatories and
that, therefore, thompson’s answers to the interrogatories were
not accurate. the court entered judgment in favor of bauer and
against realty Linc.
[2] Nebraska law requires the garnishee to answer writ-
ten interrogatories furnished by the judgment creditor. upon
establishing through pleadings and trial that the garnishee holds
property or credits of the judgment debtor, the garnishee must
then pay such amounts to the court in satisfaction of the judg-
ment against the judgment debtor, subject to certain statutory
exceptions with regard to wages. Spaghetti Ltd. Partnership v.
Wolfe, 264 Neb. 365, 647 N.W.2d 615 (2002). bauer established
at the hearing that realty Linc held commissions due to skala,
which in turn could be used to satisfy his debt to bauer.
[3,4] at 	the 	hearing, thompson 	equivocated 	about 	his
answers to the interrogatories. He admitted that skala was in
his employ. but then thompson sought to qualify the definition
of “employ.” He stated that he did not attempt to further explain
the situation because there was no additional space provided
on the form. He did not attempt to provide any explanation to
suggest that skala’s compensation was solely in the form of
commission and was based on pending real estate closings. as
a general rule, a garnishee owes a duty to act in good faith and
answer fully and truthfully all proper interrogatories presented
to him. see Western Smelting & Refining Co. v. First Nat.
Bank, 150 Neb. 477, 35 N.W.2d 116 (1948). the garnishee is
expected to, in some appropriate manner, properly disclose all
relevant facts within his knowledge at the time of submitting
an answer concerning his indebtedness to the judgment debtor
or concerning money or property of the judgment debtor then
in his possession. Id.
the garnishment forms are uniform and are promulgated
by this court. § 25-1011(3). the employers’ instructions that
accompany garnishment forms specifically state: “the term
‘earnings’ means compensation for personal services owing,

whether due or not, to the judgment debtor at the time of service
of the summons and Interrogatories, whether denominated
as wages, salary, commissions, bonus, or otherwise . . . .”
(emphasis supplied.) thompson knew or should have known
that skala would be due commissions for real estate sales within
the next 60 days. the district court did not err in finding that
commissions were owed to skala at the time the interrogatories
were answered. there was competent evidence to support the
district court’s finding that skala had generated commissions
totaling $19,137 within 21 days of the date the interrogatories
were answered by thompson and that thompson’s answers
were not accurate because he owed skala commissions at the
time thompson answered the interrogatories.
realty Linc also appears to object to the district court’s deter-
mination that realty Linc was liable to bauer in the amount of
$19,137, rather than solely the amount of commissions earned
by skala. section 25-1028 provides that if the garnishee fails to
answer, it is presumed that the garnishee is indebted in the full
amount of the judgment creditor’s claim. this is a rebuttable
presumption. see Spaghetti Ltd. Partnership v. Wolfe, 264 Neb.
365, 647 N.W.2d 615 (2002). In this case, although realty Linc
answered the interrogatories, the court found that the answers
were not accurate. though this failure to accurately answer
the interrogatories may have potentially subjected realty Linc
to a judgment in the full amount of $33,868.25, realty Linc’s
appearance at the hearing to determine liability defeated this
claim. see id. thus, the most bauer could garnish is the amount
realty Linc owed skala, as shown by the pleadings and evi-
dence. see id. the only evidence as to the value of the closings
that took place within the 60-day period after the interrogato-
ries were issued came from avery, the broker of another real
estate firm. avery stated it was customary for agents to split the
commissions. However, realty Linc did not offer any evidence
concerning the division of commissions. avery testified that
skala was involved in eight closings between september 7 and
22, 2006, with total commissions of approximately $19,000.
the district court entered judgment against realty Linc for
peterseN v. CeNtraL park propertIes 	229
Cite as 275 Neb. 220

230 	275 Nebraska reports
$19,137 plus costs. the court’s findings have the effect of a
jury’s findings and will not be set aside on appeal unless clearly
wrong. see id.
CoNCLusIoN
there is no evidence that the judgment in this case was clearly
wrong. the judgment of the district court is affirmed.
A ffirmed .
S tAte of N ebrASkA ex rel . C ouNSel for diSCipliNe
of the N ebrASkA S upreme C ourt , relAtor , v .
S tepheN l. S mith , reSpoNdeNt .
745 N.W.2d 891
Filed March 7, 2008. 	No. s-07-397.
1. Disciplinary Proceedings. a proceeding to discipline an attorney is a trial de
novo on the record.
2. ____. Neb. Ct. r. of Discipline 4 (rev. 2004) provides that the following may be
considered by the Nebraska supreme Court as sanctions for attorney misconduct:
(1) disbarment; (2) suspension for a fixed period of time; (3) probation in lieu
of or subsequent to suspension, on such terms as the court may designate; (4)
censure and reprimand; or (5) temporary suspension.
3. ____. For purposes of determining the proper discipline of an attorney, the
Nebraska supreme Court considers the attorney’s acts both underlying the events
of the case and throughout the proceeding.
4. ____. to determine whether and to what extent discipline should be imposed in
a lawyer discipline proceeding, the Nebraska supreme Court considers the fol-
lowing factors: (1) the nature of the offense, (2) the need for deterring others, (3)
the maintenance of the reputation of the bar as a whole, (4) the protection of the
public, (5) the attitude of the offender generally, and (6) the offender’s present or
future fitness to continue in the practice of law.
5. ____. responding to disciplinary complaints in an untimely manner and repeat-
edly ignoring requests for information from the Counsel for Discipline indicate
disrespect for the Nebraska supreme Court’s disciplinary jurisdiction and a lack
of concern for the protection of the public, the profession, and the administration
of justice.
6. ____. an attorney’s failure to respond to inquiries and requests for information
from the office of the Counsel for Discipline is a grave matter and a threat to the
credibility of attorney disciplinary proceedings.
7. ____. the failure of a respondent to answer the formal charges subjects the
respondent to a judgment on the formal charges filed.