In re Estate of Cooper

322 	275 NebRASkA RePORTS
in Re estate of R ichaRd n. coopeR, deceased .
J oe m. R ichaRdson , foRmeR successoR peRsonal
R epResentative of the estate of R ichaRd n. coopeR,
deceased , appellant , v . J ames mitchell , successoR
peRsonal R epResentative of the estate of
R ichaRd n. coopeR, et al ., appellees .
in Re estate of R ichaRd n. coopeR, deceased .
J oe m. R ichaRdson , foRmeR successoR peRsonal
R epResentative of the estate of R ichaRd n. coopeR,
deceased , et al ., appellees , v . R oByn coopeR,
foRmeR peRsonal R epResentative of the estate
of R ichaRd n. coopeR, deceased , appellant .
746 N.W.2d 663
Filed March 28, 2008. 	Nos. S-06-1400, S-07-109.
1. Decedents’ Estates: Appeal and Error. In the absence of an equity question, an
appellate court, reviewing probate matters, examines for error appearing on the
record made in the county court.
2. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
3. Decedents’ Estates: Executors and Administrators: Notice. Neb. Rev. Stat.
§ 30-2457 (Reissue 1995) permits a special administrator to be appointed
after notice when a personal representative cannot or should not act and also
permits the appointment of a special administrator without notice when an
emergency exists.
4. Decedents’ 	Estates: 	Executors 	and 	Administrators. 	Taken 	together,
Neb. Rev. Stat. §§ 30-2454 and 30-2457 (Reissue 1995) set forth a proce-
dure by which to suspend and remove a personal representative and appoint a
special administrator.
5. Decedents’ Estates: Executors and Administrators: Notice. Under Neb. Rev.
Stat. § 30-2454 (Reissue 1995), once the personal representative receives notice
of a petition seeking his or her removal, he or she “shall not act,” except in lim-
ited circumstances. Thus, notice to the personal representative under § 30-2454
effectively suspends the personal representative.
6. ____: ____: ____. Once a personal representative is prohibited from acting under
Neb. Rev. Stat. § 30-2454 (Reissue 1995), an interested party may thereafter
move under Neb. Rev. Stat. § 30-2457 (Reissue 1995) for the appointment of
a special administrator, based on the facts that the personal representative has
received notice under § 30-2454 and cannot act and that the appointment of a
special administrator would be appropriate to preserve the estate or to secure its
proper administration.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

7. Decedents’ Estates: Executors and Administrators: Evidence. In the absence
of evidence, no emergency basis under Neb. Rev. Stat. § 30-2457 (Reissue 1995)
can be established upon which a county court could base its suspension of a per-
sonal representative and the appointment of a temporary special administrator.
8. Judges: Recusal: Proof. A trial judge should be recused when a litigant demon-
strates that a reasonable person who knew the circumstances of the case would
question the judge’s impartiality under an objective standard of reasonableness,
even though no actual bias or prejudice is shown.
Appeals from the County Court for Douglas County: lyn v.
W hite, Judge. Judgment in No. S-06-1400 reversed in part and
in part vacated, and cause remanded for further proceedings.
Judgment in No. S-07-109 vacated, and cause remanded for
further proceedings.
kristopher J. Covi, Lisa M. Lehan, and J. Terry Macnamara,
of McGrath, North, Mullin & kratz, P.C., L.L.O., for appellant
in No. S-06-1400.
Michael D. kozlik, of Harris kuhn Law Firm, L.L.P., for
appellee W.G. Yates & Sons Construction Company.
L. Steven Grasz and Michael C. Schilken, of blackwell
Sanders, L.L.P., for appellee Robyn Cooper in No. S-06-1400.
L. Steven Grasz, Michael C. Schilken, Trenten P. bausch,
Rebecca b. Gregory, and Lindsay k. edwards, of blackwell,
Sanders, Peper & Martin, L.L.P., for appellant in No. S-07-109.
T. Randall Wright and brandon R. Tomjack, of baird Holm,
L.L.P., for appellee Marshall Investment Corporation.
Frederick D. Stehlik and Michael J. Whaley, of Gross &
Welch, P.C., for appellees DeSoto County Medical Office and
Stevan Himmelstein.
David J. koukol and Christopher D. Curzon, of Dwyer, Smith,
Gardner, Lazer, Pohren, Rogers & Forrest, L.L.P., for appellee
W. Gerald ezell estate.
heavican, 	C.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
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324 	275 NebRASkA RePORTS
milleR-leRman, J.
NATURe OF CASe
These appeals were brought from separate orders entered
in the county court for Douglas County from one underlying
estate case involving the estate of Richard N. Cooper. In case
No. S-06-1400, sometimes referred to as the “appointment
case,” appellant Joe M. Richardson appeals from the county
court’s orders in which it overruled his motion challenging
the county court’s suspension of Richardson as the succes-
sor personal representative and appointment of a temporary
special administrator, appointed a second successor personal
representative, and denied his motion for sanctions. In case No.
S-07-109, sometimes referred to as the “asset case,” the issue
on appeal is whether the county court erred in determining that
a certain brokerage account was an estate asset and therefore
subject to the claims of estate creditors. We consolidate these
appeals for purposes of opinion and disposition.
In the appointment case, Richardson questions the propriety
of the statutory procedure used to remove him under the facts
of this case and challenges the ex parte nature of one of the
hearings held during the appointment proceedings. In the asset
case, it is claimed that the county court’s procedure and deci-
sion in the appointment case caused the court to improperly
prejudge the issue of whether to include the brokerage account
as an asset in the estate.
In case No. S-06-1400, we conclude that in the absence of
evidence the procedure used to suspend Richardson’s author-
ity as the successor personal representative, and to appoint a
temporary special administrator was not warranted. Therefore,
orders 	flowing 	therefrom 	require 	reversal 	and 	remand 	of
the cause. Accordingly, we vacate the county court’s orders
removing Richardson as the successor personal representative,
appointing a special administrator, appointing a second succes-
sor personal representative, and denying Richardson’s motion
for sanctions. because the record in the appointment case
reflects that the county court made certain factual findings in
the absence of evidence concerning those facts, the impartiality
of the judge going forward could reasonably be questioned, and
we therefore order that the county court judge be recused upon

remand. In view of our disposition of the appointment case, we
are required to reverse the county court’s order including the
brokerage account as an estate asset in case No. S-07-109, and
we remand the cause for further proceedings consistent with
this opinion.
FACTS
There is essentially no dispute with regard to the facts rel-
evant to our disposition of these appeals. Decedent Richard N.
Cooper died testate on November 3, 2005. He was survived
by his wife, Robyn, and several children. Cooper’s last will
and testament was admitted to probate in the county court on
November 17. Robyn initially served as personal representa-
tive. She later resigned, and her brother, Richardson, suc-
ceeded her as successor personal representative.
On July 13, 2006, Richardson filed a motion seeking a
determination as to the estate’s ownership interest in a bro-
kerage account held with PrimeVest Financial Services and
identified therein as account No. 22373935 (the PrimeVest
account). This account is the subject of the asset case. On
September 12, Richardson’s deposition was taken as part of the
estate proceedings.
On September 15, 2006, W.G. Yates & Sons Construction
Company (Yates), identifying itself effectively as a claim-
ant of the estate, filed a pleading captioned “Petition for
Appointment of Special Administrator in Formal Proceeding in
an emergency,” alleging that Richardson was failing to protect
and preserve the estate and seeking the appointment of a spe-
cial administrator. Richardson’s appeal in the appointment case
challenges the propriety of filing this petition and the proceed-
ings held thereon. The petition did not indicate the statutory
authority on which it was based, and the copy of the petition
contained in the record does not include a certificate of service
demonstrating that Yates served a copy of its petition on any
interested parties in the estate case.
On September 19, 2006, 4 days after Yates filed its petition,
the county court held a hearing on the petition. The bill of
exceptions on appeal contains a transcript from that hearing.
The only appearance entered at that hearing is counsel for Yates.
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326 	275 NebRASkA RePORTS
No evidence was offered or received at the hearing. During the
hearing, counsel for Yates appears to summarize portions of
Richardson’s deposition testimony, and elsewhere it appears
that counsel for Yates is reading to the court questions asked
and answers given during Richardson’s deposition. The record
further reflects that much of the information provided by Yates’
counsel was in response to questioning from the court.
At the conclusion of this hearing, the county court entered
its order. In its September 19, 2006, order, the county court
made certain factual findings, including finding that “someone”
had been removing assets from the estate, that Richardson had
“failed and/or refused to protect or preserve” the estate’s assets,
and that it was “necessary for a Special Administrator to take
custody and control of the estate assets for their preservation
and protection as [Richardson had] failed to do so.” As a result
of these and other factual findings, the county court ordered
that Richardson be suspended as the successor personal rep-
resentative. The court further ordered that a temporary special
administrator be appointed “to collect and manage the assets
of the estate” and that a hearing be held on the permanent
removal of Richardson as successor personal representative.
Yates’ counsel was ordered to provide notice to Richardson of a
subsequent hearing regarding his removal as successor personal
representative. Yates was awarded attorney fees.
On September 21, 2006, Yates filed an amended petition
in which it sought the permanent removal of Richardson as
successor personal representative and the appointment of a
second successor personal representative. On September 22,
Richardson filed a motion to reconsider the court’s September
19 order. On October 10, Richardson also filed a motion seek-
ing sanctions against Yates’ attorney because of the ex parte
nature of the September 19 hearing. The hearing on all of these
motions was continued until October 31.
While the removal proceedings giving rise to the appointment
case were pending, on September 22, 2006, the county court
held an evidentiary hearing in the asset case on Richardson’s
motion to determine the estate’s ownership interest in the
PrimeVest account. The record reflects that the temporary special

administrator participated in this hearing. The record also indi-
cates that during the September 19 hearing, it was alleged and
the county court found that the PrimeVest account was at least
one of the assets Richardson was failing to protect.
On October 31, 2006, the county court held an evidentiary
hearing in the appointment case on the various motions relating
to Richardson’s removal as successor personal representative
and the appointment of a second successor personal representa-
tive. In an order filed November 27, the county court granted
Yates the relief sought in its amended petition by permanently
removing Richardson as the successor personal representative
and by appointing a second successor personal representative.
In the same order, the county court overruled Richardson’s
motion to reconsider and motion for sanctions. The November
27 order does not contain any factual findings by the court.
In an order filed January 16, 2007, the county court ruled in
the asset case that the PrimeVest account was an estate asset
and that the funds held in that account were subject to the
claims of estate creditors. The county court ordered that any
transfers from that account were void and further ordered the
second successor personal representative to “trace the assets”
that had been transferred from the account.
In case No. S-06-1400, Richardson appeals the county court’s
orders that overruled his motion to reconsider, removed him as
successor personal representative, appointed a second succes-
sor personal representative, and denied his motion for sanc-
tions. In case No. S-07-109, the appeal challenges the county
court’s order determining that the PrimeVest account is an
estate asset.
ASSIGNMeNTS OF eRROR
In case No. S-06-1400, Richardson assigns three errors.
Richardson claims that the county court erred (1) in denying his
motion to reconsider its order appointing a temporary special
administrator following an ex parte hearing, (2) in removing
Richardson as the successor representative and appointing a
“second successor personal representative,” and (3) in denying
Richardson’s motion for sanctions.
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328 	275 NebRASkA RePORTS
In case No. S-07-109, the error assigned generally claims
that the county court erred in determining that the PrimeVest
account was an estate asset.
STANDARDS OF ReVIeW
[1,2] In the absence of an equity question, an appellate court,
reviewing probate matters, examines for error appearing on
the record made in the county court. In re Trust Created by
Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007). On a question
of law, however, an appellate court is obligated to reach a con-
clusion independent of the determination reached by the court
below. In re Estate of Lamplaugh, 270 Neb. 941, 708 N.W.2d
645 (2006).
ANALYSIS
Case No. S-06-1400: The County Court’s Order Overruling
Richardson’s Motion for Reconsideration Is Reversed.
In the appointment case, Richardson claims that the county
court erred in overruling his motion to reconsider its previous
order suspending his authority as the successor personal rep-
resentative and appointing a temporary special administrator.
Richardson also claims that the county court erred in removing
him as the successor personal representative and appointing a
second successor personal representative to replace Richardson.
Finally, Richardson challenges the county court’s order denying
his motion for sanctions.
Richardson claims that the emergency procedure utilized by
the county court regarding the appointment of the temporary
special administrator was not warranted under the probate code
and that the county court subsequently erred in suspending
him based in part on an ex parte hearing at which no evidence
was received but the court nevertheless made factual findings.
Richardson also argues that the proceedings during the emer-
gency hearing caused the county court to unfairly prejudge the
issues raised during the October 31, 2006, hearing regarding
Richardson’s permanent removal.
As set forth above, Yates’ petition seeking the appointment
of a temporary special administrator was apparently not served
on either Richardson or any other interested parties in the estate

case. The petition did not cite the statutory authority under
which the appointment of a special administrator was sought.
However, in its brief on appeal, Yates asserts that its statutory
authority for seeking the appointment of a temporary special
administrator was Neb. Rev. Stat. § 30-2457 (Reissue 1995).
In this regard, Yates asserts that it learned of Richardson’s
alleged neglect at the deposition of September 12, 2006, and
Yates argues to the effect that an emergency hearing without
notice pursuant to § 30-2457 was the most opportune statutory
remedy by which to promptly suspend Richardson’s acts as a
personal representative. Contrary to Yates’ view of the probate
code, we note that the code provides a procedure by which
a personal representative can be promptly suspended and a
special administrator appointed without resorting to a hearing
without notice.
The issue as framed by the parties on appeal is, in part, one
of statutory construction. Several sections of the probate code
are relevant to our analysis. With regard to the removal of a
personal representative, Neb. Rev. Stat. § 30-2454(a) (Reissue
1995) provides, inter alia, as follows:
A person interested in the estate may petition for removal
of a personal representative for cause at any time. Upon fil-
ing of the petition, the court shall fix a time and place for
hearing. Notice shall be given by the petitioner to the per-
sonal representative, and to other persons as the court may
order. except as otherwise ordered as provided in section
30-2450, after receipt of notice of removal proceedings,
the personal representative shall not act except to account,
to correct maladministration or preserve the estate.
[3] With regard to a special administrator, § 30-2457 permits
a special administrator to be appointed after notice when a per-
sonal representative cannot or should not act and also permits
the appointment of a special administrator without notice when
an emergency exists. Section 30-2457 provides:
A special administrator may be appointed:
. . . .
(2) in a formal proceeding by order of the court on the
petition of any interested person and finding, after notice
and hearing, that appointment is necessary to preserve the
IN Re eSTATe OF COOPeR 	329
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330 	275 NebRASkA RePORTS
estate or to secure its proper administration including its
administration in circumstances where a general personal
representative cannot or should not act. If it appears to
the court that an emergency exists, appointment may be
ordered without notice.
Finally, Neb. Rev. Stat. § 30-2450 (Reissue 1995) provides gen-
erally for 10 days’ notice prior to a removal hearing.
[4-6] Taken together, these statutes set forth a procedure
by which to suspend and remove a personal representative
and appoint a special administrator. Pursuant to § 30-2454, an
interested person may petition the county court for the removal
of the personal representative. The statute provides for notice
of the petition to be given to the personal representative and
others. It is important to note that under § 30-2454, once the
personal representative receives such notice, he or she “shall
not act,” except in limited circumstances. Thus, notice to the
personal representative under § 30-2454 effectively suspends
the personal representative. Once a personal representative is
prohibited from acting under § 30-2454, an interested party
may thereafter move under § 30-2457 for the appointment of a
special administrator, based on the facts that the personal repre-
sentative has received notice under § 30-2454 and “cannot . . .
act” and that the appointment of a special administrator would
be appropriate “to preserve the estate or to secure its proper
administration.” § 30-2457.
The above-described procedure wherein a personal represen-
tative “cannot act,” thus requiring a special administrator, was
not followed in this case. Instead, Yates chose to commence its
proceedings under the last portion of § 30-2457(2), alleging that
an emergency existed requiring the appointment of a special
administrator, and it persuaded the county court to appoint a
special administrator based on argument without evidence and
without notice to the personal representative. Given our review
of the applicable statutes and record, we conclude that under the
procedure utilized in the appointment case, the appointment of
a special administrator was not warranted and we reverse the
county court’s order overruling Richardson’s motion for recon-
sideration and remand the cause as indicated below.

[7] We have often noted that a dialog between the court
and counsel is not an evidentiary basis for a ruling. In re
Guardianship & Conservatorship of Trobough, 267 Neb. 661,
676 N.W.2d 364 (2004), exemplifies the difficulties that may
arise when a trial court does not conduct an evidentiary hear-
ing. In In re Guardianship & Conservatorship of Trobough, a
conservatorship proceeding, the county court did not hold an
evidentiary hearing and no exhibits were offered into evidence.
Instead, the trial court “engaged in discussions with the par-
ties without receiving any evidence to support or refute the
issues raised in the pleadings.” Id. at 665, 676 N.W.2d at 368.
We determined that without an evidentiary hearing, the county
court had no basis upon which to enter its order and that such
order was not supported by competent evidence. Similarly, in
the present case, in the absence of evidence, no emergency basis
under § 30-2457 was established upon which the county court
could base its suspension of Richardson and its appointment of
a temporary special administrator. We therefore conclude that
the county court erred when it overruled Richardson’s motion to
reconsider its September 19, 2006, order suspending Richardson
and appointing a temporary special administrator.
On appeal, Richardson also argues that the nature and resul-
tant findings from the ex parte hearing caused the court to
prejudge the issues raised at the October 31, 2006, hearing that
resulted in the subsequent order in which the court ultimately
removed Richardson as the successor personal representative
and appointed a second successor personal representative. As
we suggested above, we agree with Richardson that the county
court’s handling of Yates’ petition was problematic.
In addition to the fact that factual findings were made with-
out evidence being taken, we note that the bill of exceptions
from the September 19, 2006, hearing indicates that much of
the dialog developing the case was initiated by the trial judge.
Although we recognize that § 30-2457 permits a hearing without
notice, it is nevertheless not advisable for the court to develop
the record, as this bears unfavorably on the judge’s impartiality.
See Neb. Code of Jud. Cond., Canon 3 (rev. 2000) (providing
that judge shall perform his or her duties impartially).
IN Re eSTATe OF COOPeR 	331
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332 	275 NebRASkA RePORTS
[8] It is apparent that the decision to suspend Richardson
and appoint a temporary special administrator was based on
communications occurring at a nonevidentiary hearing, when
there was a “discussion” rather than a formal hearing to enable
the trial court to decide the matter then pending before it on
the basis of evidence. Looking at the record and the manner
in which the September 19, 2006, hearing was conducted, the
impartiality of the trial judge could be questioned and the rul-
ings could appear to have prejudicially affected the interested
parties’ substantial rights. We have previously stated to the
effect that a trial judge should be recused when a litigant dem-
onstrates that a reasonable person who knew the circumstances
of the case would question the judge’s impartiality under an
objective standard of reasonableness, even though no actual
bias or prejudice is shown. See Mooney v. Gordon Memorial
Hosp. Dist., 268 Neb. 273, 682 N.W.2d 253 (2004). Under the
circumstances, we determine that it is necessary upon remand
for the county court judge to recuse herself from further pro-
ceedings in the estate case. Given our analysis, we further
conclude it is appropriate to vacate that portion of the county
court’s order permanently removing Richardson as successor
personal representative and appointing a second successor per-
sonal representative. Finally, we vacate the county court’s order
denying Richardson’s motion for sanctions and remand such
motion for consideration by a different judge.
by virtue of the proceedings, Richardson has received notice
of Yates’ petition to remove him as successor personal rep-
resentative. Therefore, in accordance with the provisions of
§ 30-2454, we conclude that following remand, Richardson
“shall not act except to account, to correct maladministration or
preserve the estate.” Pursuant to § 30-2457, Yates may seek to
have a hearing before the new county court judge assigned to
the estate case regarding the appointment of a special adminis-
trator to preserve the estate.
In summary, we determine that the county court erred in sus-
pending Richardson and appointing a temporary special admin-
istrator. Accordingly, we reverse the county court’s order deny-
ing Richardson’s motion for reconsideration. We determine that
the county court’s orders permanently removing Richardson

as the successor personal representative, appointing a second
successor personal representative, and denying Richardson’s
motion for sanctions should be vacated. We also determine
that by virtue, inter alia, of the court’s factual findings in the
absence of evidence, it is necessary for the trial judge to recuse
herself to avoid the appearance of partiality. We reverse and
vacate, and remand for further proceedings consistent with
this opinion.
Case No. S-07-109: The County Court’s Order Determining
That the PrimeVest Account Is an Asset
of the Estate Is Vacated.
In the asset case, the issue on appeal is whether the county
court erred in determining that the PrimeVest account is an
estate asset subject to the claims of creditors. After making
this determination, the county court ordered that any transfers
from that account were void and it further ordered the second
successor personal representative to “trace the assets” from
any transfers from the account. As noted above, an argument
raised in the asset case is that certain of the proceedings in the
appointment case caused the county court to prejudge matters
relating to the PrimeVest account. We determine that there is
merit to this argument and therefore conclude that it is appro-
priate to vacate the county court’s order in the asset case and
remand the cause for further proceedings before a different
judge consistent with this opinion.
CONCLUSION
For the reasons stated above, in case No. S-06-1400, we con-
clude that the county court erred in suspending Richardson and
appointing a temporary special administrator, and we reverse
that portion of the county court’s order denying Richardson’s
motion for reconsideration. We determine that under the cir-
cumstances, those portions of the county court’s orders that
permanently removed Richardson as the successor personal
representative, appointed a second successor personal represen-
tative, and denied Richardson’s motion for sanctions should be
vacated and the cause remanded for further proceedings consis-
tent with this opinion. We also determine that it is necessary for
the trial judge to recuse herself upon remand.
IN Re eSTATe OF COOPeR 	333
Cite as 275 Neb. 322

334 	275 NebRASkA RePORTS
In case No. S-07-109, we vacate the county court’s order
and 	remand 	the 	cause 	for 	further 	proceedings 	before 	a
different judge.
J udgment in no . s-06-1400 ReveRsed in paRt and in paRt
vacated , and cause Remanded foR fuRtheR pRoceedings .
J udgment in no . s-07-109 vacated , and cause
Remanded foR fuRtheR pRoceedings .