Johnson v. Anderson

defended a civil action that alleges a claim or defense that a
court determines is frivolous or made in bad faith. See Stewart
v. Bennett, 273 Neb. 17, 727 N.W.2d 424 (2007).
The district court denied appellees’ motion for attorney fees,
concluding that “the Court cannot say that [Lamar’s] lawsuit
was without rational argument based on law and evidence to
support [Lamar’s] position in the lawsuit.” The court further
noted that Lamar’s attorneys were always thoroughly prepared
and that it was evident that the attorneys had spent substantial
time and effort in researching and investigating the claims.
We will not disturb a district court’s rulings on attorney
fees absent an abuse of discretion. After reviewing the history
of this case, we conclude that the trial court did not abuse its
discretion in determining that this case was not frivolous or
brought in bad faith. Therefore, the district court’s denial of
attorney fees is affirmed.
CONCLUSION
The district court properly concluded that when Lamar’s
leases were terminated by their terms, Lamar’s rights with
respect to the nonconforming use of the signs were extin-
guished and remained with the current landowner. Furthermore,
Lamar lacked standing to raise its “as applied” and facial chal-
lenges to ordinance No. 4032 and the district court was not in
error in granting summary judgment in favor of appellees on
Lamar’s remaining claims. Further, the district court did not err
in denying the cross-appellants’ request for attorney fees.
A ffirmed.
roger Johnson, AppellAnt, v. KAthryn l. A nderson And
robert broberg , C opersonAl representAtives of the
estAte of A ner A nderson, deCeAsed, Appellees.
771 N.W.2d 565
Filed September 4, 2009. 	No. S-08-811.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

2. Actions: Trusts: Equity. An action to impose a constructive trust sounds
in equity.
3. Trusts: Proof. A party seeking to have a constructive trust imposed has the bur-
den to establish by clear and convincing evidence the factual foundation required
for a constructive trust.
4. Wills: Proof. A lost will may be proved by secondary evidence that is clear
and convincing.
Appeal from the District Court for Madison County: robert
b. ensz, Judge. Affirmed.
George H. Moyer, Jr., of Moyer, egley, Fullner & Montag,
for appellant.
Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, for
appellees.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACK, and miller-lermAn, JJ.
Wright, J.
NATUre OF CASe
roger Johnson (roger) appeals the decision of the Madison
County District Court, which granted summary judgment in
favor of kathryn L. Anderson (kathryn) and robert broberg
(robert), copersonal representatives of the estate of Aner
Anderson (Aner). The court found that roger had not produced
evidence sufficient to establish the existence of a contract to
make a will pursuant to Neb. rev. Stat. § 30-2351 (reissue
2008). We affirm the decision of the district court.
SCOpe OF reVIeW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted, giving that party
the benefit of all reasonable inferences deducible from the
evidence. In re Estate of Ronan, 277 Neb. 516, 763 N.W.2d
704 (2009).
FACTS
Aner 	died 	testate 	on 	August 	9, 	2005. 	A 	will 	dated
September 18, 2003, was admitted into probate, and pursuant
to that will, kathryn and robert were appointed as copersonal
JOHNSON v. ANDerSON 	501
Cite as 278 Neb. 500

representatives. roger objected to the probate of that will
on the ground that he believed Aner had executed a joint
and mutual will in 1982 with his wife, Mildred Anderson
(Mildred), which contained a contract that the will would not
be revoked. When roger’s objections to the probate of the
September 2003 will were unsuccessful, he sought to impose
a constructive trust on the assets of the estate for the bene-
ficiaries of the 1982 will.
roger is the nephew of Aner and Mildred, both deceased.
roger had resided with Aner and Mildred in Tilden, Nebraska,
while he attended high school from 1949 to 1953. After
graduation, Aner paid for roger to attend mortuary school
and eventually invested in roger’s mortuary businesses in
Wisner and Wayne, Nebraska. Aner and Mildred visited
roger’s home for holidays, christenings, and the birthdays of
roger’s children.
roger testified that in 1982, Aner and Mildred brought
two envelopes—one sealed and one unsealed—to him for
safekeeping. He stated that they represented that the sealed
envelope contained their will and that the unsealed envelope
contained an unsigned copy of the will. roger said that in their
presence, he read the unsigned copy, which appointed him as
the personal representative of the estate, devised one-half of
the residue of the estate to roger and his immediate family,
and devised the other half of the residue to Aner’s surviving
brothers and sisters.
The unsealed envelope’s return address was that of the
law firm of “brogan & Stafford, p.C.,” in Norfolk, Nebraska.
Attorney Thomas e. brogan prepared all of Aner’s subsequent
wills and powers of attorney. brogan testified that the copy of
the 1982 will was printed on paper that he used, but that he did
not remember the 1982 will and that “[i]t probably was never
signed” and “it probably was never executed.”
Mildred died in 1996, but no will was presented for probate.
roger testified that in 1998, Aner retrieved the sealed envelope
he had given roger in 1982. roger said Aner gave him another
sealed envelope containing what Aner represented to be a new
will. In the 1998 will, kathryn, who is of no relation to Aner,
was made a copersonal representative with roger. kathryn
502 	278 NebrASkA repOrTS

was employed at a financial investment company, and she met
Aner when he was executor of his sister’s estate. Later, Aner
retrieved the 1998 will from roger. Aner did not ask roger to
keep any subsequent wills.
Aner made three wills in 2003. In April, Aner changed
his will to make kathryn the residual beneficiary. In July, he
changed the personal representatives from kathryn and roger
to kathryn and Aner’s cousin robert. Finally, in September,
Aner made a third will, in which he reduced the amount left
to roger and his family members to $1,000 each. Aner died
on August 9, 2005. Despite roger’s objections, the September
2003 will was declared to be valid and admitted to for-
mal probate.
roger filed a complaint on October 22, 2007, naming the
personal representatives of Aner’s estate, kathryn and robert,
as defendants. He asked the district court to find that Aner
breached his contract with Mildred to make a joint, mutual,
and contractual will when Aner revoked the 1982 will by
executing subsequent wills. roger also asked the court to
impose a trust on Aner’s estate for the beneficiaries named in
the 1982 will.
An amended complaint was filed on October 29, 2007, and
another motion to amend the complaint was filed in April
2008, seeking to add other affected beneficiaries as parties and
to frame the complaint as one in equity instead of at law. The
district court overruled the motion for leave to file an amended
complaint; however, the court considered the claim as an equi-
table action. It determined that the facts required to establish a
contract to not revoke a will pursuant to § 30-2351 were not
present and granted the personal representatives’ motion for
summary judgment.
ASSIGNMeNTS OF errOr
roger assigns as error the district court’s summary judgment
in favor of the copersonal representatives. He also claims the
court erred in not permitting the filing of a second amended
complaint and in failing to join necessary parties. because
we conclude that summary judgment was proper, we do not
address the remaining assigned errors.
JOHNSON v. ANDerSON 	503
Cite as 278 Neb. 500

ANALYSIS
summAry Judgment
roger sought to impose a constructive trust on the assets of
Aner’s estate based on an alleged 1982 contract to make a will
between Aner and Mildred. He claimed that Aner breached
this contract by destroying the 1982 will and executing subse-
quent wills after Mildred’s death. roger alleged that the 1982
will was a joint and mutual will in which Aner and Mildred
(1) devised one-half of their residuary estate to roger and his
family and (2) agreed to not revoke or change the will upon
the death of the other spouse. The question is whether roger
presented sufficient evidence to prove the existence of such a
contract between Aner and Mildred.
[2,3] An action to impose a constructive trust sounds in
equity. Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471
(2007). A party seeking to have a constructive trust imposed
has the burden to establish by clear and convincing evidence
the factual foundation required for a constructive trust. Pruss v.
Pruss, 245 Neb. 521, 514 N.W.2d 335 (1994). because roger
alleges a contractual agreement between Aner and Mildred not
to revoke their joint and mutual will as the basis for the con-
structive trust, he has the initial burden of proving that Aner
and Mildred entered into such a contract. See id.
Contracts 	to 	make 	wills 	are 	governed 	by 	§ 	30-2351,
which states:
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.
Section 30-2351, part of the Nebraska probate Code, is
identical to § 2-514 of the Uniform probate Code (UpC).
See, Neb. rev. Stat. §§ 30-2201 to 30-2902 (reissue 2008);
Unif. probate Code, rev. art. II, § 2-514, 8 (part I) U.L.A. 159
504 	278 NebrASkA repOrTS

(1998). The purpose of UpC § 2-514 is to “tighten the methods
by which contracts concerning succession may be proved.”
Unif. probate Code, supra, comment, 8 (part I) U.L.A. at 160.
Section 2-514 seeks to avoid the litigation generated by oral
contracts not to revoke wills and allows oral testimony only if
the will references the contract. Id. In order to prevail, roger
must meet the requirements of one of the three subsections
of § 30-2351.
Undisputedly, roger cannot produce an executed will stat-
ing the material provisions of the contract as required by
§ 30-2351(1). An unsigned copy of the 1982 will includes the
following paragraph:
SIXTH, each of us solemnly promises the other that
he or she will not revoke or change this Will or make any
disposition of his or her property by Will, contract, gift or
otherwise without at least two days’ notice in writing to
the other of his or her intention to do so; that any disposi-
tion of his or her property in violation of this provision
shall be void. No change of any kind shall be made by
the survivor affecting the disposition of this property after
the first to die.
Although this language would supply the material terms of the
purported contract, roger cannot produce any evidence that
Aner and Mildred actually executed the will.
except as provided for holographic wills and wills within
§ 30-2331, a will must be in writing, signed by the testator,
and signed by at least two individuals who witnessed either
the signing of the will or the testator’s acknowledgment of the
signature or of the will. See § 30-2327. Despite the fact that
there is no evidence of a 1982 will which met the statutory
requirements for execution, roger attempts to explain this lack
of evidence with his testimony that in 1998, Aner retrieved the
sealed envelope that allegedly contained an executed copy of
the 1982 will.
[4] A lost will may be proved by secondary evidence that
is clear and convincing. In re Estate of Mecello, 262 Neb.
493, 633 N.W.2d 892 (2001). However, such evidence is com-
pletely lacking in this case. roger offers his testimony that
JOHNSON v. ANDerSON 	505
Cite as 278 Neb. 500

Aner and Mildred gave him the copy of the 1982 will and the
sealed envelope, which he claims creates the inference that the
sealed envelope contained a properly executed will. We dis-
agree. No one, not even roger, claims to have seen an executed
copy of the 1982 will or Aner’s signature on the document.
brogan, whose law firm’s name appeared on the envelope
containing the copy of the will and who drafted all of Aner’s
later wills, testified that he did not remember the 1982 will
and that “[i]t probably was never signed” and “it probably was
never executed.”
Furthermore, roger cannot identify anyone who claims to
have witnessed the 1982 will. In In re Estate of Mecello, we
noted that even though it is not necessary to establish the
identity of the two witnesses to a will, it must be proved by
clear and convincing evidence that, in fact, two individuals did
witness the signing of the will or the acknowledgments of the
signatures. See, also, In re Estate of Thompson, 214 Neb. 899,
336 N.W.2d 590 (1983). roger’s testimony that he assumed the
now-missing sealed envelope contained a properly witnessed
will is not evidence that two witnesses signed the 1982 will.
because roger did not present evidence that the 1982 will
was duly executed, he has not established a contract pursuant
to § 30-2351(1).
Section 30-2351(2) provides that a contract may be estab-
lished by an express reference in a will to a contract and
extrinsic evidence proving the terms of the contract. As this
method also requires a duly executed will, roger has not
proved that Aner and Mildred entered into a contract to make
a will pursuant to this subsection for the same reasons as dis-
cussed above.
The third and final method of proving a contract according to
§ 30-2351 is through a writing signed by the decedent evidenc-
ing the contract. See § 30-2351(3). It is undisputed that roger
cannot physically produce a writing signed by Aner evidencing
the contract. Instead, roger claims he can prove a lost contract.
roger asserts that his testimony creates the following infer-
ences: (1) The sealed envelope contained a copy of the 1982
will that included the clause promising not to revoke, (2) Aner
506 	278 NebrASkA repOrTS

and Mildred had signed the document, and (3) Aner destroyed
the will after he retrieved it from roger. roger acknowledges
that this evidence is insufficient to prove an executed will but
claims that it is sufficient to establish a lost contract.
In support of his claim that his oral testimony can be used
as proof of a signed writing evidencing the contract, roger
cites the comment to UpC § 2-514, which states that “[o]ral
testimony regarding the contract is permitted if the will makes
reference to the contract, but this provision of the statute is
not intended to affect normal rules regarding admissibility of
evidence.” Unif. probate Code, rev. art. II, § 2-514, comment,
8 (part I) U.L.A. at 160 (1998).
roger’s reliance on the comment to UpC § 2-514 is mis-
placed. The comment states that the purpose of § 2-514 is to
tighten the methods by which contracts to make a will may be
proved. It is explicit that oral testimony regarding the contract
is permitted only “if the will makes reference to the contract.”
Id. (emphasis supplied). As discussed above, roger cannot
produce a will; therefore, pursuant to the statute, he cannot rely
on his oral testimony to infer a contract. Without an executed
will, roger cannot establish a contract unless he produces a
writing signed by the decedent. He has failed to provide such
a writing.
Section 30-2351 specifically states that the only way to
prove the existence of a contract to make a will or not to revoke
a will or devise is by satisfying one of the three subsections.
Considering the evidence in the light most favorable to roger,
there is no will or signed writing that satisfies § 30-2351.
Conclusions based on guess, speculation, conjecture, or a
choice of possibilities do not create material issues of fact for
purposes of summary judgment. Recio v. Evers, ante p. 405,
771 N.W.2d 121 (2009); Marksmeier v. McGregor Corp., 272
Neb. 401, 722 N.W.2d 65 (2006).
Therefore, the evidence did not warrant the imposition of a
constructive trust on Aner’s estate. The district court did not
err in granting summary judgment in favor of the copersonal
representatives of Aner’s estate, and we affirm the judgment of
the district court.
JOHNSON v. ANDerSON 	507
Cite as 278 Neb. 500

A mendment of pleAdings
roger sought leave to file a second amended complaint in
order to reframe his claim as one in equity rather than at law
and to add all of the beneficiaries of Aner’s September 2003
will as parties. Although pled as a breach of contract claim,
the district court acknowledged that the claim was an equitable
action to impose a constructive trust and analyzed the mat-
ter as such. because we conclude that roger did not meet his
burden of proof to overcome summary judgment, the absence
of the beneficiaries of Aner’s most recent will as defendants is
immaterial as well. Allowing roger to file a second amended
complaint to correct this defect would serve no purpose.
CONCLUSION
Viewing the evidence in the light most favorable to roger,
we conclude that he did not present sufficient evidence to sat-
isfy one of the three ways to establish a contract to make a will
as provided by § 30-2351. Accordingly, we affirm the order of
summary judgment by the district court.
A ffirmed.
nAnCy C onley And todd C onley, AppellAnts , v.
thomAs brAzer And KAthy brAzer , husbAnd
And Wife , et Al ., Appellees.
772 N.W.2d 545
Filed September 4, 2009. 	No. S-08-974.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom
the judgment was granted, and gives that party the benefit of all reasonable infer-
ences deducible from the evidence.
3. Statutes: Appeal and Error. The interpretation of statutes presents questions of
law, in connection with which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court below.
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