Loop v. Mueller ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/02/2021 08:08 AM CDT
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LOOP v. MUELLER
Cite as 30 Neb. App. 300Margo 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
Cite as 30 Neb. App. 300involving 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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Cite as 30 Neb. App. 300BACKGROUND
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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Cite as 30 Neb. App. 300Cheryl 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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Cite as 30 Neb. App. 300be 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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LOOP v. MUELLER
Cite as 30 Neb. App. 300terms 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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Cite as 30 Neb. App. 300had 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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Cite as 30 Neb. App. 300she 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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LOOP v. MUELLER
Cite as 30 Neb. App. 300limitations 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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Cite as 30 Neb. App. 300within 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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Cite as 30 Neb. App. 300after 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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Cite as 30 Neb. App. 300purpose 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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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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Cite as 30 Neb. App. 300Cheryl 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
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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.