Sherman v. Sherman

that DeBoer met his burden to disprove the Department’s prima
facie case.
CONCLUSION
We conclude there is competent evidence to support the
district court’s findings that the testing records did not com-
ply with the approved methods and techniques as required
by 	§ 	002.01E 	and, 	therefore, 	that 	DeBoer 	disproved 	the
Department’s prima facie case. Accordingly, we affirm the
judgment of the district court.
A ffirmed .
robertA J. S hermAn , Appellee , v . blAine A. S hermAn
And frAnceS m. vASA, AppellAntS.
751 N.W.2d 168
Filed June 10, 2008. 	No. A-07-024.
1. Judgments: Appeal and Error. Where an action at law is tried without a jury, the
decision of the trial court has the effect of a jury verdict and will not be disturbed
on appeal unless it is clearly wrong.
2. ____: ____. It is not within the province of an appellate court to resolve eviden-
tiary conflicts or to weigh evidence. Rather, it is the appellate court’s obliga-
tion to review the judgment entered in light of the evidence and to consider the
evidence in the light most favorable to the successful party, resolving all conflicts
in his favor and granting him the benefit of every inference which is reasonably
deducible therefrom.
3. Trusts: Appeal and Error. Appeals of matters arising under the Nebraska
Probate Code, including trust administration proceedings and proceedings to
remove trustees, are reviewed for error on the record.
4. Judgments: Appeal and Error. When reviewing a judgment for errors appear-
ing on the record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
5. Trusts. A trustee shall administer the trust solely in the interests of the
beneficiaries.
6. ____. Pursuant to Neb. Rev. Stat. § 30-3862 (Cum. Supp. 2006), the court has the
authority to remove a trustee if (1) the trustee has committed a serious breach of
trust or (2) lack of cooperation among cotrustees substantially impairs the admin-
istration of the trust.
7. Actions: Parties: Standing. Before a party is entitled to invoke a court’s jurisdic-
tion, that party must have standing to sue.
766 	16 NEBRASkA APPELLAtE REPORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

8. Assignments: Words and Phrases. An assignment is a transfer vesting in
the assignee all the assignor’s rights in property which is the subject of the
assignment.
9. Assignments: Intent. the intention of the assignor must be to transfer a pres-
ent interest in the debt or fund or subject matter; if this is clearly expressed, the
transaction is an assignment; otherwise not.
10. Actions: Parties. Neb. Rev. Stat. § 25-301 (Reissue 1995) provides that every
action shall be prosecuted in the name of the real party in interest.
11. Actions: Parties: Standing. to determine whether a party is a real party in inter-
est, the focus of the inquiry is whether that party has standing to sue due to some
real interest in the cause of action, or a legal or equitable right, title, or interest in
the subject matter of the controversy.
Appeal from the District Court for Cherry County: mArk
d. koziSek, Judge. Affirmed in part, and in part reversed
and vacated.
Amy L. Patras and keith A. Harvat, of Waite, McWha &
Harvat, and Michael J. McQuillan, of McQuillan & McQuillan,
for appellants.
Michael V. Smith, of Smith & king, P.C., and William B.
Quigley, of Quigley, Dill & Quigley, for appellee.
S ieverS, moore, and cASSel, Judges.
S ieverS, Judge.
this lawsuit has at its core the operation of the Sherman
Ranch (Ranch) located in Cherry County, Nebraska, composed
of nearly 15,000 acres including owned and leased land. the
Ranch’s operation was complicated by the fact that an undi-
vided half of the Ranch’s owned land was placed in a trust after
the death of the Sherman family patriarch, Hugh Sherman, but
the three named trustees ran the Ranch as though the trust did
not exist. Moreover, in a number of instances where written
agreements were obviously desirable, if for no other reason
than to avoid this sort of interfamily litigation, there were
no such agreements. therefore, and perhaps predictably, this
litigation ensued.
FACtUAL AND PROCEDURAL BACkGROUND
Hugh and Roberta J. Sherman, husband and wife, were the
long-time owners and operators of the Ranch. Beginning in
SHERMAN v. SHERMAN 	767
Cite as 16 Neb. App. 766

1997, Hugh requested that Blaine A. Sherman, one of Hugh
and Roberta’s nine children, move onto the Ranch to help run
it. Blaine agreed to move to and work on the Ranch, and he did
so beginning May 1, 1998, bringing with him some 230 cow-
calf pairs, a number of cattle he was running for a third party,
six horses, haying and well-drilling machinery, and a substantial
amount of baled hay. He and his family moved into a residence
on one of the leased tracts. Although attempts to do so were
made, no written agreement was ever reached between Blaine
and Hugh or Roberta regarding the terms of his employment
and occupancy of the Ranch.
On May 22, 1998, at a time when he was terminally ill,
Hugh executed his last will and testament, which established a
testamentary credit shelter trust (hereinafter trust). the trust
was funded with Hugh’s undivided one-half interest in approxi-
mately 9,000 acres of the Ranch’s owned real estate and 160
cows. Roberta, Blaine, and Frances Vasa (Frances), one of
Hugh and Roberta’s daughters, were named copersonal repre-
sentatives of the estate and cotrustees of the trust. the trust
provided that Roberta was to receive all income from the trust
during her lifetime, and as much of the principal of the trust as
the trustees deemed advisable to provide for Roberta’s health,
education, support, and maintenance. At Roberta’s death, the
trust was to terminate and the assets were to be distributed to
Hugh and Roberta’s children.
Hugh died a week after making the above-described will.
Blaine continued working and residing at the Ranch, including
running his cattle on the Ranch’s pastures. On May 1, 2003,
Roberta sent an eviction notice to Blaine and his wife, Helen
Sherman. the notice informed Blaine that he was to vacate the
Ranch by May 15, as well as remove his livestock.
It was at this time that Roberta brought her son Galen
Sherman onto the Ranch to help run it, but both Blaine
and Frances had reservations about Galen running the Ranch.
Shortly after Blaine was given notice to leave the Ranch, Blaine
and Frances determined that Blaine needed to remain involved
with the Ranch. therefore, acting as trustees, Blaine and
Frances executed a lease of the trust’s real property (Lease) to
Blaine and Helen for $8 per acre. Roberta was not consulted
768 	16 NEBRASkA APPELLAtE REPORtS

regarding the Lease or any of its terms, but a copy of the pro-
posed lease was sent to her before it was executed on May 27,
2003. On November 16, 2004, Roberta made a written offer
to lease the same land for $16 per acre, but her offer was not
accepted by Blaine and Frances.
Blaine and Helen had secured their operating loan from the
Purdum State Bank of Purdum, Nebraska, for a number of years.
Apparently because of the bank’s concerns about the financial
stability of Blaine and the Ranch, the bank sought additional
security. thus, on June 24, 2003, Blaine and Helen executed a
“Collateral Assignment of Accounts Receivable” (Assignment)
to the Purdum State Bank that in pertinent part read as follows:
“Blaine Sherman and Helen Sherman . . . hereby assign, trans-
fer and set over to the Bank, all of their right, title and interest
in respect to any and all sums of money now due or to become
due from Roberta Sherman, whatsoever.”
Shortly after Blaine and Frances leased the trust’s ground to
Blaine, Roberta brought suit on July 1, 2003, in the district court
for Cherry County, requesting that the Lease be voided, Blaine
and Frances be removed as trustees, and Blaine be ejected from
the Ranch. Blaine counterclaimed, seeking Roberta’s removal
as trustee, a monetary judgment against Roberta on a promis-
sory note in the amount of $119,300 payable to the trust, and
judgment based on quantum meruit for an amount in excess of
$350,000 for Blaine’s work on and management of the Ranch.
After a lengthy bench trial, Blaine, Frances, and Roberta were
removed as trustees and the Lease was voided. Roberta was
ordered to pay the trust $119,300 plus interest. Judgment was
entered for Roberta on the remainder of Blaine’s counterclaims.
Blaine and Frances timely appealed.
ASSIGNMENtS OF ERROR
Blaine and Frances assign, restated, that the district court
erred in removing them as trustees; in voiding the Lease; in
determining that no contract existed between Roberta and
Blaine to make a will; in determining that Blaine lacked stand-
ing to bring his counterclaim against Roberta because of the
assignment to the Purdum State Bank; in entering judgment
for Roberta against Blaine and Frances on their counterclaims
SHERMAN v. SHERMAN 	769
Cite as 16 Neb. App. 766

for compensation and reimbursement of expenses, when the
court had found that Blaine lacked standing to assert such
counterclaims against Roberta because of the Assignment to
the Purdum State Bank; in determining that the Assignment was
ambiguous; and in overruling the motion for new trial. Blaine
and Frances also claim that the trial court’s judgment and post-
trial “Order on Motions” were not supported by sufficient evi-
dence. We do not address this last assignment, because it is not
argued in Blaine and Frances’ brief. Errors that are assigned but
not argued will not be addressed by an appellate court. State v.
Baue, 258 Neb. 968, 607 N.W.2d 191 (2000).
StANDARD OF REVIEW
[1,2] Where an action at law is tried without a jury, the
decision of the trial court has the effect of a jury verdict and
will not be disturbed on appeal unless it is clearly wrong. See
South Sioux City Star v. Edwards, 218 Neb. 487, 357 N.W.2d
178 (1984). It is not within the province of this court to resolve
evidentiary conflicts or to weigh evidence. Rather, it is our
obligation to review the judgment entered in light of the evi-
dence and to consider the evidence in the light most favorable
to the successful party, resolving all conflicts in his favor and
granting him the benefit of every inference which is reasonably
deducible therefrom. See Grubbs v. Kula, 212 Neb. 735, 325
N.W.2d 835 (1982).
[3,4] Appeals of matters arising under the Nebraska Probate
Code, including trust administration proceedings and proceed-
ings to remove trustees, are reviewed for error on the record.
See In re Loyal W. Sheen Family Trust, 263 Neb. 477, 640
N.W.2d 653 (2002). When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id.
ANALYSIS
Is Lease Between Blaine and Helen and Trust Void?
[5] there is competent evidence that Blaine and Frances
violated their duties as trustees by entering into the Lease, and
the voiding of the Lease is an appropriate remedy for such
770 	16 NEBRASkA APPELLAtE REPORtS

violation. Neb. Rev. Stat. § 30-3867 (Supp. 2007) describes a
trustee’s duty of loyalty:
(UtC 802) (a) A trustee shall administer the trust solely
in the interests of the beneficiaries.
(b) Subject to the rights of persons dealing with or
assisting the trustee as provided in section 30-38,101,
a sale, encumbrance, or other transaction involving the
investment or management of trust property entered into
by the trustee for the trustee’s own personal account or
which is otherwise affected by a conflict between the
trustee’s fiduciary and personal interests is voidable by a
beneficiary affected by the transaction unless:
(1) the transaction was authorized by the terms of
the trust;
(2) the transaction was approved by the court;
(3) the beneficiary did not commence a judicial pro-
ceeding within the time allowed by section 30-3894;
(4) the beneficiary consented to the trustee’s conduct,
ratified the transaction, or released the trustee in compli-
ance with section 30-3898; or
(5) the transaction involves a contract entered into or
claim acquired by the trustee before the person became or
contemplated becoming trustee.
(c) A sale, encumbrance, or other transaction involving
the investment or management of trust property is pre-
sumed to be affected by a conflict between personal and
fiduciary interests if it is entered into by the trustee with:
(1) the trustee’s spouse;
(2) 	the 	trustee’s 	descendants, 	siblings, 	parents, 	or
their spouses.
Here, Blaine was a trustee, and therefore his lease of the
land runs afoul of the general prohibitions against self-dealing
by a trustee. Additionally, his wife, Helen, was a lessee on the
Lease, creating a presumption of a conflict of interest. Further,
the district court found that although Blaine paid $8 per acre to
lease the trust’s portion of the Ranch, Roberta offered $16 per
acre. Leasing the ground for the lower price is facially incon-
sistent with Blaine’s and Frances’ duty to act for the benefit of
Roberta, the life beneficiary, and for the remaindermen—their
SHERMAN v. SHERMAN 	771
Cite as 16 Neb. App. 766

seven siblings. the district court found that Blaine and Frances
failed to take account of Roberta’s interests by not leasing the
Ranch to her and, we would add, failed to take into account
the remaindermen’s interests. the evidence also suggests that
Blaine and Frances were more concerned about their own inter-
ests in the Ranch, which they were ultimately to inherit along
with their siblings, and they set their interests in the Ranch and
the trust property above their duty to Roberta—the life income
beneficiary. the evidence supports the conclusion that Blaine
and Frances failed in their duty of loyalty to the beneficiary of
the trust, Roberta, when they entered into the Lease. the dis-
trict court found that the Lease created a conflict of interest for
Blaine and Frances, and this finding is not erroneous, because
it is supported by competent evidence. Section 30-3867 makes
such a transaction voidable by the beneficiary, in this case,
Roberta. therefore, it was an appropriate remedy that the Lease
be voided.
Removal of Blaine and Frances as Trustees.
[6] Pursuant to Neb. Rev. Stat. § 30-3862 (Cum. Supp.
2006), the court has the authority to remove a trustee if (1) the
trustee has committed a serious breach of trust or (2) lack of
cooperation among cotrustees substantially impairs the admin-
istration of the trust. the district court found that both Blaine
and Frances committed serious breaches of trust. this finding
was not error, because it was based on the competent evidence,
described above, that not only did Blaine and Frances act
without taking Roberta’s best interests into account, they also
engaged in self-dealing, because the evidence suggests that their
motivation for entering into the Lease and refusing to lease the
trust land to Roberta was their concern that Galen could not
properly run the Ranch. the evidence did not show this to be
a valid concern; in fact, the evidence suggests improvements
under Galen’s stewardship—for example, in the condition of
the pastures and the decreased number of open cows.
Moreover, while the trial court did not specifically make find-
ings concerning such, the fact that Blaine and Frances, as well
as Roberta, operated as though there was no trust is also a seri-
ous breach of their duties. the seriousness of this shortcoming is
772 	16 NEBRASkA APPELLAtE REPORtS

perhaps best understood by pointing out the inherent complexi-
ties of the Ranch after Hugh’s death. After Hugh’s death, the
Ranch was composed of approximately 6,000 acres of leased
ground plus 9,000 acres of owned land, of which an undivided
half was owned by Roberta and the other undivided half was
owned by Hugh’s three trustees. While we need not discuss all
of the ramifications of this arrangement, suffice it to say that the
ownership arrangements of the land, coupled with the fact that
Blaine was running his own cattle on the Ranch’s land, made for
a complex situation that required sophisticated recordkeeping
for a variety of purposes. However, all three trustees were appar-
ently largely oblivious to the ramifications of the complicated
ownership of the land, as well as their fiduciary duties as trust-
ees. the record shows that for years, the trustees made no efforts
to separate trust property and trust income from the portion of
the Ranch owned individually by Roberta, and the income that
such generated. there was a variety of serious breaches of the
trustees’ duties, and removal was an appropriate remedy.
Did Contract Exist Between Roberta and Blaine
for Her to Make Will?
Blaine asserts that Roberta contracted to make a will leaving
that portion of the Ranch she owned to him in exchange for his
coming back to the Ranch and operating it after Hugh’s death.
there is no contract between Roberta and Blaine for Roberta
to make a will with such provision, because there is no writing
that satisfies Nebraska law governing such a contract. Neb. Rev.
Stat. § 30-2351 (Reissue 1995) provides:
A contract to make a will or devise, or not to revoke a
will or devise, or to die intestate, if executed after January
1, 1977, can be established only by (1) provisions of a will
stating material provisions of the contract; (2) an express
reference in a will to a contract and extrinsic evidence
proving the terms of the contract; or (3) a writing signed
by the decedent evidencing the contract. the execution of
a joint will or mutual wills does not create a presumption
of a contract not to revoke the will or wills.
At trial, no required writing falling within any of the three
possible categories for a valid agreement to make a will as
SHERMAN v. SHERMAN 	773
Cite as 16 Neb. App. 766

required by § 30-2351 was introduced into evidence. the dis-
trict court found there was no contract to make a will, and such
conclusion is quite clearly correct.
Did Blaine Have Standing to Sue Roberta?
[7] In the pleadings, Roberta asserts that Blaine did not have
standing to bring his counterclaim against Roberta for quantum
meruit compensation for working and managing the Ranch and
for expenses advanced. Before a party is entitled to invoke a
court’s jurisdiction, that party must have standing to sue. See
Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554
N.W.2d 151 (1996). the trial court’s judgment discusses in
detail whether Blaine had standing to assert such claim against
Roberta, given the assignment to the Purdum State Bank. this
judgment as well as the trial court’s ruling on posttrial motions
suggest rather clearly that the court intended to rule that Blaine
lacked standing. However, its decision on Blaine’s claim found
in the judgment necessarily carries with it the implicit conclu-
sion that Blaine had standing to sue Roberta.
the order portion of the judgment reads: “6. Judgment
is entered for [Roberta] and against the defendant, Blaine
Sherman, on his counterclaim.” Clearly, the quoted portion of
the judgment is a finding on the merits. In order to make such
a finding, the party bringing the claim, in this case, Blaine,
necessarily would have had to have standing. In summary, the
order portion of the judgment quoted above is inconsistent with
the trial court’s discussion of the issue in both the judgment and
the “Order on Motions.” therefore, we turn to the merits of the
standing issue.
In the Assignment, Blaine and Helen, as an inducement to
the Purdum State Bank’s forbearance of collection on promis-
sory notes signed by them, agreed to the following: “Blaine
Sherman and Helen Sherman . . . hereby assign, transfer and set
over to the Bank, all of their right, title and interest in respect
to any and all sums of money now due or to become due from
Roberta Sherman, whatsoever.”
[8,9] An assignment is a transfer vesting in the assignee all
the assignor’s rights in property which is the subject of the
assignment. See Craig v. Farmers Mut. Ins. Co., 239 Neb. 271,
774 	16 NEBRASkA APPELLAtE REPORtS

476 N.W.2d 529 (1991). Blaine’s Assignment clearly vested
in the assignee, Purdum State Bank, all of Blaine’s rights in
any money Roberta owed or could owe Blaine. the Nebraska
Supreme Court said in Tilden v. Beckmann, 203 Neb. 293, 300,
278 N.W.2d 581, 586 (1979), that “the intention of the assignor
must be to transfer a present interest in the debt or fund or
subject matter; if this is clearly expressed, the transaction is an
assignment; otherwise not.” Blaine argues that he did not assign
a present interest to Purdum State Bank, but only a future inter-
est, and that he was assigning only money “potentially” received
from Roberta, not the right to sue on the cause of action to col-
lect money from her. Brief for appellants at 27, citing Craig v.
Farmers Mut. Ins. Co., supra. In Craig, Robert Craig sold his
ranch, but the buildings had been damaged before the sale, and
Craig, as part of the sale agreement, agreed to “assign to Buyer
. . . all right, title and interest of [Craig] to any insurance pro-
ceeds for damage . . . prior to the date of [the sale].” 239 Neb.
at 273, 476 N.W.2d at 531. When Craig sued his insurer, the
insurer argued that Craig lacked standing due to the contract
provision discussed above. the Supreme Court found that the
provision at issue made closing of the sale possible and that it
was not an assignment of policy rights, but, rather, an agree-
ment to assign the proceeds of the policy. therefore, Craig was
found to have standing to sue on the policy. the use of the term
“proceeds” in the language of the Craig assignment was clearly
a limitation on what was assigned, and such a limitation is miss-
ing here. And, in Craig, there was something “left behind” after
the assignment, because Craig would retain the right for fees and
costs under Neb. Rev. Stat. § 44-359 (Reissue 2003), as well as
some measure of control, because the proceeds went to the buyer
only if used for purposes of repair or improvement of the prop-
erty. In contrast, Blaine and Helen have not limited the scope of
the assignment, nor have they retained anything.
the Craig court quoted from Tilden v. Beckmann, 203 Neb.
at 300, 278 N.W.2d at 586, which stated, “It is also the rule
that the intention of the assignor must be to transfer a present
interest in the debt or fund or subject matter; if this is clearly
expressed, the transaction is an assignment; otherwise not.”
However, the language of the Assignment in this case is clear
SHERMAN v. SHERMAN 	775
Cite as 16 Neb. App. 766

that it applies to both Blaine’s present and future interests (“to
any and all sums of money now due or to become due from
Roberta”) (emphasis supplied). We conclude that Craig is dis-
tinguishable from the present case and that Blaine has assigned
away his claims, present and future, against Roberta.
[10,11] Neb. Rev. Stat. § 25-301 (Cum. Supp. 2006) pro-
vides, “Every action shall be prosecuted in the name of the real
party in interest . . . .” to determine whether a party is a real
party in interest, the focus of the inquiry is whether that party
has standing to sue due to some real interest in the cause of
action, or a legal or equitable right, title, or interest in the sub-
ject matter of the controversy. Stevens v. Downing, Alexander,
269 Neb. 347, 693 N.W.2d 532 (2005). By executing the
Assignment, Blaine (and Helen) ceased to have any interest in
the counterclaims he brought against Roberta. therefore, he did
not have standing to sue.
that decided, as we noted earlier, the trial court actually
decided the counterclaim in Roberta’s favor, which was error
because of the lack of standing. Blaine’s counterclaim should
have simply been dismissed due to the court’s lack of jurisdic-
tion. See Spring Valley IV Joint Venture v. Nebraska State Bank,
269 Neb. 82, 690 N.W.2d 778 (2005) (in order to invoke court’s
jurisdiction, one must have standing). therefore, we modify the
trial court’s judgment such that Blaine’s counterclaim against
Roberta is dismissed, and the finding in Roberta’s favor on such
is reversed and vacated.
CONCLUSION
For the reasons stated above, we affirm the district court’s
order in part and reverse and vacate in part.
A ffirmed in pArt , And in pArt
reverSed And vAcAted .
776 	16 NEBRASkA APPELLAtE REPORtS