Loop v. Mueller , 30 Neb. Ct. App. 300 ( 2021 )


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    10/26/2021 08:08 AM CDT
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    Nebraska Court of Appeals Advance Sheets
    30 Nebraska Appellate Reports
    LOOP v. MUELLER
    Cite as 
    30 Neb. App. 300
    Margo Loop, as Guardian and Conservator of Lorine
    H. Mueller, appellee, v. Cheryl Mueller, appellant,
    Margo Loop, individually, intervenor-appellee,
    and Gary Mueller and Ryan G. Tessendorf,
    Personal Representative of the
    Estate of Lorine H. Mueller,
    deceased, appellees.
    ___ N.W.2d ___
    Filed October 26, 2021.   No. A-20-840.
    1. Summary Judgment. Summary judgment is proper when the plead-
    ings and the evidence admitted at the hearing disclose that there is no
    genuine issue as to any material fact 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. An appellate court will affirm
    a lower court’s grant of summary judgment if the pleadings and admit-
    ted 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.
    3. Motions to Vacate: Appeal and Error. In reviewing a trial court’s
    action in vacating, or refusing to vacate, a judgment or order, an appel-
    late court will uphold and affirm the trial court’s action in the absence
    of an abuse of discretion.
    4. Courts: Judgments: Time. After the final adjournment of the term of
    court at which a judgment has been rendered, the court has no authority
    or power to vacate or modify the judgment except for the reasons stated
    in 
    Neb. Rev. Stat. § 25-2001
     (Reissue 2016) and within the time limits
    specified by 
    Neb. Rev. Stat. § 25-2008
     (Reissue 2016).
    5. Courts: Judgments: Fraud: Time. Notwithstanding the 2-year time
    limitation prescribed by 
    Neb. Rev. Stat. § 25-2008
     (Reissue 2016),
    the Nebraska Supreme Court has adopted a discovery rule for cases
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    LOOP v. MUELLER
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    involving a claim of a fraudulently obtained judgment. Such discovery
    rule provides that when the fraud has not been discovered, or in the
    exercise of reasonable diligence could not have been discovered, during
    the 2 years immediately following the fraudulently obtained judgment,
    an exception to the strict application of the 2-year time limitation pre-
    scribed by § 25-2008 exists.
    Appeal from the District Court for Platte County: Robert R.
    Steinke, Judge. Affirmed.
    Clark J. Grant, of Grant & Grant, for appellant.
    Neal J. Valorz, of Sipple, Hansen, Emerson, Schumacher,
    Klutman & Valorz, for appellee Margo Loop.
    Ryan G. Tessendorf, pro se.
    Riedmann and Arterburn, Judges.
    Arterburn, Judge.
    INTRODUCTION
    In January 2016, Cheryl Mueller filed a confession of judg-
    ment in an action brought against her by Margo Loop (Margo),
    who was acting in her capacity as guardian and conservator
    for Lorine H. Mueller. The confession of judgment resulted
    in a judgment being entered against Cheryl in the amount of
    $340,846.52. More than 31⁄2 years later, Cheryl filed a com-
    plaint seeking to vacate the judgment that had been entered
    against her. In response to the complaint, Margo filed a motion
    for summary judgment. The district court granted Margo’s
    motion for summary judgment, finding that Cheryl’s complaint
    to vacate was “time-barred as a matter of law.” Cheryl appeals
    from the district court’s decision, challenging the court’s deter-
    mination that her complaint was barred by the relevant statute
    of limitations. For the reasons set forth herein, we affirm the
    decision of the district court to grant Margo’s motion for sum-
    mary judgment and to dismiss Cheryl’s complaint to vacate.
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    LOOP v. MUELLER
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    BACKGROUND
    In 2015, Margo was acting as the guardian and conservator
    for her mother, Lorine. In her capacity as Lorine’s guardian
    and conservator, Margo initiated an action against Cheryl, the
    widow of one of Lorine’s two sons (2015 district court pro-
    ceedings). The action alleged, among other claims, that Cheryl
    had breached her fiduciary duties and had committed acts of
    fraud, unjust enrichment, negligence, and conversion.
    On January 8, 2016, Margo and Cheryl jointly filed a con-
    fession of judgment in the 2015 district court proceedings.
    The confession of judgment provided that Cheryl “understands
    and confesses that Judgment should be and hereby is entered
    in favor of [Margo] against [Cheryl] in the amount of Three
    Hundred Forty Thousand, Eight Hundred Forty-Six and 52/100
    Dollars ($340,846.52).” That same day, Margo and Cheryl
    also jointly filed a stipulation for entry of judgment. Therein,
    they agreed that pursuant to the confession of judgment, a
    judgment should be entered against Cheryl in the amount of
    $340,846.52. The district court accordingly entered such judg-
    ment against Cheryl.
    Cheryl’s decision to confess judgment was apparently the
    result of a broader settlement agreement entered into by Cheryl,
    Margo, and other related parties, which agreement resolved not
    only the 2015 district court proceedings, but also resolved
    other pending and future claims between all the parties to the
    settlement agreement. The agreement explains:
    [T]he parties, without admitting liability, fault or indebt-
    edness, successfully negotiated a resolution of all issues,
    complaints and claims, and the parties desire to formalize
    their settlement of any and all claims, known or unknown,
    that they have or may have against each other, including,
    but not limited to, any claims raised or which could have
    been raised relating to their disputes, claims, and defenses
    in the Pending Litigation.
    As is relevant to the 2015 district court proceedings, the
    settlement agreement provided as follows:
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    Cheryl shall execute the Confession of Judgment in the
    District Court Lawsuit . . . simultaneously with the execu-
    tion of this Agreement. Cheryl shall instruct her legal
    counsel to execute the Joint Stipulation for Entry of
    Judgment and the Order for Entry of Judgment . . . simul-
    taneously with the execution of this Agreement. Margo
    shall file the executed Confession of Judgment, the Joint
    Stipulation for Entry of Judgment and proposed Order for
    Entry of Judgment in the District Court Lawsuit. Each
    party shall bear her own attorney fees, expert fees and
    costs. Margo, and Lorine’s estate shall not seek to collect
    the Confession of Judgment. The Confession of Judgment
    shall not be forgiven.
    Later on in the settlement agreement, the parties, “[f]or pur-
    poses of clarification,” stated that under the terms of the
    agreement, “Margo is not waiving or relinquishing any rights
    to file a will contest action, a challenge to a personal represent­
    ative or any actions in any estate proceeding of Lorine after
    her passing.”
    Lorine died in February 2017, a little over a year after
    Cheryl agreed to confess judgment in the 2015 district court
    proceedings. At the time of her death, Lorine was a resident
    of Kansas. Shortly after Lorine’s death, Margo filed a petition
    in the district court for Sedgwick County, Kansas, to probate
    a will authored by Lorine in 1979. This will identified Margo
    and her surviving brother, Gary Mueller, as the devisees.
    One week after Margo filed her petition to probate the 1979
    will, Ryan G. Tessendorf also filed a petition to probate a will
    authored by Lorine. However, this will was authored in 2007
    and identified the devisees as Margo, Gary, and Cheryl. In fact,
    the 2007 will devised to Cheryl the majority of Lorine’s estate.
    In the 2007 will, Tessendorf was appointed by Lorine to serve
    as her personal representative.
    Ultimately, in an order dated October 10, 2019, the dis-
    trict court in Kansas determined that the 2007 will should
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    be probated. The court appointed Tessendorf as the personal
    representative.
    During the pendency of the will contest proceedings, the
    district court in Kansas appointed a special administrator for
    Lorine’s estate in order to preserve the assets of the estate and
    to pay all necessary expenses of the estate, pending the deci-
    sion regarding which will to probate. In November 2017, a few
    months after the special administrator was appointed, Margo
    filed a motion with the Kansas district court, asking that the
    special administrator be given the authority to obtain a certi-
    fied copy of the confession of judgment entered by Cheryl in
    the 2015 district court proceedings. Margo further requested
    that the special administrator register that confession of judg-
    ment in the Kansas district court “for the purpose of offset of
    the obligation due under the Confession of Judgement and, to
    the extent not otherwise satisfied, for execution against the
    assets of Cheryl.” In the motion, Margo explained her request
    as follows:
    In the event that the Court determines that Cheryl . . . is
    a beneficiary under the Estate of Lorine . . . and would
    otherwise be entitled to a distribution from the Estate,
    the amount due to the Estate under the Confession of
    Judgment should be repaid prior to [Cheryl’s] receipt
    of any distribution from the Estate. In the event Cheryl
    . . . has not satisfied the judgment or any other obliga-
    tion prior to any potential distribution from the Estate, the
    Court should order that any distribution due to Cheryl . . .
    be applied to any remaining obligation due the Estate.
    In response to Margo’s motion requesting the special
    administrator to register the confession of judgment from the
    2015 district court proceedings in the Kansas district court,
    on December 5, 2017, Cheryl filed a motion indicating that
    the confession of judgment was fraudulently obtained and
    should not be accorded “lien status” in the estate proceed-
    ings. Specifically, Cheryl asserted that Margo was attempting
    to collect the judgment from her in direct violation of the
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    terms of the settlement agreement which provided, “Margo,
    and Lorine’s estate shall not seek to collect the Confession
    of Judgment.”
    In addition to the motion filed in the Kansas district court,
    Cheryl also filed a verified motion for an ex parte order for
    enforcement of the settlement agreement in the district court
    for Platte County, Nebraska, in November 2017. Cheryl’s
    motion indicates it was filed using the same case number as
    the 2015 district court proceedings. Therein, Cheryl requested
    that the district court enforce the terms of the parties’ settle-
    ment agreement by prohibiting Margo or any other party from
    registering the confession of judgment in the Kansas probate
    proceedings. There is nothing in our record which indicates
    the district court took any action on the verified motion for an
    ex parte order.
    Cheryl filed a third motion objecting to the registration of
    the confession of judgment in the Kansas probate proceedings
    in the Kansas district court in June 2018. Essentially, Cheryl
    argued that the Kansas district court lacked the authority to
    consider the confession of judgment.
    The Kansas district court considered whether it should
    enforce the confession of judgment. At the close of a hearing
    held on March 3, 2020, related to this topic, the court stated:
    I’ll just say, I believe I have jurisdiction to enforce a
    judgment. . . .
    With that said and to that end, after considering the
    arguments of the parties, I do believe that I have authority
    to set off the amount of the confession of judgment plus
    accrued interest against [Cheryl’s] distributive share of
    the estate . . . . I’ll withhold enforcing that judgment until
    you have had an opportunity to go through the process
    up in Platte County, Nebraska, to attempt to set aside the
    judgment . . . .
    The court concluded that it would withhold ordering the
    executor to apply the equitable setoff until the Nebraska court
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    had an opportunity to determine whether the judgment should
    be set aside.
    A few months prior to that hearing in the Kansas district
    court, on November 19, 2019, in the district court for Platte
    County, Cheryl had filed a complaint to vacate the January
    2016 confession of judgment and resulting court order pursu-
    ant to 
    Neb. Rev. Stat. § 25-2001
     (Reissue 2016). The complaint
    listed the name of the case and the case number from the 2015
    district court proceedings. On November 27, Cheryl filed an
    amended complaint.
    Tessendorf filed an answer to Cheryl’s complaint. In addi-
    tion, Margo intervened in the proceedings and filed her own
    answer. In Margo’s answer, she asserted that Cheryl’s com-
    plaint was not timely filed pursuant to the statute of limita-
    tions espoused in 
    Neb. Rev. Stat. § 25-2008
     (Reissue 2016),
    which required that proceedings to vacate a judgment pursuant
    to § 25-2001(4) be commenced no later than 2 years after the
    entry of the judgment or order. Subsequently, Margo filed a
    motion for summary judgment. Margo asserted that Cheryl’s
    “Complaint and Amended Complaint should be dismissed in
    their entirety as they fail to state a claim upon which relief
    can be granted because [Cheryl] is time barred from purposing
    this action.”
    Subsequently, on June 8, 2020, Cheryl filed a second
    amended complaint, which became the operative pleading. In
    the second amended complaint, Cheryl again asked that the
    district court vacate the January 2016 confession of judgment
    and resulting court order pursuant to § 25-2001(4), as the judg-
    ment “was procured by the fraudulent representations of Margo
    . . . in representing that the Confession of Judgment would
    never be enforced.” However, in this complaint, Cheryl for the
    first time explained that it was her understanding that Margo
    agreed not to collect the judgment entered against Cheryl
    because it would, instead, be used “to offset substantial capital
    gain tax that would be incurred by Lorine . . . as a result of
    her selling appreciated farm real estate.” Cheryl indicated that
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    she learned in December 2019 that the judgment had not been
    used in this manner. Also in the second amended complaint,
    Cheryl affirmatively alleged that she did not discover sufficient
    evidence of Margo’s alleged fraud within the time allowed by
    § 25-2008 for commencing the proceeding to vacate the con-
    fession of judgment.
    On the same day that the second amended complaint was
    filed, a hearing was held on Margo’s motion for summary
    judgment. After the hearing, the district court entered an
    order granting Margo’s motion. The district court found that
    Cheryl’s complaint to vacate was filed “roughly 3 years and
    10 months after the entry of the judgment on January 8, 2016”
    and that, as a result, “it was clearly commenced outside the
    [2-year] time constraints of §25-2008.” The court further
    found that because the evidence established Cheryl “knew of,
    or in the exercise of reasonable diligence could have discov-
    ered, Margo’s alleged fraud” within 2 years after the entry
    of the January 2016 judgment, there was no valid reason to
    extend the 2-year time limitation provided by § 25-2008. The
    district court concluded:
    [H]aving determined that [Cheryl’s] complaint to vacate
    the January 8, 2016, judgment is time-barred as a mat-
    ter of law, the Court finds that the motion for summary
    judgment filed by [Margo] on March 19, 2020, shall be
    sustained. That said, [Cheryl’s] operative second amended
    complaint to vacate order for entry of judgment filed on
    June 8, 2020, is ordered dismissed with prejudice.
    Cheryl appeals from the district court’s decision to grant
    Margo’s motion for summary judgment and dismiss her com-
    plaint to vacate with prejudice.
    ASSIGNMENTS OF ERROR
    On appeal, Cheryl argues that the district court erred in
    determining that the statute of limitations bars her complaint to
    vacate the January 2016 judgment against her. She also argues
    that the district court erred in not finding that the statute of
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    limitations was tolled pending the outcome of the will contest
    proceedings in the Kansas district court.
    STANDARD OF REVIEW
    [1,2] Summary judgment is proper when the pleadings and
    the evidence admitted at the hearing disclose that there is no
    genuine issue as to any material fact 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. Meyer
    Natural Foods v. Greater Omaha Packing Co., 
    302 Neb. 509
    , 
    925 N.W.2d 39
     (2019). 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. 
    Id.
    [3] In reviewing a trial court’s action in vacating, or refusing
    to vacate, a judgment or order, an appellate court will uphold
    and affirm the trial court’s action in the absence of an abuse of
    discretion. See In re Estate of West, 
    226 Neb. 813
    , 
    415 N.W.2d 769
     (1987).
    ANALYSIS
    On appeal, Cheryl challenges the decision of the district
    court to grant Margo’s motion for summary judgment. Cheryl
    alleges that the court erred in determining that the 2-year
    statute of limitations to bring her complaint to vacate was not
    extended due to her lack of knowledge regarding the alleged
    fraud perpetrated by Margo in the execution of the settlement
    agreement and the resulting confession of judgment. Upon
    our review, we find no error in the district court’s decision to
    grant Margo’s motion for summary judgment on the basis that
    Cheryl’s complaint to vacate was not timely filed.
    [4] Our law is well settled that after the final adjournment
    of the term of court at which a judgment has been rendered,
    the court has no authority or power to vacate or modify the
    judgment except for the reasons stated in § 25-2001 and
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    within the time limits specified by § 25-2008. See Woodcock v.
    Navarrete-James, 
    26 Neb. App. 809
    , 
    923 N.W.2d 769
     (2019).
    While a court’s jurisdiction under § 25-2001 is concurrent with
    its equity jurisdiction, this does not mean a party can seek to
    set aside a judgment or order as an equitable remedy where a
    remedy exists under the statute. Rather, “a litigant seeking to
    proceed in equity must show that § 25-2001 is not applicable,
    because equitable relief does not lie where there is a remedy
    at law.” Western Fertilizer v. City of Alliance, 
    244 Neb. 95
    ,
    101, 
    504 N.W.2d 808
    , 813 (1993). See, also, Hornig v. Martel
    Lift Systems, 
    258 Neb. 764
    , 
    606 N.W.2d 764
     (2000) (affirming
    court’s exercise of equity jurisdiction to vacate judgment where
    it was clear that none of provisions in § 25-2001(4) could have
    served parties seeking to vacate judgment).
    In her complaint to vacate, Cheryl sought to vacate the
    confession of judgment and the resulting entry of judgment
    against her in the 2015 district court proceedings. Cheryl filed
    her complaint to vacate in November 2019. The judgment
    she sought to vacate was entered against her in January 2016.
    As such, her complaint to vacate was clearly filed after the
    adjournment of the term of court at which the judgment had
    been rendered. In fact, her complaint to vacate was filed almost
    4 years after the judgment had been rendered.
    Cheryl sought vacation of the judgment entered against her
    in January 2016 based on § 25-2001(4), which provides, in
    part: “A district court may vacate or modify its own judgments
    or orders after the term at which such judgments were made
    . . . (b) for fraud practiced by the successful party in obtain-
    ing the judgment or order . . . .” The fraud alleged by Cheryl
    was Margo’s agreement that she would not seek to collect on
    the judgment entered against Cheryl and Margo’s subsequent
    action to see that Cheryl’s inheritance from Lorine’s estate was
    offset by the amount of the January 2016 judgment.
    [5] Section 25-2008 requires:
    Proceedings to vacate or modify a judgment or order,
    for the causes mentioned in subsection (4) of section
    25-2001 must be commenced no later than two years
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    after the entry of the judgment or order unless the party
    entitled thereto is an infant or person of unsound mind,
    and then no later than two years after removal of such
    disability.
    However, notwithstanding the time limitation prescribed by
    § 25-2008, the Nebraska Supreme Court has adopted a discov-
    ery rule for cases involving a claim of a fraudulently obtained
    judgment. See In re Estate of West, 
    226 Neb. 813
    , 
    415 N.W.2d 769
     (1987). Such rule provides that when the fraud has not
    been discovered, or in the exercise of reasonable diligence
    could not have been discovered, during the 2 years immedi-
    ately following the fraudulently obtained judgment, an excep-
    tion to the strict application of the 2-year time limitation pre-
    scribed by § 25-2008 exists. See, In re Estate of West, supra;
    Katz v. Swanson, 
    147 Neb. 791
    , 
    24 N.W.2d 923
     (1946).
    In this case, the district court concluded that the fraud excep-
    tion to the 2-year time limitation prescribed by § 25-2008 did
    not apply because Cheryl knew, or in the exercise of reason-
    able diligence could have known, of the alleged fraud perpe-
    trated by Margo within 2 years of the entry of the January 2016
    judgment. We agree with the finding of the district court.
    Cheryl asserts that Margo committed fraud in inducing her
    to enter the confession of judgment by promising not to collect
    on the judgment in the settlement agreement, but all the while
    intending to attempt to offset the judgment against Cheryl’s
    inheritance from Lorine’s estate. In so doing, Cheryl equates
    the attempt to offset with collection. The evidence before the
    court reveals that Cheryl was made aware of Margo’s inten-
    tions to attempt to offset the judgment against Cheryl’s inherit­
    ance as early as November 2017, when Margo filed a motion
    with the Kansas district court, asking that the special admin-
    istrator of Lorine’s estate be given the authority to obtain a
    certified copy of the confession of judgment signed by Cheryl
    in the 2015 district court proceedings. In that motion, Margo
    explicitly requested that the special administrator register that
    confession of judgment in the Kansas district court “for the
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    purpose of offset of the obligation due under the Confession of
    Judgement and, to the extent not otherwise satisfied, for execu-
    tion against the assets of Cheryl.” At that point in time, Cheryl
    was very clearly put on notice of Margo’s position that seeking
    an offset was not a “collection” effort and thus not barred by
    the settlement agreement. At the summary judgment hearing,
    Cheryl’s counsel admitted that in November 2017, Cheryl “cer-
    tainly suspected some fraud.”
    By November 2017, when Margo filed this motion, Cheryl
    still had at least 2 months to file her complaint to vacate
    the January 2016 judgment pursuant to the time limitation
    in § 25-2008. However, she chose not to do so. Instead, on
    November 28, she filed a verified motion for an ex parte order
    in the Platte County District Court. In that verified motion,
    Cheryl acknowledged that Margo was attempting to offset
    from Cheryl’s inheritance the amount of the January 2016
    order. Cheryl argued that this violated the terms of the parties’
    settlement agreement. Cheryl next filed a motion in the Kansas
    district court on December 5, which motion explicitly asserted
    that Margo’s actions in attempting to register the confession of
    judgment and resulting order in the probate proceedings was
    “fraudulent.” Cheryl’s motions, both filed within the 2-year
    period after the date of the January 2016 judgment, indicate
    that Cheryl was aware of the alleged fraud by Margo. In fact,
    contrary to Cheryl’s assertions in her brief to this court, the
    substance of the motions and the affidavit attached to her
    motion filed in Kansas indicate Cheryl’s full understanding of
    the implications of Margo’s actions. In her affidavit, Cheryl
    clearly stated her belief that Margo was not honoring the settle-
    ment agreement and was in fact seeking to collect the debt by
    way of offset. Given Cheryl’s knowledge of the alleged fraud
    prior to the passage of the 2-year statute of limitations, the dis-
    trict court was correct in concluding that the fraud exception to
    the time constraints in § 25-2008 does not apply.
    To the extent that Cheryl also asserts that Margo committed
    fraud by telling Cheryl that instead of collecting the January
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    2016 judgment entered against her, Lorine was going to use the
    judgment in order to offset certain capital gains taxes, we find
    Cheryl also had notice of these facts within 2 years after the
    judgment was entered against her. In the affidavit accompany-
    ing Cheryl’s December 5, 2017, motion which was filed in the
    Kansas district court, Cheryl explains as follows:
    Margo . . . and her attorney . . . represented to me and
    my attorney . . . that the Confession of Judgment would
    benefit Lorine . . . by allowing her to take a loss deduc-
    tion on her income tax return to offset the substantial
    capital gain tax she owed that resulted from the sale of
    real estate. I would not have agreed to the Settlement
    and Mutual Release Agreement but for the fact that it
    was stipulated that the confessed judgment would never
    be collected and but for the fact that Margo . . . and her
    attorney represented to me and my attorney that it would
    assist Lorine . . . regarding her income tax obligations.
    The language in Cheryl’s affidavit again clearly indicates her
    awareness of any potential fraud being perpetrated by Margo
    as it related to the settlement agreement and the confession of
    judgment. And, while Cheryl argues that she did not defini-
    tively learn that the judgment was not used to assist Lorine in
    her income tax obligations until December 2019, which was
    after the 2-year statute of limitations for filing the complaint
    to vacate had passed, by the time of her December 5, 2017,
    affidavit, Cheryl had notice of the bottom line. Margo was
    seeking to offset the judgment against any distribution Cheryl
    may receive from Lorine’s estate, which was the ultimate
    basis for the alleged fraud. Again, given Cheryl’s knowledge
    of the alleged fraud prior to the passage of the 2-year statute
    of limitations, the district court was correct in concluding that
    the fraud exception to the time constraints in § 25-2008 does
    not apply.
    In her brief on appeal, Cheryl also asserts that the 2-year
    statute of limitations in § 25-2008 should have been tolled
    or extended during the will contest proceedings. Specifically,
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    Cheryl asserts that until the Kansas district court determined
    that the 2007 will should be probated and the Kansas appellate
    court affirmed that decision, there was no personal representa-
    tive of the estate (or executor of the estate, as it is referred to
    under Kansas law) whom she could have served with her com-
    plaint to vacate. We find Cheryl’s assertion in this regard to be
    without merit.
    In July 2017, while the will contest proceedings were pend-
    ing, the Kansas district court appointed a special administrator
    for Lorine’s estate. Kansas law allows for the appointment of
    such a special administrator:
    For good cause shown a special administrator may
    be appointed pending the appointment of an executor or
    administrator . . . . The appointment may be for a speci-
    fied time, to perform duties respecting specific property,
    or to perform particular acts. The duties of a special
    administrator shall be stated in the order of appointment.
    The special administrator may be required to give bond
    in such sum as the court shall direct. Such administra-
    tor shall make such reports as the court shall direct, and
    shall account to the court upon the termination of his or
    her authority.
    
    Kan. Stat. Ann. § 59-710
     (2005).
    In its letters of appointment, the Kansas district court
    ordered the special administrator to perform a variety of spe-
    cific duties, including paying taxes that had come due on real
    estate owed by Lorine, maintaining certain insurance policies,
    making payments for incurred debts, and collecting payment
    from existing debtors. In addition, the special administrator
    was to “[p]erform all other acts necessary to preserve the assets
    and to pay all necessary expenses of the Estate.”
    While Cheryl argues in her brief on appeal that the special
    administrator appointed during the pendency of the will con-
    test proceedings was not given the explicit authority to accept
    service of complaints or claims filed against the estate, we find
    that the general authority provided to the special administrator
    - 314 -
    Nebraska Court of Appeals Advance Sheets
    30 Nebraska Appellate Reports
    LOOP v. MUELLER
    Cite as 
    30 Neb. App. 300
    in the letters of appointment provides such authority. In the
    letters of appointment, the Kansas district court authorized
    the special administrator to perform necessary acts to preserve
    the assets of the estate. We read this language to include the
    authority to accept service of a claim made against the estate
    regarding a potential asset pending the will contest.
    Upon our review, we find that Cheryl could have filed her
    complaint to vacate and served the special administrator with
    that complaint prior to the expiration of the 2-year period of
    limitation from the date the agreed-to judgment was entered.
    Cheryl learned of Margo’s intent to offset Cheryl’s inheritance
    in November 2017 and almost immediately took action to
    oppose Margo’s actions in both Nebraska and Kansas. She had
    the ability to file and serve her complaint at that time, but did
    not do so. Her claim that she could not file her complaint to
    vacate until after an executor or personal representative was
    appointed is without merit.
    CONCLUSION
    We affirm the decision of the district court to grant Margo’s
    motion for summary judgment and to dismiss Cheryl’s com-
    plaint to vacate the January 2016 judgment entered against her.
    Cheryl’s complaint to vacate was not filed within the 2-year
    statute of limitations espoused in § 25-2008 and no exceptions
    apply to that time constraint. As such, Cheryl’s complaint is
    time barred as a matter of law.
    Affirmed.
    Bishop, Judge, participating on briefs.