In re Estate of Lakin , 310 Neb. 271 ( 2021 )

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www.nebraska.gov/apps-courts-epub/
10/22/2021 12:07 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271In re Estate of Charles E. Lakin, deceased.
Charles E. Lakin Foundation, Inc., appellant, v.
Thomas Pribil and William Kilzer, Copersonal
Representatives of the Estate of
Charles E. Lakin, appellees.
In re Trust of Charles E. Lakin, deceased.
Charles E. Lakin Foundation, Inc. appellant, v.
Thomas Pribil and William Kilzer, Cotrustees
of the Charles E. Lakin Revocable
Trust, et al., appellees.
Filed October 8, 2021. Nos. S-20-093, S-20-094.
1. Summary Judgment: Appeal and Error. An appellate court affirms 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 the 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. Summary Judgment: Jurisdiction: Appeal and Error. When review-
ing cross-motions for summary judgment, an appellate court acquires
jurisdiction over both motions and may determine the controversy that
is the subject of those motions.
4. Appeal and Error. An appellate court may specify the issues as to
which questions of fact remain and direct further proceedings as the
court deems necessary.
5. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 2716. Jurisdiction: Final Orders: Appeal and Error. Generally, for an
appellate court to acquire jurisdiction of an appeal, there must be a final
order entered by the court from which the appeal is taken.
7. Final Orders. When a trial court clearly intends its order to serve as a
final adjudication of the rights and liabilities of the parties, the order’s
silence on requests for relief can be construed as a denial of those
requests.
8. Final Orders: Appeal and Error. Pursuant to Neb. Rev. Stat.
§ 25-1902(b) (Cum. Supp. 2020), an order affecting a substantial right
made during a special proceeding is a final order which may be vacated,
modified, or reversed.
9. Decedents’ Estates. A proceeding under the Nebraska Probate Code is a
special proceeding.
10. Decedents’ Estates: Final Orders: Appeal and Error. A proceeding
under Neb. Rev. Stat. § 30-2454 (Reissue 2016) to remove a personal
representative for cause is a special proceeding and can be a final,
appealable order even though it may not terminate the action or consti-
tute a final disposition of the case.
11. Final Orders: Appeal and Error. A substantial right is involved if an
order affects the subject matter of the litigation, such as diminishing a
claim or defense that was available to an appellant before the order from
which an appeal is taken.
12. Decedents’ Estates: Final Orders: Appeal and Error. An order deny-
ing an application for the appointment of a special administrator in a
probate dispute is a final, appealable order because the denial of such
cannot be effectively vindicated on appeal from the judgment in which
the probate estate would be finally established.
13. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
14. Judgments: Appeal and Error. The plain language of Neb. Rev. Stat.
§ 25-1912(1) (Cum. Supp. 2020) provides that a notice of appeal must
be filed within 30 days after the entry of the judgment, signed by either
the appellant or appellant’s attorney, and that the appellant must pay the
required docket fee.
15. Actions: Promissory Notes: Reformation: Equity: Courts. While an
action on a promissory note is an action at law, reformation sounds in
equity. And a court of equity will look to the substance of a transaction,
rather than give heed to the mere form it may assume.
16. Promissory Notes: Words and Phrases. A promissory note is an
unconditional written promise, signed by the maker, to pay absolutely
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271and in any event a certain sum of money either to, or to the order of,
the bearer or a designated person.
17. Wages: Words and Phrases. Deferred compensation is defined as com-
pensation which is earned in exchange for services rendered.
18. Employment Contracts: Limitations of Actions. Parties to a contract
of employment may agree that compensation for the services to be fur-
nished shall be deferred until the completion of the work, but in such
cases, the statute of limitations does not begin to run until the work has
been fully performed.
19. Decedents’ Estates: Limitations of Actions: Notice: Claims. Under
Neb. Rev. Stat. § 30-2483 (Reissue 2016) of the Nebraska Probate Code,
the clerk of the county court must give notice to creditors of an estate to
present their claims within 2 months after the date of the first publica-
tion of the notice or be forever barred.
20. Decedents’ Estates: Limitations of Actions: Waiver. Only with the
consent of all successors may a personal representative waive any
defense of limitations available to the estate.
21. Decedents’ Estates: Limitations of Actions: Claims: Waiver. If the
defense of limitations is not waived by the personal representative, no
claim against the estate which was barred by any statute of limitations
at the time of the decedent’s death shall be allowed or paid.
22. Decedents’ Estates: Employment Contracts. Recovery is permitted
for services rendered to a decedent during his or her lifetime if evidence
shows that services were rendered under an express contract, either writ-
ten or oral, to pay for them.
23. Decedents’ Estates: Notice: Claims. Mere notice to a representative
of an estate regarding a possible demand or claim against the estate
does not constitute presenting or filing a claim under Neb. Rev. Stat.
§ 30-2486 (Reissue 2016).
24. Decedents’ Estates: Claims: Limitations of Actions. All claims against
a decedent’s estate which arose before the death of the decedent, if
not barred by another statute of limitations, are barred against the
estate, the personal representative, and the heirs and devisees of the
decedent, unless presented according to Neb. Rev. Stat. § 30-2485(a)
(Reissue 2016).
25. Decedents’ Estates: Claims. The purpose of Neb. Rev. Stat. § 30-2485(Reissue 2016) is to facilitate and expedite proceedings for distribu-
tion of a decedent’s estate, including an early appraisal of the respec-
tive rights of interested persons and the prompt settlement of demands
against the estate.
26. ____: ____. As a result of the nonclaim statute, the probate court or the
personal representative can readily ascertain the nature and extent of
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271the decedent’s debts, determine whether any sale of property is neces-
sary to satisfy a decedent’s debts, and project a probable time at which
the decedent’s estate will be ready for distribution.
27. Decedents’ Estates: Claims: Limitations of Actions. If presentation of
a claim against a decedent’s estate is required, a claim that is not duly
and timely presented generally is barred, unless the delay is excused or
relief is granted, and a claim that is not duly presented does not consti-
tute a charge against, or a lien on, the estate.
28. Malpractice. Whether a breach of fiduciary duty has occurred is a ques-
tion of fact.
29. Summary Judgment. On a motion for summary judgment, the question
is not how a factual issue is to be decided but whether any real issue of
material fact exists.
30. ____. Entry of summary judgment is appropriate only if there are no
genuine issues of fact and if, as a consequence, one party is entitled to
judgment as a matter of law.
31. Summary Judgment: Parties. The fact that both parties simultaneously
are arguing that there is no genuine dispute of fact does not establish
that a trial is unnecessary.
32. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admis-
sion, as a formal act done in the course of judicial proceedings, is a
substitute for evidence and thereby waives and dispenses with the pro-
duction of evidence by conceding for the purpose of litigation that the
proposition of fact alleged by an opponent is true.
33. Pleadings: Intent. Judicial admissions must be deliberate, clear, and
unequivocal, and they do not extend beyond the intent of the admission
as disclosed by its context.
34. Pleadings. Formal acts that may operate as judicial admissions include
statements made in pleadings.
Appeal from the County Court for Douglas County:
Stephanie S. Shearer, Judge. Reversed and remanded for
further proceedings.
Zachary W. Lutz-Priefert, Frederick D. Stehlik, William J.
Lindsay, Jr., and John A. Svoboda, of Gross & Welch, P.C.,
L.L.O., for appellant.
Edward D. Hotz, Amanda M. Forker, and Benjamin C.
Deaver, of Pansing, Hogan, Ernst & Bachman, L.L.P., for
defendants-appellees Thomas L. Pribil and William A. Kilzer.
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271Trenten P. Bausch and Megan S. Wright, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellee Thomas L.
Pribil in his individual capacity.
Cathy S. Trent-Vilim and Brian J. Brislen, of Lamson,
Dugan & Murray, L.L.P., for appellee William A. Kilzer, an
individual.
Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg,
JJ.
Funke, J.
The Charles E. Lakin Foundation, Inc., appeals from the
granting of summary judgment in favor of Thomas Pribil and
William Kilzer, appellees, who are the copersonal representa-
tives of the estate of Charles E. Lakin and the cotrustees of the
Charles E. Lakin Revocable Trust. The foundation contends
appellees improperly paid Pribil approximately $7 million
after Lakin’s death. On appeal, we conclude that because Pribil
failed to file a claim for the debt with the estate, appellees’
payment of the debt was not authorized. Based upon the sum-
mary judgment record before this court, we conclude that a
dispute of material fact exists regarding the foundation’s fidu-
ciary duty claims against appellees as copersonal representa-
tives and cotrustees. Therefore, we reverse, and remand for
further proceedings consistent with this opinion.
I. BACKGROUND
1. Parties
Lakin amassed an estate worth approximately $170 million
at the time of his death. Lakin’s businesses included owner-
ship of numerous farms in Iowa and Arizona. Lakin operated
his business as Lakin Enterprises, which was not incorporated
or established as a limited liability company. In 1972, Pribil
began working for Lakin.
In his “Last Will and Testament,” Lakin nominated
Pribil and Kilzer, Lakin’s grandson, to serve as copersonal
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271representatives of his estate. Lakin executed a trust, appointed
Pribil and Kilzer to serve as cotrustees of the trust, and made
the trust the primary beneficiary of his will.
Lakin’s son, Charles E. Lakin III (Chuck), worked for him
from 1977 until 2014. Initially, Chuck was a copersonal rep-
resentative and cotrustee of Lakin’s estate and trust. In 2016,
Lakin changed his will and trust agreement to remove Chuck
from both representative positions and nominated Kilzer in
his place.
2. Trust Agreement
Lakin named the foundation as the primary beneficiary of
the trust. The trust authorized, but did not direct, the trustee
to “pay or satisfy any other obligations of the Grantor’s estate
(including without limitation debts of the Grantor and expenses
of administration of the Grantor’s estate) as the Trustee in its
sole discretion may deem appropriate.” Further, the trust agree-
ment gave the trustee the power to dispose of any securities
or property and to make payments and allocate principal or
income or any property received as a result thereof.
3. Promissory Note
In 1984, Lakin wanted to increase Pribil’s salary, but did not
want Chuck to know. As a result, Lakin made a confidential
agreement to pay Pribil deferred wages in the future. Lakin
and Pribil worked together to prepare a document entitled
“Promissory Note” (note) setting forth their agreed-upon terms.
The note reads:
ON DEMAND, FOR VALUE RECEIVED, [Lakin]
promises to pay to [Pribil], or order, the sum of ONE
MILLION TWO HUNDRED THOUSAND DOLLARS
($1,200,000.00), plus an additional amount of FIFTY
THOUSAND DOLLARS ($50,000.00) on each anniver-
sary date of Pribil’s continuous employment by Lakin,
together with interest, from date of demand at the rate of
twelve percent (12%) per annum.
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271The initial principal amount of this note represents
additional compensation to Pribil from Lakin for the first
twelve (12) years of Pribil’s employment with Lakin.
Demand for payment on this Note by Pribil cannot be
made by Pribil until Pribil reaches the age of sixty (60)
or the demise of Lakin, whichever date occurs first. This
date shall then be the due date of this note.
The due date of this note, it is anticipated by Lakin,
will be the date of the demise of Lakin and Lakin hereby
directs the estate of Lakin to pay out to Pribil all mon-
ies, due under this Note, in whole or in part, from time
to time, as specifically directed by Pribil within ten (10)
days after receipt of notice, from Pribil.
In addition to the payment to Pribil of all monies due
under this Note, Lakin agrees and directs that the princi-
pal part of this Note shall be paid to Pribil as a tax free
gift to Pribil or with all federal and state income taxes
paid in full so that the entire principal part of this note
shall be net “tax free” monies to Pribil.
In addition to this note, this date, Lakin and Pribil have
entered into an Incentive Compensation Agreement which
is known to parties other than Lakin and Pribil; how-
ever, for family reasons of Lakin, Lakin has requested
of Pribil, and Pribil agrees, to keep this note confidential
between Lakin and Pribil. The only other party that has
knowledge of this note is the party that typed it for Lakin
and this party has agreed to Lakin to also keep it confi-
dential. To Lakin’s knowledge, Pribil does not know who
this party is.
With this note it is Lakin’s intent that Pribil shall
have and for Pribil to know that Pribil will have forever
financial security. Lakin feels this is justly due to Pribil
for Pribil’s dedication to Lakin and superb performance
in Lakin’s behalf and to provide to Pribil the additional
incentive to remain in the continuous employ of Lakin.
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271The validity of the written note is not contested. However,
an alleged oral modification is contested. According to Pribil,
he and Lakin orally agreed to reduce the interest rate to 6 per-
cent annually and agreed that interest would accrue on Pribil’s
60th birthday. Pribil claimed that in order to keep the agree-
ment confidential, the note would become due upon Lakin’s
death. Pribil testified that interest began when he turned 60
years old in March 2007, even though he did not make a
demand at that time. Pribil opined that the note was a compen-
sation agreement for deferred wages due to him for his work
with Lakin Enterprises.
4. Probate Proceedings
Lakin died in March 2016. In April 2016, Pribil and Kilzer
filed an application for informal probate of the will and infor-
mal appointment of a personal representative to administer
Lakin’s estate. In the application, Pribil and Kilzer stated that
neither was indebted to the estate nor a creditor of the estate.
During a deposition, Pribil was asked whether his statement
from the application was accurate, to which he responded,
“Outside of my wages, but I never — I never understood —
I’m certainly not indebted, and I didn’t consider myself a
creditor, because wages is ongoing[.]” Pribil also characterized
the debt as “an obligation of [Lakin]” and as “wages owing by
the Estate.”
Lakin’s will, which was admitted into probate, provides, in
part, “My Personal Representative shall pay all enforceable
debts, unsatisfied charitable pledges, funeral expenses, costs
of administration including ancillary administration, costs of
safeguarding and delivering devises, and other proper charges
against my estate as soon as practicable.”
5. Payment
It is undisputed that Pribil did not file a claim in the estate
proceedings. However, in April 2016, Pribil and Kilzer began
discussions with their legal counsel regarding payment of the
debt to Pribil. In June 2016, Pribil asked Lakin’s accountant
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271to calculate the debt. On September 26, with the consent
of Kilzer but without approval from the court, Pribil paid
himself $6,946,828.33 as payment due under the note, with
$3,242,869.12 withheld for taxes, leaving a net payment of
approximately $3.7 million. In order to make the full payment
under the note, Pribil and Kilzer liquidated stocks held by the
trust without a request to the court.
6. Petitions for Removal and Surcharge
In May 2018, the foundation filed a petition for suspension,
removal, and surcharge of the personal representatives and
for appointment of successor copersonal representatives or a
special administrator. At the same time, the foundation filed a
petition for suspension, removal, and surcharge of the trustees
and for appointment of successor cotrustees or a special fidu-
ciary. The foundation moved to compel distribution of assets
from the estate to the foundation and filed similar motions in
the trust case. Pribil and Kilzer objected to the motions and,
subsequently, moved for summary judgment in each case. The
foundation, in turn, moved for partial summary judgment in
each case. The foundation later renewed its motions to compel
distribution of assets. Pribil and Kilzer filed an objection in the
probate case.
On June 26, 2018, in both cases, the court held a hearing on
the foundation’s petitions for suspension and removal and took
the matter under advisement. At the next hearing, the court
informed the parties that it had not yet ruled on the matter from
the previous hearing, and it advised that it would not be able to
proceed that day due to new information that had come to light
during the discovery process.
At a December 6, 2018, hearing, the foundation offered
into evidence in the probate case the amended petitions for
suspension, removal, and surcharge of copersonal representa-
tives and appointment of successor copersonal representatives
or a special administrator. The foundation offered into evi-
dence Pribil and Kilzer’s answers in both cases. On December
20, the court held a hearing regarding the motion to compel
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271distribution of assets, and it later held a hearing on a motion
to stay payment of attorney fees.
7. County Court’s Order
On January 6, 2020, the county court entered a single order
covering both cases. The court listed the motions that were
pending to include (1) a motion for partial summary judgment
filed by the foundation, (2) a motion for summary judgment
filed by Pribil in his individual capacity, (3) a motion for sum-
mary judgment filed by Kilzer in his individual capacity, (4)
a motion for summary judgment filed by Pribil and Kilzer in
their representative capacities, (5) a motion to stay or set aside
attorney fees, (6) the motion to compel distribution of assets,
and (7) the renewed motion to compel distribution of assets.
The court granted summary judgment in favor of Pribil
and Kilzer in their individual and representative capacities. In
doing so, the court found that Pribil and Kilzer did not breach
their fiduciary duties to the estate by paying the note or by
delaying the administration of the estate. The court further
found that Pribil and Kilzer did not breach their fiduciary
duties to the trust by processing and disbursing the funds from
the trust according to the terms of the note or by delaying the
administration of the trust.
The court overruled the foundation’s motion for partial sum-
mary judgment in both matters. The court overruled the foun-
dation’s motions to compel distribution and amended motions
to compel distribution. However, the court’s order did not dis-
miss the foundation’s petitions, nor did it explicitly rule on the
foundation’s requests that Pribil and Kilzer be surcharged or be
directed to provide an accounting.
8. Appeals
On February 4, 2020, the foundation filed two notices of
appeal. The notice of appeal in the probate case identified
the foundation as the appealing party and was signed by the
foundation’s attorney. The foundation filed a separate notice of
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271appeal in the trust case, signed by the same attorney, but incor-
rectly identified the trust as the appealing party. Over 2 months
later, the foundation filed a motion to correctly identify the
parties on appeal in the trust case, which the Nebraska Court
of Appeals sustained. On our own motion, we moved the cases
to our docket pursuant to our authority to regulate the dockets
of the appellate courts.
II. ASSIGNMENTS OF ERROR
The foundation assigns, restated and consolidated, that the
county court erred in (1) finding that the note was a deferred
compensation agreement; (2) finding that the note was not
barred by the applicable statute of limitations; (3) finding
that Lakin and Pribil orally modified the note; (4) finding
that Pribil was not required to file a claim with the estate,
and thus concluding that Pribil and Kilzer in their representa-
tive capacities were allowed to pay the amount due under the
note; (5) concluding that Pribil had not judicially admitted his
status as a creditor; (6) concluding that Pribil and Kilzer did
not breach their fiduciary duties to the estate or to the trust;
(7) not removing Pribil and Kilzer and appointing a successor
personal representative and trustees; (8) not requiring Pribil,
under Neb. Ct. R. § 6-1437 (rev. 2020), to obtain the court’s
permission to pay himself in excess of $250; and (9) conclud-
ing that Pribil and Kilzer were allowed to rely upon profes-
sional advice.
III. STANDARD OF REVIEW
[1,2] An appellate court affirms 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 the
facts and that the moving party is entitled to judgment as a
matter of law. 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
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Cite as 310 Neb. 271party the benefit of all reasonable inferences deducible from
the evidence. 1
[3,4] When reviewing cross-motions for summary judgment,
an appellate court acquires jurisdiction over both motions and
may determine the controversy that is the subject of those
motions; an appellate court may also specify the issues as to
which questions of fact remain and direct further proceedings
as the court deems necessary. 2
IV. ANALYSIS
1. Jurisdictional Issues
(a) Final, Appealable Order
[5,6] It is the power and duty of an appellate court to
determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties. 3
Generally, for an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the court from
which the appeal is taken. 4 Thus, as a threshold matter, we first
address whether the county court’s order granting summary
judgment is a final order.
[7] The county court’s order did not explicitly discuss the
foundation’s petition for suspension, removal of, and sur-
charge of personal representatives and for appointment of suc-
cessor copersonal representatives or a special administrator.
However, when a trial court clearly intends its order to serve
as a final adjudication of the rights and liabilities of the par-
ties, the order’s silence on requests for relief can be construed
as a denial of those requests. 5 Here, it is clear to us that the
county court intended its order granting summary judgment
1
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
2
Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015); Chicago
Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d 469 (2011).
3
In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
4
Id.; State v. Riensche, 283 Neb. 820, 812 N.W.2d 293 (2012).
5
See In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).
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Cite as 310 Neb. 271to serve as a final adjudication of the rights and liabilities of
the parties.
The foundation asked the court for removal of appellees and
for surcharge, based on the argument that appellees breached
their fiduciary duties to the estate and the trust by paying
Pribil’s note and delaying distribution of the trust assets. In
granting appellees’ motions for summary judgment, the county
court explicitly found that appellees did not breach their fidu-
ciary duties owed to the estate or the trust. Additionally, the
county court explicitly found that appellees properly paid
Pribil’s claim and did not delay distribution of the trust assets.
As such, the county court considered the foundation’s requests
for affirmative relief and effectively, albeit implicitly, denied
those requests. In this case, the court’s order can be understood
as a dismissal of the foundation’s petitions, even if the order
did not state so explicitly. We must next consider whether the
order was final under Neb. Rev. Stat. § 25-1902(1)(b) (Cum.
Supp. 2020).
[8-11] Under § 25-1902(1)(b), an order affecting a substan-
tial right made during a special proceeding is a final order
which may be vacated, modified, or reversed. This court has
previously determined that a proceeding under the Nebraska
Probate Code is a special proceeding. 6 More specifically, we
have acknowledged that a proceeding under Neb. Rev. Stat.
§ 30-2454 (Reissue 2016) to remove a personal representa-
tive for cause is a special proceeding within the meaning of
§ 25-1902 and therefore can result in a final, appealable order
even though it may not terminate the action or constitute a
final disposition of the case. 7 Further, a substantial right is
involved if an order affects the subject matter of the litigation,
such as diminishing a claim or defense that was available to
an appellant before the order from which an appeal is taken. 8
6
See In re Estate of McKillip, supra note 3.
7
See In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992).
8
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Cite as 310 Neb. 271It is clear to us that the court’s order disposed of the founda-
tion’s petitions and, therefore, affected a substantial right of the
foundation. Moreover, a substantial right is affected when that
right cannot be effectively vindicated in an appeal from another
possible final judgment in the case. 9
[12] In In re Estate of Muncillo, 10 we determined that an
order denying an application for the appointment of a special
administrator in a probate dispute was a final, appealable order,
because the denial of such could not be effectively vindicated
on appeal from the judgment in which the probate estate would
be finally established, and that thus, the denial affected an
essential legal right. 11 Here, just as in In re Estate of Muncillo,
the dismissal of the foundation’s petition seeking removal of
appellees and the appointment of a special administrator can-
not be effectively vindicated on appeal from any other poten-
tial final judgment or resolution of the case. The court’s order
affected an essential legal right of the foundation. 12 The county
court’s order operated as a final, appealable order.
(b) Defect in Notice of Appeal
As explained above, the notice of appeal filed in the trust case
misidentified the appealing party. Kilzer argues this is a fatal
flaw that deprives this court of proper appellate jurisdiction.
In Hearst-Argyle Prop. v. Entrex Comm. Servs., 13 we deter-
mined that a notice of appeal filed under the wrong docket
number was not fatal to appellate jurisdiction. We recognized
that the notice of appeal filed in that case correctly identi-
fied the parties and the order being appealed from and that no
9
See id.10
In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).
11
Id.12
See, e.g., Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115(2017).
13
Hearst-Argyle Prop. v. Entrex Comm. Servs., 279 Neb. 468, 778 N.W.2d
465 (2010).
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Cite as 310 Neb. 271party was confused or misled by the notice. 14 Here, there is no
claim that the defect in the notice of appeal confused or misled
a party. In fact, in a stipulation, all parties acknowledged the
pending appeal and sought to correct a different issue in the
transcript. Any scrivener’s error in one of the notices of appeal
had no impact on the parties and does not warrant a dismissal
of this appeal.
Kilzer argues that this case can be distinguished from Hearst-
Argyle Prop. because under Neb. Rev. Stat. § 25-1912 (Cum.
Supp. 2020), the identity of an appealing party is a statutory
requirement. We disagree.
Neb. Rev. Stat. § 30-1601(1) (Cum. Supp. 2020) provides
that “[i]n all matters arising under the Nebraska Probate Code
. . . appeals may be taken to the Court of Appeals in the
same manner as an appeal from district court to the Court of
Appeals.” Section 30-1601(2) provides that “[a]n appeal may be
taken by any party and may also be taken by any person against
whom the final judgment or final order may be made or who
may be affected thereby.” Section 25-1912(1) provides:
The proceedings to obtain a reversal, vacation, or modifi-
cation of judgments and decrees rendered or final orders
made by the district court, including judgments and sen-
tences upon convictions for felonies and misdemeanors,
shall be by filing in the office of the clerk of the district
court in which such judgment, decree, or final order
was rendered, within thirty days after the entry of such
judgment, decree, or final order, a notice of intention to
prosecute such appeal signed by the appellant or appel-
lants or his, her, or their attorney of record and, except as
otherwise provided in sections 25-2301 to 25-2310 and
29-2306 and subsection (4) of section 48-638, by depos-
iting with the clerk of the district court the docket fee
required by section 33-103.
[13,14] It is well established that in general, statutory lan-
guage is to be given its plain and ordinary meaning, and an
14
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Cite as 310 Neb. 271appellate court will not resort to interpretation to ascertain the
meaning of statutory words which are plain, direct, and unam-
biguous. 15 The plain language of § 25-1912(1) provides that a
notice of appeal must be filed within 30 days after the entry of
the judgment, signed by either the appellant or the appellant’s
attorney, and that the appellant must pay the required docket
fee. Looking at the plain language of § 25-1912(1), there is no
requirement that a notice of appeal must include the appellant’s
name. Therefore, we reject Kilzer’s argument.
Because the notice of appeal in the trust case was timely
filed, was filed under the correct docket, correctly identified
the order being appealed from, and was signed by the founda-
tion’s counsel, we find the notice of appeal met all of the statu-
tory requirements under § 25-1912.
We conclude that the court’s order operated as a final,
appealable order, that both notices of appeal met statutory
requirements, and that this court has appellate jurisdiction over
the probate case and the trust case.
2. Note
The central dispute in this matter involves the 1984 agree-
ment between Lakin and Pribil styled as a promissory note.
The parties disagree as to whether the agreement is a promis-
sory note or a deferred compensation agreement. In its order,
the county court characterized the note as a deferred compensa-
tion agreement.
[15,16] “While an action on a promissory note is an action
at law, reformation sounds in equity. And a court of equity will
look to the substance of a transaction, rather than give heed to
the mere form it may assume.” 16 A promissory note is “‘[a]n
unconditional written promise, signed by the maker, to pay
15
Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947
N.W.2d 731 (2020); Metropolitan Utilities Dist. v. Balka, 252 Neb. 172,
560 N.W.2d 795 (1997).
16
See Marcovitz v. Rogers, 276 Neb. 199, 205, 752 N.W.2d 605, 609-10
(2008).
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Cite as 310 Neb. 271absolutely and in any event a certain sum of money either to,
or to the order of, the bearer or a designated person.’” 17
[17,18] Generally, deferred compensation is defined as com-
pensation which is earned in exchange for services rendered. 18
Parties to a contract of employment may agree that compen-
sation for the services to be furnished shall be deferred until
the completion of the work, but in such cases, the statute
of limitations does not begin to run until the work has been
fully performed. 19
In this case, although the document bears the title “Promissory
Note,” the substance of the document clearly reflects Lakin’s
intention to provide Pribil with additional compensation for his
services as an employee, as seen in a few key provisions. The
second paragraph of the document provides, “The initial prin-
cipal amount of this note represents additional compensation
to Pribil from Lakin for the first twelve (12) years of Pribil’s
employment with Lakin.” Additionally, the seventh paragraph
of the document states:
With this note it is Lakin’s intent that Pribil shall
have and for Pribil to know that Pribil will have forever
financial security. Lakin feels this is justly due to Pribil
for Pribil’s dedication to Lakin and superb performance
in Lakin’s behalf and to provide to Pribil the additional
incentive to remain in the continuous employ of Lakin.
This language demonstrates Lakin’s intent to pay Pribil com-
pensation earned in exchange for the services Pribil rendered
as an employee.
Therefore, though the parties styled their written agreement
as a promissory note, the county court did not err in character-
izing the document as a deferred compensation agreement.
17
Id. at 204, 752 N.W.2d at 609, quoting Black’s Law Dictionary 1089 (8th
ed. 2004).
18
Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019); Livingston v.
Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475 (2005).
19
Weiss v. Weiss, 179 Neb. 714, 140 N.W.2d 15 (1966).
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Cite as 310 Neb. 2713. Statute of Limitations
The foundation argues the note was unenforceable because
the statute of limitations had run by the time the note was paid.
Under Neb. Rev. Stat. § 25-205 (Reissue 2016), “an action
upon a . . . contract, or promise in writing . . . can only be
brought within five years.” The foundation argues that under
the note, demand for payment could not be made until the
earlier of Pribil’s 60th birthday, which occurred in 2007, or
Lakin’s death, which occurred in 2016. As a result, the foun-
dation contends that the demand date should have occurred in
2007 and that since it did not, the statute of limitations expired
in 2012.
However, as just discussed, we consider the written agree-
ment to be a deferred compensation agreement. As we have
previously held, under a deferred compensation agreement,
the statute of limitations does not begin to run until the work
has been fully performed. 20 The statute of limitations on the
note did not commence to run until Pribil ceased to work for
Lakin, 21 which occurred upon Lakin’s death in March 2016.
Here, the statute of limitations did not expire until March 2021
and, thus, did not bar payment under the note. The county court
did not err in finding the note was not barred by the applicable
statute of limitations.
4. Oral Modification
The foundation argues that the county court erred in finding
that Lakin and Pribil orally modified the deferred compensa-
tion agreement. The foundation contends that because the
parties reduced their agreement to writing, by operation of
law, the agreement could not be orally modified. Appellees
20
See id.21
See, Sodoro, Daly v. Kramer, 267 Neb. 970, 679 N.W.2d 213 (2004); In
re Estate of Baker, 144 Neb. 797, 14 N.W.2d 585 (1944); In re Estate of
Skade, 135 Neb. 712, 283 N.W. 851 (1939); Phifer v. Estate of Phifer, 112
Neb. 327, 199 N.W. 511 (1924).
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Cite as 310 Neb. 271counter that the terms of a written executory contract may
be orally modified by the parties thereto at any time after its
execution and before a breach has occurred, without any new
consideration.
The terms of the original agreement indicated that Pribil
could make demand for payment of the note after he turned
60 years of age. The agreement called for interest on the sums
owed to Pribil to accrue at the rate of 12 percent per annum
from the date of demand. In the trial court, appellees alleged
that the agreement was orally modified to reduce the interest
rate to 6 percent per annum and to fix the demand date as the
date of Lakin’s death.
On appeal, the parties seem to agree that the agreement
was orally modified, insofar as both advocate for a 6-percent
interest rate. Having considered the foundation’s appeal, we
conclude that the alleged oral amendment is irrelevant. As
we explain in greater detail below, the debt was incurred dur-
ing Lakin’s life and was subject to the claims-barred statute
applicable in estate proceedings. This assignment of error is
without merit.
5. Claim
[19-21] Under Neb. Rev. Stat. § 30-2483 (Cum. Supp.
2020) of the Nebraska Probate Code, the clerk of the county
court must give notice to creditors of an estate to present their
claims within 2 months after the date of the first publication
of the notice or be forever barred. Only with the consent of all
successors may a personal representative waive any defense of
limitations available to the estate. 22 If the defense of limitations
is not waived by the personal representative, no claim against
the estate which was barred by any statute of limitations at the
time of the decedent’s death shall be allowed or paid. 23
22
Neb. Rev. Stat. § 30-2484 (Reissue 2016).
23
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Cite as 310 Neb. 271(a) Necessity of Claim
The parties disagree as to whether Pribil was required to file
a claim in the estate proceeding before the debt could be paid.
The foundation contends that the debt was incurred by Lakin
during his lifetime and that therefore, a claim was required.
Appellees contend that the amounts owed to Pribil were merely
wages earned after Lakin’s death or administrative expenses of
the estate and that thus, no claim was required. The probate
court agreed with appellees and ruled that since Pribil sought
payment only after Lakin’s death, no claim was needed.
Appellees rely upon Neb. Rev. Stat. §§ 30-2476 and
30-2487 (Reissue 2016) to support their argument. Section
30-2476(3) authorizes personal representatives to perform the
decedent’s contracts that continue as obligations of the estate.
Additionally, § 30-2476 specifically provides that the personal
representatives, “acting reasonably for the benefit of the inter-
ested persons, may properly . . . (24) continue any unincorpo-
rated business or venture in which the decedent was engaged
at the time of death.” Under § 30-2487(a), when the assets of
the estate are insufficient to pay all claims in full, costs and
expenses of administration of an estate have the first priority
for payment. Costs and expenses of administering an estate
include “expenses incurred in taking possession or control of
estate assets and the management, protection, and preservation
of the estate assets, expenses related to the sale of estate assets,
and expenses in the day-to-day operation and continuation of
business interests for the benefit of the estate.” 24
Here, Lakin owed Pribil $1.2 million as of November 5,
1984, as additional compensation for the first 12 years of
Pribil’s employment. Additionally, the note indicated that Lakin
would owe an additional $50,000 each year of Pribil’s contin-
ued employment thereafter; that Pribil could demand payment
after he reached 60 years of age or at the time of Lakin’s
death, whichever occurred first; and that Lakin’s estate was
24
§ 30-2487(c).
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Cite as 310 Neb. 271directed to pay Pribil within 10 days of Pribil’s demand. The
note further indicated that the note would become due upon
either Pribil’s 60th birthday or Lakin’s demise.
[22] The record shows that the sums paid to Pribil were for
periods of time Pribil worked for Lakin before his death. The
note stated that the debt owed by Lakin arose during his life-
time. Though Pribil continued in his employment after Lakin’s
death, for purposes of compensation due under the note, the
fact that Lakin did not incorporate Lakin Enterprises indicates
that at Lakin’s death, Pribil no longer worked for Lakin per-
sonally and any additional work would be chargeable to the
estate. 25 Recovery is permitted for services rendered to a dece-
dent during his or her lifetime if evidence shows that services
were rendered under an express contract, either written or oral,
to pay for them. 26
We conclude that the debt was for deferred wages earned by
Pribil during Lakin’s life. As such, the debt was not for wages
earned after Lakin’s death or for an administrative expense of
the estate. In order for the debt to be a valid debt of the estate,
a claim needed to be filed.
(b) Filing of Claim
Neb. Rev. Stat. § 30-2486 (Reissue 2016) sets forth two
ways in which a claim against an estate may be presented.
Under § 30-2486(1), the claim may be filed with the probate
court. Alternatively, under § 30-2486(2), a claimant may file
suit to recover the amount of the claim, so long as the suit is
filed within the time period provided for filing claims with
the estate.
Here, it is undisputed that Pribil did neither. Pribil did not
file a written statement of his claim with the clerk of the court,
nor did he commence a court proceeding against Kilzer, the
copersonal representative of Lakin’s estate.
25
See, In re Estate of Skade, supra note 21; Phifer, supra note 21.
26
See In re Estate of Baker, supra note 21.
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Cite as 310 Neb. 271Despite this record, appellees contend that on April 26,
2016, approximately 29 days after Lakin’s death, Pribil dis-
cussed the note with Kilzer and with an attorney hired to
represent the copersonal representatives. The next day, Pribil
emailed a copy of the note, a letter, and his calculation of inter-
est to the attorney and Kilzer. Appellees argue that the same
should constitute notice of the claim.
[23] This court has held, however, that mere notice to a
representative of an estate regarding a possible demand or
claim against the estate does not constitute presenting or fil-
ing a claim under the statute. 27 In J.R. Simplot Co. v. Jelinek, 28
a company provided crop services to the decedent’s estate.
When payments for the services were not made, the company
filed a “‘Demand for Notice’” with the county court and then
filed an action against the estate’s personal representative. 29
The demand for notice simply stated that the company had a
financial interest in the estate and held an outstanding claim,
but failed to include either a basis for the claim or the amount
due. 30 In determining whether the company’s demand for
notice operated as a timely claim under § 30-2486, we looked
to our past decision in In re Estate of Feuerhelm. 31 In doing so,
we explained that the claim in In re Estate of Feuerhelm was
deficient, in part, because “‘[a]lthough the language of [the]
claim did alert the personal representative to the possibility
of a claim by the trust, [the] claim did not contain a demand
. . . upon the estate for satisfaction of any obligation. . . .’” 32
We also explained that if notice were accorded the stature
27
J.R. Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (2008); In re
Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983).
28
J.R. Simplot Co., supra note 27.
29
Id. at 556, 748 N.W.2d at 25.
30
Id.31
In re Estate of Feuerhelm, supra note 27.
32
J.R. Simplot Co., supra note 27, 275 Neb. at 557, 748 N.W.2d at 25.
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Cite as 310 Neb. 271of a claim, the resultant state of flux and uncertainty would
frustrate and avoid the purpose and objectives of the non-
claim statute. 33
Here, Pribil merely gave notice of the claim to Kilzer, but
did so in a manner that failed to comply with the plain lan-
guage of § 30-2486(2). Thus, we find no reason why Pribil’s
letter or notice of his claim to Kilzer should be considered suf-
ficient to constitute a proper demand or presentation of a claim
under § 30-2486. As such, we conclude that Pribil failed to
properly file or present a claim against Lakin’s estate.
(c) Failure to File Claim
[24] Neb. Rev. Stat. § 30-2485 (Reissue 2016) sets forth the
limitations on presentation of claims and provides as follows:
(a) All claims against a decedent’s estate which arose
before the death of the decedent, including claims of
the state and any subdivision thereof, whether due or to
become due, absolute or contingent, liquidated or unliq-
uidated, founded on contract, tort, or other legal basis,
if not barred earlier by other statute of limitations, are
barred against the estate, the personal representative, and
the heirs and devisees of the decedent, unless presented
as follows:
Within two months after the date of the first publica-
tion of notice to creditors if notice is given in compliance
with sections 25-520.01 and 30-2483, except that claims
barred by the nonclaim statute at the decedent’s domicile
before the first publication for claims in this state are also
barred in this state. If any creditor has a claim against
a decedent’s estate which arose before the death of the
decedent and which was not presented within the time
allowed by this subdivision, including any creditor who
did not receive notice, such creditor may apply to the
33
J.R. Simplot Co., supra note 27.
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Cite as 310 Neb. 271court within sixty days after the expiration date provided
in this subdivision for additional time and the court, upon
good cause shown, may allow further time not to exceed
thirty days;
(2) Within three years after the decedent’s death if
notice to creditors has not been given in compliance with
sections 25-520.01 and 30-2483.
(b) All claims . . . against a decedent’s estate which
arise at or after the death of the decedent . . . are barred
. . . unless presented as follows:
....
(2) Any . . . claim [other than one based on a contract
with the personal representative], within four months after
it arises.
[25-27] The purpose of § 30-2485 is to facilitate and expe-
dite proceedings for distribution of a decedent’s estate, includ-
ing an early appraisal of the respective rights of interested
persons and the prompt settlement of demands against the
estate. 34 As a result of the nonclaim statute, the probate court or
the personal representative can readily ascertain the nature and
extent of the decedent’s debts, determine whether any sale of
property is necessary to satisfy a decedent’s debts, and project
a probable time at which the decedent’s estate will be ready for
distribution. 35 If presentation of a claim against a decedent’s
estate is required, a claim that is not duly and timely presented
generally is barred, unless the delay is excused or relief is
granted, and a claim that is not duly presented does not consti-
tute a charge against, or a lien on, the estate. 36
34
In re Estate of Feuerhelm, supra note 27.
35
Id. See Neb. Rev. Stat. ch. 30, art. 24, part 8 (Reissue 1979) (statutory
general comment).
36
34 C.J.S. Executors and Administrators § 545 (2009). See, In re Estate of
Giventer, ante p. 39, 964 N.W.2d 234 (2021); In re Estate of Masopust,
232 Neb. 936, 443 N.W.2d 274 (1989); J. J. Schaefer Livestock Hauling v.
Gretna St. Bank, 229 Neb. 580, 428 N.W.2d 185 (1988).
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Cite as 310 Neb. 271As early as Estate of Fitzgerald v. First Nat. Bank of
Chariton, 37 this court held: “An administrator [cannot] waive
the defense of non-claim to the prejudice of his estate, either
by agreement with the claimant or by neglecting to plead such
defense.” In In re Estate of Golden, 38 we reaffirmed that con-
clusion and, citing authorities, said:
Claims not filed within the time limited by the county
court, after due notice, are forever barred. . . . Time and
notice given by the county court were in strict compliance
with the statutes. The statute of nonclaim as a bar is more
rigorously applied than the general statute of limitations. .
. . In Nebraska an administrator cannot waive the defense
of nonclaim to the prejudice of the estate.
As a result of our conclusion that Pribil was required to file
a claim, but failed to do so, the amount owed Pribil under the
note was barred against the estate, the personal representatives,
and Lakin’s heirs and devisees. Therefore, there is merit to
the foundation’s contention that the county court should have
found that Pribil was required to file a claim with the estate.
Accordingly, the county county’s determination on that issue is
hereby reversed.
6. Breach of Fiduciary Duty
In granting appellees summary judgment, the court noted
that the question before it was whether the payment constituted
“a breach of fiduciary duty by the personal representatives
and trustees.” Relying upon § 30-2476(21), the court found
that the foundation had failed to prove its claims against the
copersonal representatives, because Pribil and Kilzer showed
that they paid the note in a manner consistent with the advice
37
Estate of Fitzgerald v. First Nat. Bank of Chariton, 64 Neb. 260, 261, 89
N.W. 813, 813 (1902) (syllabus of the court).
38
In re Estate of Golden, 120 Neb. 226, 230, 231 N.W. 833, 836 (1930).
Accord, In re Estate of Masopust, supra note 36; Supp v. Allard, 162 Neb.
563, 76 N.W.2d 459 (1956).
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Cite as 310 Neb. 271of legal counsel and an accountant. The court then rejected the
foundation’s claim against the cotrustees, stating that appellees
“distributed the assets of the Trust in a reasonable manner as
permitted by the terms of the Trust and the directions of the
Foundation.”
The foundation argues that since appellees paid a barred
claim, the county court erred in determining appellees did not
breach their fiduciary duties as copersonal representatives and
cotrustees. The foundation contends that appellees abused their
power and took actions contrary to the foundation, as the pri-
mary trust beneficiary. In addition, the foundation calls atten-
tion to the following undisputed facts: Appellees did not notify
the foundation of the note, appellees never requested permis-
sion to pay the note, and appellees liquated trust assets in order
to fully pay the note. The foundation further argues that appel-
lees should be required to repay all sums due and owing and
that appellees should be removed and replaced.
Appellees emphasize other undisputed facts in the record.
Appellees rely on language from the note and trust to argue,
summarized, that Lakin intended to entrust the management of
his assets to Pribil, “‘a long time, trusted employee of [Lakin]
with extensive background and expertise,’” and to Kilzer,
Lakin’s grandson. Brief for appellees at 5. Further, appellees
argue that they acted in accordance with all of Lakin’s specific
instructions under the note, including to keep the payment
confidential and to execute the payment so that it was made as
a tax-free gift. Appellees contend that their actions fall within
the discretion granted to personal representatives and trustees
under Nebraska law and argue that even at the summary judg-
ment stage, they are entitled to judgment as a matter of law.
[28] This court has held that a claim for breach of fiduciary
duties is likened to professional malpractice. 39 The Court
of Appeals has determined that in order to prove a cause of
39
See Community First State Bank v. Olsen, 255 Neb. 617, 587 N.W.2d 364(1998).
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Cite as 310 Neb. 271action for breach of a fiduciary duty, the moving party must
prove the elements of negligence. 40 Therefore, in order for
the foundation to prove that it is entitled to judgment on the
breach of fiduciary duty cause of action, it must prove that
appellees owed it a fiduciary duty, that appellees breached that
duty, that their breach was the cause of the injury to it, and
that it was damaged. Whether a breach of fiduciary duty has
occurred is a question of fact. 41
Nebraska law governing personal representatives of an estate
reflects that under Neb. Rev. Stat. § 30-2464 (Reissue 2016), a
personal representative is a fiduciary, and that a fiduciary rela-
tionship exists between a personal representative and the estate
of the deceased, as well as the heirs, beneficiaries, and all
persons interested in the estate. 42 It is the personal represent­
ative’s duty to “settle and distribute the estate of the decedent
in accordance with the terms of any probated and effective will
and the Nebraska Probate Code, and as expeditiously and effi-
ciently as is consistent with the best interests of the estate.” 43 A
personal representative’s duty is to act on behalf of the estate
with the end goal of distributing and closing that estate. 44
A personal representative shall use the authority conferred
upon him or her by the Nebraska Probate Code; the terms
of the will, if any; and any order in proceedings to which
he or she is a party for the best interests of successors to the
estate. A personal representative is liable to interested persons
40
In re Louise V. Steinhoefel Trust, 22 Neb. App. 293, 854 N.W.2d 792(2014).
41
101 Am. Jur. Trials 1 (2006); 65 Am. Jur. Proof of Facts 3d 109 (2002).
See, Gillmore v. Morelli, 472 N.W.2d 738 (N.D. 1991); In re Estate of
Breeden v. Gelfond, 87 P.3d 167 (Colo. App. 2003); Union Miniere, S.A. v.
Parday Corp., 521 N.E.2d 700 (Ind. App. 1988); Musselman v. Southwinds
Realty, Inc., 146 Ariz. 173, 704 P.2d 814 (Ariz. App. 1985).
42
In re Estate of Rosso, 270 Neb. 323, 701 N.W.2d 355 (2005).
43
Id. at 331, 701 N.W.2d at 363.
44
J.R. Simplot Co., supra note 27.
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Cite as 310 Neb. 271for damage or loss resulting from breach of his or her fidu-
ciary duty. 45
It is established under Nebraska law that a trustee has
the duty to administer the trust in good faith, in accordance
with its terms and the purposes and the interests of the bene­
ficiaries, and in accordance with the Nebraska Uniform Trust
Code. 46 The Nebraska Uniform Trust Code states that trustees
owe the beneficiaries of a trust duties that include loyalty,
impartiality, prudent administration, protection of trust prop-
erty, proper recordkeeping, and informing and reporting. 47 A
violation by a trustee of a duty required by law, whether will-
ful, fraudulent, or resulting from neglect, is a breach of trust,
and the trustee is liable for any damages proximately caused
by the breach. 48
[29,30] We pause to call attention to the summary judgment
procedural posture of this case. As an appellate court, this court
is considering the county court’s summary judgment disposi-
tion of the foundation’s fiduciary duty claims. Under Nebraska
law, the party moving for summary judgment has the burden
of proving that party’s entitlement to judgment as a matter
of law. 49 On a motion for summary judgment, the question is
not how a factual issue is to be decided but whether any real
issue of material fact exists. 50 Entry of summary judgment is
appropriate only if there are no genuine issues of fact and if,
as a consequence, one party is entitled to judgment as a matter
of law. 51
45
See Neb. Rev. Stat. § 30-2473 (Reissue 2016).
46
In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807(2021); In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018).
47
Id.48
Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).
49
Bogardi v. Bogardi, 249 Neb. 154, 542 N.W.2d 417 (1996).
50
Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018); Healy v.
Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994); Schlines v. Ekberg, 172
Neb. 510, 110 N.W.2d 49 (1961).
51
Blankenship v. Omaha P. P. Dist., 195 Neb. 170, 237 N.W.2d 86 (1976).
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Cite as 310 Neb. 271[31] The summary judgment standard is not affected where
the parties file cross-motions. The fact that both parties simul-
taneously are arguing that there is no genuine dispute of fact
does not establish that a trial is unnecessary. 52 As stated by the
U.S. Court of Appeals for the Third Circuit in Rains v. Cascade
Industries, Inc., 53 if an issue of material fact exists on cross-
motions for summary judgment, “it must be disposed of by a
plenary trial and not on summary judgment.”
We have thus far held that a claim was required to be
filed with the estate in this case as a matter of law. Despite
no claim’s being filed, appellees cite to various provisions
of the Nebraska Probate Code to argue that the payment was
never­theless authorized. Appellees’ arguments here are without
merit and contrary to Nebraska law. Our conclusion that the
estate’s payment of the note was invalid creates a different
perspective from which to view the undisputed facts contained
in the summary judgment record. The often-stated rule in
Nebraska is that 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. 54
Having given full consideration to the record and the parties’
arguments, we conclude that the foundation has raised gen­
uine issues of material fact regarding its breach of fiduciary
52
10A Charles Alan Wright et al., Federal Practice and Procedure § 2720
(4th ed. 2016), citing F. H. McGraw & Co. v. New England Foundation
Co., 210 F.2d 62 (1st Cir. 1954); Home Ins. Co. v. Aetna Cas. & Sur. Co.,
528 F.2d 1388 (2d Cir. 1976); Levine v. Fairleigh Dickinson University,
646 F.2d 825 (3d Cir. 1981); Podberesky v. Kirwan, 38 F.3d 147 (4th Cir.
1994); Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387(5th Cir. 1980); and B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587(6th Cir. 2001).
53
Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968).
Accord Peterson v. Homesite Indemnity Co., 287 Neb. 48, 840 N.W.2d 885(2013).
54
Sundermann, supra note 1.
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271claims against appellees. Summary judgment should not have
been granted. 55 The judgment of the trial court is reversed
and the cause is remanded for further proceedings according
to law.
7. § 6-1437
The foundation argues, pursuant to § 6-1437 of the Supreme
Court rules, that Pribil breached his duties as a copersonal rep-
resentative, because he failed to obtain court permission prior
to paying himself in excess of $250. However, we conclude
that a dispute of material fact exists on this issue as well. Our
record is not clear on the source of the payment, who made the
payment, and in what capacity. While the record does contain
Pribil’s deposition testimony on this issue, the check is not in
our record. Resolution of this issue must be remanded to the
trial court.
8. Judicial Admission
Because the issue will likely recur on remand, we address
whether Pribil made a judicial admission in his application for
informal probate. An appellate court may, at its discretion, dis-
cuss issues unnecessary to the disposition of an appeal where
those issues are likely to recur during further proceedings. 56
The foundation argues that Pribil made a judicial admission
concerning his status as a creditor when he filed his applica-
tion for informal probate of the will and informal appointment
of a personal representative. Specifically, the foundation relies
on paragraph 8, which indicates that “the nominated personal
representative is neither indebted to the estate nor a creditor of
the estate.”
55
See, e.g., Valentine Production Credit Assn. v. Spencer Foods, Inc., 196
Neb. 119, 241 N.W.2d 541 (1976); Youngs v. Wagner, 172 Neb. 735, 111
N.W.2d 629 (1961); Ingersoll v. Montgomery Ward & Co., Inc., 171 Neb.
297, 106 N.W.2d 197 (1960).
56
Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d
178 (2012).
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IN RE ESTATE OF LAKIN
Cite as 310 Neb. 271[32-34] A judicial admission, as a formal act done in the
course of judicial proceedings, is a substitute for evidence and
thereby waives and dispenses with the production of evidence
by conceding for the purpose of litigation that the proposition
of fact alleged by an opponent is true. 57 Judicial admissions
must be deliberate, clear, and unequivocal, and they do not
extend beyond the intent of the admission as disclosed by its
context. 58 Formal acts that may operate as judicial admissions
include statements made in pleadings. 59
Contrary to the foundation’s argument, the record indicates
that at the time Pribil executed the application for informal
probate, he did not believe himself to be a creditor, as he con-
sidered the amount owed to him ordinary wages which could
be paid as an ongoing business expense. Any such admis-
sion of Pribil was not deliberate, clear, and unequivocal. This
assignment of error is without merit.
V. CONCLUSION
The county court erred in determining that Pribil’s failure
to file a claim with the estate did not bar the claim. Disputed
issues of material fact remain regarding the foundation’s fidu-
ciary duty claims. As a result, the court erred in granting
appellees’ motions for summary judgment. This matter must
be and is remanded to the county court for further proceedings
consist­ent with this opinion.
Reversed and remanded for
further proceedings.
Miller-Lerman and Papik, JJ., not participating.
57
State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
58
Id.59
Id.