Sparks v. Mach , 31 Neb. Ct. App. 461 ( 2022 )

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SPARKS V. MACH
Cite as 31 Neb. App. 461Kayleen Sparks, appellant, v. David Mach,
Special Administrator of the Estate
of Leo Mach, deceased, appellee.
___ N.W.2d ___
Filed November 15, 2022. No. A-21-1041.
1. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusion.
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 the facts and
that the moving party is entitled to judgment as a matter of law.
3. ____: ____. In reviewing the grant of a motion for summary judgment,
an appellate court views the evidence in the light most favorable to the
party against whom the judgment was granted, giving that party the
benefit of all reasonable inferences deducible from the evidence.
4. Decedents’ Estates: Statutes. The Nebraska Probate Code provides the
procedure for bringing a claim against a decedent’s estate.
5. Decedents’ Estates: Claims. Under Neb. Rev. Stat. § 30-2404 (Reissue
2016), a claim against a decedent’s estate cannot be commenced before
the county court has appointed a personal representative.
6. 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.
7. Decedents’ Estates: Executors and Administrators: Statutes. Because
a personal representative is not a natural person, but, rather, an entity
created by statute through a court order of appointment, when an estate
is closed and the personal representative discharged, there is no viable
entity or person to sue.
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SPARKS V. MACH
Cite as 31 Neb. App. 4618. Limitations of Actions. Under certain situations as set forth in Neb.
Rev. Stat. § 25-201.02 (Reissue 2016), an amended complaint may
relate back to the commencement date of an earlier complaint.
Appeal from the District Court for Douglas County: Todd
O. Engleman, Judge. Affirmed.
William J. Pfeffer, of Pfeffer Law Offices, for appellant.
Kyle Wallor, of Lamson, Dugan & Murray, L.L.P., for
appellee.
Moore, Riedmann, and Welch, Judges.
Moore, Judge.
INTRODUCTION
Kayleen Sparks filed this negligence action against David
Mach, as special administrator of the estate of the decedent,
Leo Mach (Mach). At the time of Sparks’ original complaint,
Mach’s estate was closed and David had been discharged as
special administrator. Sparks’ motion to reopen the estate and
reappoint David was granted, and she subsequently filed an
amended complaint, which she sought to relate back to her
original pleadings. The district court found Sparks’ complaint
to be a legal nullity and granted David’s motion for summary
judgment. We affirm.
STATEMENT OF FACTS
Sparks and Mach were involved in a motor vehicle accident
in Douglas County, Nebraska, on March 3, 2017. Mach died
on September 6, apparently of causes unrelated to the accident
with Sparks.
Mach’s death prompted the opening of his estate. On
November 20, 2018, Mach’s son, David, was appointed special
administrator of the estate. The estate was closed on December
11, 2019, and David was discharged as special administrator.
On February 24, 2021, Sparks filed a complaint against
“DAVID MACH, Special Administrator for THE ESTATE OF
LEO MACH,” which alleged Mach’s negligence in the March
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SPARKS V. MACH
Cite as 31 Neb. App. 4613, 2017, accident. Upon learning that the estate had previously
closed, Sparks filed a motion on March 4, 2021, in Douglas
County Court to reopen the estate and reappoint David as spe-
cial administrator. The motion was granted the following day.
David was served with the original complaint on March 8.
On April 7, 2021, David filed a motion to dismiss, alleging
a lack of jurisdiction, insufficiency of process, and a failure by
Sparks to state a claim upon which relief could be granted.
Sparks filed an amended complaint on April 21, 2021. The
amended complaint added the assertion that although David
had been discharged as special administrator in December
2019, Mach’s estate had been reopened and David reappointed
as special administrator on March 5. The amended complaint
was again filed against David as the special administrator of
Mach’s estate. On April 23, Sparks filed a motion requesting
leave to again amend her complaint. David was served with the
amended complaint the same day.
A hearing on David’s motion to dismiss was held on May
14, 2021. Both parties agreed that David was not the special
administrator of Mach’s estate at the time Sparks filed her
original negligence complaint. However, Sparks argued that
because David was reappointed as special administrator of
Mach’s reopened estate between the filing and service of the
original complaint, and because Sparks’ amended complaint
related back to her original complaint, any alleged defect in
the original complaint was cured. David argued that based
on Nebraska case law, an estate must first be opened and a
personal representative or special administrator appointed in
order for there to be an entity to sue. Because David had been
discharged as the special administrator from Mach’s closed
estate at the time Sparks filed her original complaint, David
argued that the suit was a legal nullity and could not be related
back to the original complaint. The court took the matter
under advisement.
In a detailed order entered on May 27, 2021, the district
court denied David’s motion to dismiss. The court first noted
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SPARKS V. MACH
Cite as 31 Neb. App. 461that, because David had been reappointed as special adminis-
trator and was served by certified mail on March 8, the allega-
tions in his motion to dismiss related to jurisdiction and service
failed. Turning to David’s allegation that Sparks had failed to
state a claim upon which relief could be granted, the court
observed that Nebraska appellate courts have not previously
addressed whether a plaintiff may cure an improperly filed
claim against a former special administrator of a closed estate
or whether such a filing is a legal nullity and thus incurable.
The court distinguished the facts of the present case with those
cited by David. Because the court found the case involved
a novel question of law, it declined to decide it on a motion
to dismiss.
The court also granted Sparks’ motion for leave to amend
and assumed, without deciding, that Sparks’ amended com-
plaint stated a claim for relief.
On June 1, 2021, Sparks filed a second amended complaint.
The second amended complaint added a paragraph related to
Sparks’ age and life expectancy. David was served with the
second amended complaint on June 3.
On July 2, 2021, David filed an answer to Sparks’ second
amended complaint and a motion for summary judgment. In
his answer, David noted that he was not reappointed as special
administrator, and Mach’s estate not reopened, until March
5—2 days after the statute of limitations for negligence had
run. On July 15, Sparks filed responses to David’s affirmative
defenses and motion for summary judgment.
A hearing was held on David’s motion for summary judg-
ment on August 3, 2021. A bill of exceptions from this hear-
ing is not included in our record. In an order entered on
September 16, the district court granted David’s motion for
summary judgment and dismissed Spark’s complaint with
prejudice. Specifically, the court found that Spark’s origi-
nal complaint was an attempt to assert a claim against a
closed estate and its discharged representative, and thus was
a legal nullity. The court determined that neither the amended
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Cite as 31 Neb. App. 461complaint nor the second amended complaint related back to
the original complaint to cure the alleged defects because the
original complaint was a nullity. The court further found that
because Sparks failed to properly commence her claim against
David as the special administrator of Mach’s estate, she there-
fore failed to comply with the applicable 4-year statute of
limitations, which ran on March 3.
On September 24, 2021, Sparks filed a motion to reconsider
and vacate. While that motion was pending, Sparks appealed
the district court’s grant of summary judgment to this court.
On October 25, we dismissed Sparks’ appeal in case No.
A-21-828 for lack of jurisdiction. On December 9, the district
court entered an order denying Sparks’ motion to reconsider
and vacate.
Sparks appeals.
ASSIGNMENTS OF ERROR
Sparks assigns, reordered, that the district court erred in (1)
finding that Sparks’ original complaint was a legal nullity, (2)
finding that Sparks’ amended complaint did not relate back
to the original complaint, and (3) granting Mach’s motion for
summary judgment.
STANDARD OF REVIEW
[1] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusion. Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174(2022).
[2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Id.[3] In reviewing the grant of a motion for summary judg-
ment, an appellate court views the evidence in the light
most favorable to the party against whom the judgment was
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Cite as 31 Neb. App. 461granted, giving that party the benefit of all reasonable infer-
ences deducible from the evidence. Id.ANALYSIS
The pertinent facts are undisputed, and we see this appeal as
purely a question of law.
Legal Nullity.
Sparks alleges that the district court erred in finding her
original complaint to be a legal nullity. She asserts that her
corrective actions, namely moving to reopen Mach’s estate and
reappoint David, are specifically addressed in Nebraska case
law, but were ignored by the court.
[4-6] The Nebraska Probate Code provides the procedure
for bringing a claim against a decedent’s estate. Babbitt v.
Hronik, 261 Neb. 513, 623 N.W.2d 700 (2001). Neb. Rev.
Stat. § 30-2404 (Reissue 2016) states in part that “[n]o pro-
ceeding to enforce a claim against the estate of a decedent
or his successors may be revived or commenced before the
appointment of a personal representative.” An action is com-
menced on the date the complaint is filed with the court. Neb.
Rev. Stat. § 25-217 (Cum. Supp. 2020). Statutory language is
to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the mean-
ing of statutory words which are plain, direct, and unam-
biguous. In re Estate of Severson, 310 Neb. 982, 970 N.W.2d
94 (2022).
[7] Nebraska appellate courts have long held that a per-
sonal representative is not a natural person, but, rather, an
entity created by statute through a court order of appoint-
ment. See Pilger v. State, 120 Neb. 584, 585, 234 N.W. 403,
404 (1931) (“[e]xecutors and administrators in Nebraska are
creatures of statute”). Thus, when an estate is closed and the
personal representative discharged, there is no viable entity
or person to sue. See, Correa v. Estate of Hascall, 288 Neb.
662, 850 N.W.2d 770 (2014); Estate of Hansen v. Bergmeier,
20 Neb. App. 458, 825 N.W.2d 224 (2013). We turn to the
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Cite as 31 Neb. App. 461Nebraska appellate cases which discuss suits initiated against
closed estates.
Neb. Rev. Stat. § 30-2457 (Reissue 2016) permits a special
administrator to be appointed after notice when a personal
representative cannot or should not act and also permits the
appointment of a special administrator without notice when an
emergency exists. A special administrator appointed by order
of the court in any formal proceeding has the power of a per-
sonal representative except as limited in the appointment and
duties as prescribed in the order. Neb. Rev. Stat. § 30-2460(Reissue 2016). In 2018, the county court appointed David as
special administrator of Mach’s estate for the purpose of exe-
cuting “any and all documents” and assisting creditors in their
claims against Mach’s estate “with the power of a Personal
Representative.” Thus, we find that the case law describing
the personal representative’s role in managing a claim against
a decedent’s estate to be applicable to David’s role as spe-
cial administrator.
Babbitt v. Hronik, 261 Neb. 515, 623 N.W.2d 700 (2001),
involved a suit by Barbara A. Babbitt against Blanche M.
Hronik for damages caused by a motor vehicle accident. The
action was filed after Hronik was deceased, her estate had been
closed, and her personal representative discharged. At Babbitt’s
request, the personal representative was reappointed for the
sole purpose of being served with process. The personal repre-
sentative was then served with the suit, which named Hronik
personally. The personal representative moved for summary
judgment. The district court granted summary judgment and
determined that the cause of action had not been properly com-
menced, because Babbitt had failed to file a petition against the
personal representative.
On appeal, Babbitt argued that she was unaware Hronik
was deceased until after she had filed her petition and the
summons was returned unserved. Once she received this infor-
mation, however, she complied with the correct statutory pro-
cedures for bringing a claim against a decedent. The Nebraska
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Cite as 31 Neb. App. 461Supreme Court found that Babbitt’s claim against Hronik’s
estate could not have commenced before the county court
reappointed the personal representative. Id. Further, because
Babbitt’s suit was directed against Hronik individually, rather
than against the personal representative acting in her repre­
sentative capacity, the action was a nullity. See id.In Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 825
N.W.2d 224 (2013), a claimant filed a negligence action related
to a motor vehicle accident against a discharged personal rep-
resentative of a closed estate. In his answer to the complaint,
the former personal representative alleged that the claimant
had failed to state a claim upon which relief could be granted
and filed a motion for summary judgment. The district court
granted summary judgment, finding that an action could not
be initiated against a former personal representative while the
estate remained closed.
This court affirmed the district court’s grant of summary
judgment. We reasoned that
a personal representative is not a natural person, but,
rather, an entity created by statute through a court order
of appointment. . . . Thus, it naturally follows that when
the estate is closed and the personal representative is
discharged, there is no viable entity or person to sue,
because the tort-feasor is deceased, his or her estate is
closed, and there is no longer a personal representative.
Id. at 466, 825 N.W.2d at 231. We further found that the
attempt to assert a claim against a closed estate and its dis-
charged representative constituted a legal nullity. Estate of
Hansen v. Bergmeier, supra.
Correa v. Estate of Hascall, 288 Neb. 662, 850 N.W.2d
770 (2014), involved a negligence action arising out of a
motor vehicle accident, filed against the estate and the estate’s
personal representative. Prior to Gloria Correa’s filing her
action, E. Dean Hascall’s estate had been closed and the per-
sonal representative discharged. Several months into the suit,
the estate and its former personal representative moved for
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Cite as 31 Neb. App. 461summary judgment and Correa filed a motion for an emer-
gency order to reopen the estate, which was granted by the
probate court. The district court granted the estate’s motion
for summary judgment.
The Supreme Court, citing our reasoning in Estate of
Hansen v. Bergmeier, supra, affirmed the district court’s grant
of summary judgment and found that Correa had failed to
properly commence her suit against the estate or the personal
repre­sentative, because the estate had been closed and the
personal representative had been discharged. Correa v. Estate
of Hascall, supra. Although Correa argued on appeal that her
motion to reopen the estate related back to her original neg-
ligence action, the Supreme Court noted that Correa’s suit
had been dismissed by operation of law because the newly
appointed personal representative was not served within 6
months after the suit’s filing. Id.
Sparks points to Mach v. Schmer, 4 Neb. App. 819, 550
N.W.2d 385 (1996), in which a claimant filed an action against
a former personal representative for injuries sustained in a
motor vehicle accident. In that case, this court held that the
former personal representative was entitled to summary judg-
ment because she had been discharged and the estate remained
closed. See Mach v. Schmer, supra. Sparks argues that the
present case is distinguishable, because the claimant had not
at any time moved to reopen the estate and have the personal
representative reappointed. Id. We disagree that such distinc-
tion changes the outcome here.
We find that the plain and ordinary meaning of § 30-2404
prohibits the commencement of a claim against an estate prior
to the appointment of a special administrator. In this case,
Sparks’ original complaint failed to comply with § 30-2404,
because it was filed against David as special administrator
of Mach’s estate on February 24, 2021. On that date, David
had been discharged as special administrator and was not
reappointed until March 5. Although Sparks argues that she
“quickly rectified the fact that the estate had been closed,”
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Cite as 31 Neb. App. 461brief for appellant at 17, the fact remains that there was no
estate open or special administrator appointed at the time
the complaint was filed. Nor are we persuaded by the fact
that David was served with the original complaint after he
was reappointed as special administrator. The controlling fact
remains that Sparks filed her original complaint, and thus com-
menced a proceeding to enforce a claim against Mach’s estate,
before the estate was reopened and David was reappointed.
Sparks’ actions to rectify the situation occurred after the statute
of limitations had run.
Sparks’ attempt to assert a claim against a closed estate and
its discharged special administrator was a nullity. See Estate
of Hansen v. Bergmeier, 20 Neb. App. 458, 825 N.W.2d 224(2013). This assignment of error fails.
Relation-Back Doctrine.
Next, Sparks asserts that the district court erred in finding
that the relation-back doctrine did not apply. She argues that
her amended pleadings comply with the relevant statutory
language because she did not change the name of the party
against whom her original claim was asserted, nor the sub-
stance of the claim. Further, the claim asserted in all of Sparks’
pleadings was related to the same motor vehicle accident in
March 2017. Sparks contends that because she obtained an
order ­reappointing David special administrator before filing
her amended complaint, the relation-back doctrine applies and
allows her original complaint to reach Mach’s estate.
[9] Sparks is generally correct that her pleadings com-
ply with the relation-back doctrine found in Neb. Rev. Stat.
§ 25-201.02(1) (Reissue 2016). Under certain situations as
set forth in § 25-201.02, an amended complaint may relate
back to the commencement date of an earlier complaint.
Correa v. Estate of Hascall, 288 Neb. 662, 850 N.W.2d 770(2014). However, the Nebraska Supreme Court has held that
an amended complaint does not relate back to the original
complaint under § 25-201.02 when the original complaint was
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Cite as 31 Neb. App. 461a nullity. See, Kelly v. Saint Francis Med. Ctr., 295 Neb. 650,
889 N.W.2d 613 (2017); Reid v. Evans, 273 Neb. 714, 733
N.W.2d 186 (2007).
In Reid v. Evans, supra, Monica Reid filed a negligence
action related to a motor vehicle accident against Donald
Evans, who had died prior to the filing. A copy of the com-
plaint naming Evans as the sole defendant was served on
the personal representative of Evans’ estate. The personal
representative filed a motion to dismiss, and Reid sought to
amend her complaint to add the personal representative under
the relation-back doctrine. The county court determined that
because Reid’s complaint naming Evans as the sole defend­
ant had not been served on the only-named party defendant
within the 6-month service of process period, Reid’s action
stood dismissed by operation of law. The county court also
denied relief to Reid on her motion to amend. On appeal, the
Supreme Court agreed that Reid’s complaint was properly
dismissed by operation of law and that once the case stood
dismissed, Reid’s subsequent motion to amend and relate back
was a nullity. As recognized in a concurrence, there must
be an action pending at the time in order for § 25-201.02 to
allow relation back. Reis v. Evans, supra (Miller-Lerman, J.,
concurring).
Kelly v. Saint Francis Med. Ctr., supra, involved a pro se
wrongful death action against a medical center, among other
defendants. Ann Kelly later filed, through counsel, a motion
for leave to file an amended complaint. The district court
concluded that an amended complaint could not relate back
to the date of the original filing and dismissed the action as
untimely.
On appeal, the Supreme Court found Kelly’s complaint
to be a legal nullity because Kelly was a nonattorney at the
time she filed her original complaint. Id. Relying on Reid v.
Evans, supra, the Supreme Court observed that the relation-
back doctrine was inapplicable when the original complaint is
a nullity. The court concluded that “a nonexistent complaint
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Cite as 31 Neb. App. 461. . . cannot be corrected.” Kelly v. Saint Francis Med. Ctr.,
295 Neb. at 666, 889 N.W.2d at 624.
Based upon the foregoing authority, we conclude that
§ 25-201.02 does not allow for relation back to cure the defect
which rendered the original complaint in this action a legal
nullity. See Kelly v. Saint Francis Med. Ctr., supra. Because
Mach’s estate was closed and the special administrator dis-
charged, there was no action pending at the time of Sparks’
original complaint and nothing for the amended complaint to
relate back to. This assignment of error fails.
Summary Judgment.
Finally, Sparks asserts that the district court erred in grant-
ing David’s motion for summary judgment.
We determined above that Sparks’ original complaint was
a nullity and that the relation-back doctrine did not apply to
Sparks’ amended complaint. Thus, there is no genuine issue
as to any material facts and David is entitled to judgment as a
matter of law. See Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d
174 (2022).
CONCLUSION
Because the estate was not reopened and David was not
reappointed as special administrator prior to Sparks’ filing
her original complaint, the complaint was a legal nullity. The
relation-back doctrine did not apply, and Sparks’ amended
complaint did not cure defects which rendered the original
complaint a nullity. Thus, no genuine issue of material fact
existed and David’s motion for summary judgment was prop-
erly granted by the district court.
Affirmed.