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05/10/2019 09:07 AM CDT




                                                      - 357 -
                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                            IN RE ESTATE OF HELMS
                                               Cite as 302 Neb. 357




                      In re Estate of M ark A nthony Helms, deceased.
                 Christopher Helms, Personal R epresentative of the Estate
                       of M ark A nthony H elms, deceased, appellant,
                            v. Gregory L. Turek et al., appellees.
                                                  ___ N.W.2d ___

                                        Filed March 1, 2019.    No. S-18-283.

                 1. Summary Judgment: Appeal and Error. An appellate court will
                    affirm a lower court’s grant of summary judgment if the pleadings and
                    admitted evidence 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. ____: ____. 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 and gives that party the benefit of all reasonable
                    inferences deducible from the evidence.
                 3. Judgments: Issue Preclusion: Appeal and Error. The applicability of
                    issue preclusion is a question of law. On a question of law, an appellate
                    court reaches a conclusion independent of the court below.
                 4. Judgments: Issue Preclusion. Issue preclusion applies where (1) an
                    identical issue was decided in a prior action, (2) the prior action resulted
                    in a final judgment on the merits, (3) the party against whom the doc-
                    trine is to be applied was a party or was in privity with a party to the
                    prior action, and (4) there was an opportunity to fully and fairly litigate
                    the issue in the prior action.
                 5. Decedents’ Estates: Venue. Under Neb. Rev. Stat. § 30-2410(a) (Reissue
                    2016), venue for probate is proper in the county where the decedent was
                    domiciled or, if the decedent was not domiciled in Nebraska, in any
                    county where property of the decedent was located at the time of his or
                    her death.

                 Appeal from the County Court for Butler County: C. Jo
               Petersen, Judge. Affirmed.
                                   - 358 -
              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                          IN RE ESTATE OF HELMS
                             Cite as 302 Neb. 357

    Lindsay E. Pedersen and Katherine R. Hall for appellant.

  Gregory M. Neuhaus and Joseph D. Neuhaus, of Neuhaus
Law Offices, for appellees.

  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.

    Cassel, J.
                       INTRODUCTION
   Decades after the tragic death of Mark Anthony Helms in a
terrorist bombing, his estate obtained a federal court wrongful
death judgment determining that Helms had been domiciled
in North Carolina and that damages would be shared accord-
ing to that state’s law. After funds were collected on that
judgment, his estate applied to the county court for Butler
County, Nebraska, to distribute them instead under a Nebraska
wrongful death statute.1 The county court entered summary
judgment, declaring that the proceeds were to be distributed
equally to Helms’ parents—being his heirs “as existed at the
time of his death.” We conclude that because of the binding
effect of the federal court judgment, the Nebraska wrongful
death statute does not apply and the county court properly
ordered distribution pursuant to the federal court judgment
applying North Carolina law. We affirm the court’s entry of
summary judgment.

                       BACKGROUND
                Wrongful Death and Judgment
   On October 23, 1983, the Islamic Republic of Iran bombed
a U.S. Marine barracks in Beirut, Lebanon. The bombing killed
241 American servicemen, including Helms. Helms, who died
intestate, was survived by his parents and two siblings.

1
    Neb. Rev. Stat. § 30-810 (Reissue 2016).
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                          IN RE ESTATE OF HELMS
                             Cite as 302 Neb. 357

   In 1996, an amendment2 to the Foreign Sovereign Immunities
Act of 19763 allowed victims of state-sponsored terrorism to
bring claims against foreign sovereigns that would otherwise be
immune from civil litigation. In 2001, a claim for the wrongful
death of Helms and other servicemen was brought in a case
filed in the U.S. District Court for the District of Columbia.
The federal court’s subsequent memorandum opinion does not
name Helms’ personal representative, but recites that his estate
was a party to the wrongful death action in federal court. At no
time did a personal representative of Helms file an action for
wrongful death in Nebraska.
   In 2007, the U.S. District Court for the District of Columbia
rendered judgment against the Islamic Republic of Iran.4
According to the court’s opinion, of the 128 deceased serv­
icemen whose personal representatives and estates brought
wrongful death claims, 123 were domiciled in North Carolina
and none were domiciled in Nebraska.
   The federal court’s opinion specifically stated: “[E]ach of
the deceased servicemen has made out a valid claim for wrong-
ful death under North Carolina law. Accordingly, those valid
heirs and beneficiaries under North Carolina’s intestate statute
are entitled to share in the recovery of the damages awarded
as a result of each serviceman’s untimely death.”5 The court
allocated $1,028,509 of the judgment to the wrongful death
claim brought by the personal representative of Helms’ estate.
Helms’ mother died approximately 5 months prior to the entry
of this judgment.
   In 2010, assets belonging to Iran that had been frozen by
the U.S. government were discovered. A federal court allowed
access to the assets, a decision which the U.S. Supreme Court

2
    See Pub. L. No. 104-132, § 221(a), 110 Stat. 1241.
3
    28 U.S.C. § 1602 et seq. (2012 & Supp. IV 2016).
4
    Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25 (D.D.C. 2007).
5
    Id. at 40.
                                  - 360 -
              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                         IN RE ESTATE OF HELMS
                            Cite as 302 Neb. 357

later affirmed.6 In 2016, distribution of the assets commenced.
The amount paid to the estate, after payment of attorney fees
and expenses, amounted to $222,925.77. The disbursement
check was drawn as follows:
       PAY TO THE ORDER OF:
       ESTATE OF MARK A HELMS
       CHRISTOPHER T HELMS, PERSONAL REPRESENTATIVE

                    Petition for Distribution
   On March 30, 2017, the successor personal representative of
the estate filed in an existing probate case in the county court
for Butler County a petition to authorize distribution of the
judgment proceeds under § 30-810. The petition alleged that
Helms was domiciled in Butler County at the time of his death
and that his next of kin were his parents and siblings.
   According to the petition, Helms’ mother left any interest
in the wrongful death claim to her spouse. Her spouse died
in 2012, leaving all of his assets to his children, Gregory L.
Turek, Pamela Joekel, and Deborah Michel (collectively the
interested parties). The petition requested that the court hold a
hearing and determine under § 30-810 the amount of the judg-
ment proceeds that should be distributed to each next of kin
who sustained damages.
                       Summary Judgment
   The interested parties moved for summary judgment, and
the county court sustained the motion. The court found “there
exists no genuine issue as to any material fact regarding to
whom said proceeds are to be distributed, that being the heirs
of . . . Helms as existed at the time of his death, which by law
are his parents equally.” The court ordered that the personal
representative of the estate distribute one-half of the wrongful
death proceeds to the estate of Helms’ mother and one-half to
Helms’ father.

6
    Bank Markazi v. Peterson, ___ U.S. ___, 136 S. Ct. 1310, 194 L. Ed. 2d
    463 (2016).
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                           IN RE ESTATE OF HELMS
                              Cite as 302 Neb. 357

  The estate filed a timely appeal, which we moved to our
docket.7

                  ASSIGNMENTS OF ERROR
   The estate assigns eight errors, which we consolidate and
restate to three: The court erred in (1) granting the interested
parties’ motion for summary judgment relating to the distribu-
tion of wrongful death proceeds, (2) failing to comply with the
provisions of § 30-810, and (3) finding that the wrongful death
proceeds are to be distributed to Helms’ heirs as existed at the
time of his death.

                  STANDARD OF REVIEW
   [1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
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.8 In reviewing a summary judgment, an appel-
late 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 inferences deducible from
the evidence.9
   [3] The applicability of issue preclusion is a question of law.
On a question of law, an appellate court reaches a conclusion
independent of the court below.10

                           ANALYSIS
   The crux of the estate’s appeal is its contention that § 30-810
applies to the distribution of the federal court wrongful death
judgment. Section 30-810 provides that “[t]he avails [of a

 7
     Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
 8
     In re Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017).
 9
     Id.
10
     See In re Interest of Noah B. et al., 295 Neb. 764, 891 N.W.2d 109 (2017).
                                     - 362 -
               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                           IN RE ESTATE OF HELMS
                              Cite as 302 Neb. 357

wrongful death verdict or judgment] shall be paid to and dis-
tributed among the widow or widower and next of kin in the
proportion that the pecuniary loss suffered by each bears to the
total pecuniary loss suffered by all such persons.” This statute
further requires that the court distribute any such proceeds “to
the persons entitled thereto after a hearing thereon . . . .”11
However, we agree with the interested parties that § 30-810 has
no application in the situation before us.
   The estate’s argument based on § 30-810 fails, because we
are not presented with a Nebraska wrongful death claim. No
wrongful death action was brought and no judgment has been
recovered pursuant to that statute for that death. The wrongful
death judgment proceeds that the estate seeks to distribute were
awarded in an action brought in the U.S. District Court for the
District of Columbia under the wrongful death and intestate
succession laws of North Carolina.12
   [4] In distributing the proceeds of the federal court wrong-
ful death action, the estate is barred from now asserting that
Nebraska was Helms’ domicile at the time of his death. The
federal court case determined that North Carolina was Helms’
domicile. Issue preclusion applies where (1) an identical issue
was decided in a prior action, (2) the prior action resulted in
a final judgment on the merits, (3) the party against whom the
doctrine is to be applied was a party or was in privity with a
party to the prior action, and (4) there was an opportunity to
fully and fairly litigate the issue in the prior action.13 Here,
all of those elements are satisfied. Helms’ domicile in North
Carolina and his wrongful death pursuant to North Carolina
law were decided in the federal court case,14 and that action
resulted in a final judgment on the merits. Counsel for the

11
     § 30-810.
12
     See Peterson v. Islamic Republic of Iran, supra note 4.
13
     In re Interest of Noah B. et al., supra note 10.
14
     See Peterson v. Islamic Republic of Iran, supra note 4.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                          IN RE ESTATE OF HELMS
                             Cite as 302 Neb. 357

estate conceded at oral arguments that Helms’ personal repre-
sentative was a party in the federal court case, which implicitly
concedes that Helms’ successor personal representative here
is in privity with that party. Finally, there was an opportunity
to fully and fairly litigate Helms’ domicile in the prior action.
Thus, the estate is bound by the federal court’s determination
that North Carolina was Helms’ domicile.
   It necessarily follows that the distribution of the wrong-
ful death proceeds is governed by North Carolina law. Under
that state’s wrongful death statute,15 any amount recovered
is applied to certain expenses and attorney fees and is then
distributed “as provided in the [North Carolina] Intestate
Succession Act.” North Carolina’s Intestate Succession Act,16
in turn, states that “[i]f the intestate [decedent] is not survived
by a child, children or any lineal descendant of a deceased
child or children, but is survived by both parents, they shall
take in equal shares, or if either parent is dead, the surviving
parent shall take the entire share[.]”17 And the persons who,
under that Intestate Succession Act, are entitled to recovery in
a wrongful death action are to be determined as of the time of
the decedent’s death.18 Because Helms was survived by his par-
ents at the time of his death, North Carolina law dictates that
they share equally in any wrongful death proceeds.
   [5] The estate argues that because a probate case has been
pending in Nebraska since 2001, “Helms must have been
domiciled in Nebraska at the time of his death.”19 But that
premise is flawed. Under Nebraska law, venue for probate is
proper in the county where the decedent was domiciled or, if
the decedent was not domiciled in Nebraska, in any county

15
     N.C. Gen. Stat. § 28A-18-2(a) (2007).
16
     N.C. Gen. Stat. §§ 29-1 through 29-30 (2007).
17
     § 29-15(3).
18
     Bank v. Hackney, 266 N.C. 17, 145 S.E.2d 352 (1965).
19
     Reply brief for appellant at 3.
                                    - 364 -
               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                           IN RE ESTATE OF HELMS
                              Cite as 302 Neb. 357

where property of the decedent was located at the time of
his or her death.20 Thus, commencement of a probate case in
Nebraska did not, in and of itself, preclude Helms from having
been domiciled in North Carolina.
   The estate instead may be implicitly arguing that the
Nebraska probate case was commenced on the basis that Helms
was domiciled in Nebraska. Assuming without deciding that
the earlier pleadings in the probate case are properly before
us and that these pleadings asserted that Helms was domi-
ciled in Nebraska, any such allegation was immaterial here.
Regarding distribution of proceeds of the federal court wrong-
ful death judgment, the estate is collaterally estopped from
asserting that Helms’ domicile is anywhere other than North
Carolina. Likewise, the federal court judgment precludes the
estate from distributing the proceeds other than in accordance
with that judgment.
   The county court properly entered summary judgment,
because there is no genuine issue of material fact in this case.
We agree with the court that the proper distribution of the pro-
ceeds is one-half to Helms’ father and one-half to the estate of
Helms’ mother.
                       CONCLUSION
   Because there is no genuine issue of material fact as to
whom the wrongful death judgment proceeds should be distrib-
uted, we affirm the county court’s entry of summary judgment.
                                                  A ffirmed.

20
     Neb. Rev. Stat. § 30-2410(a) (Reissue 2016).
