Kimball v. Rosedale Ranch

- 650 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
Valkyrie Kimball and Richard Kimball II,
appellants, v. Rosedale Ranch, Inc.,
a Nebraska corporation, et al., appellees.
___ N.W.3d ___
Filed August 15, 2025. 	No. S-24-707.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
3. Jurisdiction: Standing. Because the requirement of standing is fun-
damental to a court’s exercise of subject matter jurisdiction, either a
litigant or a court can raise the question of standing at any time.
4. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, when
different state courts have concurrent original jurisdiction over the same
subject matter, basic principles of judicial administration require that
the first court to acquire jurisdiction should retain it to the exclusion of
another court.
5. ____: ____. While jurisdictional priority is not a matter of subject
matter or personal jurisdiction, courts should enforce the jurisdictional
priority doctrine to promote judicial comity and avoid the confusion and
delay of justice that would result if courts issued conflicting decisions in
the same controversy.
6. Motions to Dismiss: Pleadings. To prevail against a motion to dis-
miss for failure to state a claim, a plaintiff must allege sufficient facts,
accepted as true, to state a claim to relief that is plausible on its face.
7. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an
order dismissing a complaint, an appellate court accepts as true all facts
which are well pled and the proper and reasonable inferences of law and
fact which may be drawn therefrom, but not the plaintiff’s conclusion.
8. Motions to Dismiss: Pleadings. As a general rule, when a court grants
a motion to dismiss for failure to state a claim, a party should be given
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:56 AM CDT

- 651 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
leave to amend absent undue delay, bad faith, unfair prejudice, or
futility.
Appeal from the District Court for Lincoln County: Michael
E. Piccolo, Judge. Reversed and remanded with direction.
Daniel J. Greco, Terrance O. Waite, and Christine E. Seck,
of Waite & McWha Law Firm, for appellants.
ZitaAnne 	Reno, 	of 	Brouillette, 	Troshynski, 	Kingston
& Jackson, P.C., L.L.O., and John D. Stalnaker, of McGill,
Gotsdiner, Workman & Lepp, P.C., L.L.O., for appellees.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Papik, J.
Valkyrie Kimball and Richard Kimball II (the Kimball
children) believe that their late stepmother, Helen Kimball,
wrongfully 	transferred 	assets 	owned 	by 	their 	late 	father,
Richard Kimball, to herself. The Kimball children brought
this action in district court against the personal representative
of Helen’s estate, devisees under Helen’s will, and a corpora-
tion in which Helen had an interest, claiming that but for the
allegedly wrongful transfers, the Kimball children would have
received those assets under their father’s will. The district
court initially dismissed the action, noting that the Kimball
children had raised the identical issues in a proceeding in
county court. By the time the district court heard the Kimball
children’s motion to alter or amend its dismissal, however, the
county court had dismissed the Kimball children’s petition in
that court for lack of standing. Even so, the district court stood
by its dismissal.
The Kimball children now appeal, arguing that the district
court’s dismissal was no longer justifiable after the conclu-
sion of the county court proceeding. We agree. And although
we find that the complaint failed to state a claim upon which
relief could be granted, we find that the Kimball children

- 652 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
should be provided the opportunity to amend their complaint.
Accordingly, we reverse the dismissal and remand the cause
with direction.
BACKGROUND
Complaint of the Kimball Children.
Because this case turns on the allegations of the Kimball
children’s complaint, we begin by summarizing it in some
detail. The complaint alleged that Helen owned a ranch and
that, beginning in 1978 and for many years thereafter, the
Kimball children’s father, Richard, worked for the ranch as an
employee. Eventually, in 1998, Richard married Helen. This
was a second marriage for both Richard and Helen, and both
had children from their respective first marriages. According
to the complaint, after his marriage to Helen, Richard came to
own, “together” with Helen, a piece of real property referred to
as “the Main House.” The complaint also alleged that Richard
came to own shares of Rosedale Ranch, Inc., a Nebraska cor-
poration that owned other real property.
In 2009, Richard executed a will; at the same time, Helen
executed a mutual and reciprocal will. Richard’s will, a copy
of which was attached to the complaint as an exhibit, provided
in part:
In the event my spouse survives me, then [I devise] all
of my other property[, not including guns and firearms
specifically devised to the National Rifle Association,] to
my spouse, except any real estate that I may own in my
own name. I hereby grant a life estate to my spouse in
any real estate which I now own in my own name, and
the remainder of said real estate in equal shares to my
children [per stirpes].
Richard’s will appointed Helen as the personal representative
of his estate.
The complaint alleged that Richard was diagnosed with
dementia in 2010. A few years later, the complaint asserts,
Helen took steps to transfer Richard’s interest in the Main
House to herself. In August 2013, Richard and Helen deeded

- 653 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
their interest in the Main House to Helen by quitclaim deed.
The following month, Richard executed a durable power of
attorney naming Helen as his attorney in fact. In July 2014,
Richard and Helen filed a quitclaim deed to convey the Main
House to Helen individually, with Helen acting as Richard’s
attorney in fact. Although the complaint provided less detail
on this subject, it also indicated that Helen, acting under the
power of attorney, transferred personal property owned by
Richard to herself. The complaint also alleged that in August
2014, Helen executed a will that explicitly made no provision
for Richard.
Richard’s cognitive decline continued, and he died in 2018.
The complaint alleged that after Richard’s death, Helen told the
Kimball children that “the value of Richard’s estate was low
enough” that no probate or administration would be required.
Four years later, Helen died. The Kimball children alleged
that they were not notified of Helen’s estate administration
proceedings and that no real or personal property formerly
held by Richard was distributed to them. Instead, the com-
plaint alleged, real and personal property that had been owned
by Richard, including the Main House and shares of Rosedale
Ranch, was distributed to three children and a grandchild of
Helen. The complaint named those children and the grand-
child of Helen, one of whom was the personal representative
of Helen’s estate, as defendants, along with Rosedale Ranch
(collectively appellees).
The Kimball children alleged in their complaint that, as
devisees under Richard’s will, they had an “expectancy” in
assets he owned. They claimed that Helen had obtained title
to those assets by fraud, misrepresentation, or an abuse of an
influential or confidential relationship. The Kimball children
asserted that, under the circumstances, Helen’s children and
grandchild should not be permitted to hold property that had
been owned by Richard. Among other things, the complaint
asked that transfers of property from Richard to Helen be
declared invalid and that Helen’s children and grandchild

- 654 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
be compelled to surrender such property to the Kimball chil-
dren or make compensation therefor.
District Court Dismisses Action.
Appellees moved to dismiss the Kimball children’s com-
plaint pursuant to Neb. Ct. R. Pldg. § 6-1112(b)(1) and (6)
(codified in 2008), asserting that the Kimball children lacked
standing and failed to state a claim upon which relief could be
granted. At a hearing on the motion, the district court agreed
to take judicial notice of a pending county court proceeding
initiated by the Kimball children.
The parties submitted briefs, in which both sides represented
that Richard and Helen had owned the Main House as joint
tenants prior to the execution of quitclaim deeds purporting to
transfer Richard’s interest to Helen. In the Kimball children’s
brief, they also referred to the possibility that Richard’s will
may not have been valid and that they would have inherited
property from him under intestacy statutes. They also sug-
gested that certain securities owned by Richard may have
been designated as “TOD,” which we understand to mean that
their ownership would have automatically transferred to the
Kimball children upon Richard’s death. See, e.g., In re Trust of
Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007).
The district court entered an order dismissing the Kimball
children’s complaint without prejudice. Among other things,
its order stated that there was a petition raising nearly identi-
cal issues in county court and that it could not “entertain [the
Kimball children’s] current action until the close of the county
court case.”
District Court Overrules Motion
to Alter or Amend.
Within 10 days of the district court’s dismissal, the Kimball
children filed a motion asking the district court to reconsider
it. Although styled otherwise, because the motion was filed
within 10 days after the dismissal and sought substantive
alteration thereof, we refer to it as a motion to alter or amend.

- 655 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
See Central Neb. Pub. Power v. Jeffrey Lake Dev., 267 Neb.
997, 679 N.W.2d 235 (2004).
At a hearing on the motion to alter or amend, the district
court took judicial notice of an order that had been entered in
the county court proceeding. That county court order, entered
after the district court dismissed the Kimball children’s action,
granted a motion to dismiss the Kimball children’s petition.
The county court reasoned that in the context of Helen’s
estate, the Kimball children were not “interested persons”
under the probate code and therefore the probate code did not
provide an avenue for them to obtain the relief they sought.
See Neb. Rev. Stat. § 30-2209 (Reissue 2016) (defining “inter-
ested person”).
At the hearing, the Kimball children argued that because the
county court proceeding had been dismissed, they should be
permitted to litigate their claims in district court. The Kimball
children also made an oral request for leave to amend their
complaint to substitute Richard’s estate as a plaintiff.
Counsel for appellees offered an alternative basis for dis-
missal at the hearing. Counsel argued that because the Main
House was owned by Richard and Helen in joint tenancy, any
interest Richard held in the property would have passed to
Helen and not the Kimball children, even if the property had
remained in his name. Accordingly, counsel argued, even if
it were assumed that the transfers of property were invalid,
the Kimball children would not be entitled to the relief
they sought.
Following the hearing, the district court entered an order
overruling the Kimball children’s motion to alter or amend.
The district court did not explain its reasoning.
The Kimball children now appeal.
ASSIGNMENTS OF ERROR
On appeal, the Kimball children assign two errors. Both
challenge the district court’s reliance on the jurisdictional pri-
ority doctrine, but we address only one to resolve this appeal.

- 656 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
In that assignment, the Kimball children contend that after the
county court dismissed their petition, the jurisdictional priority
doctrine no longer applied, and that the district court erred by
not allowing them to resume their lawsuit.
STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss is reviewed
de novo. Brothers v. Kimball Cty. Hosp., 289 Neb. 879, 857
N.W.2d 789 (2015).
[2] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
independently decides. In re Estate of Hedke, 278 Neb. 727,
775 N.W.2d 13 (2009).
ANALYSIS
Standing.
[3] Before addressing the Kimball children’s assignment of
error, we consider appellees’ argument that the action should
have been dismissed under § 6-1112(b)(1) because the Kimball
children lack standing. Because the requirement of standing
is fundamental to a court’s exercise of subject matter juris-
diction, either a litigant or a court can raise the question of
standing at any time. Hawley v. Skradski, 304 Neb. 488, 935
N.W.2d 212 (2019).
Appellees take the position that under the Nebraska Probate
Code, the Kimball children, as individuals, did not have stand-
ing to prosecute their claims. They rely on authority that gen-
erally holds that under the Nebraska Probate Code, the right
and duty to sue and recover assets for an estate reside not in
the devisees, but in the estate’s appointed personal representa-
tive, or, if the personal representative cannot or should not act,
the appointed special administrator. See In re Estate of Hedke,
supra, citing Neb. Rev. Stat. §§ 30-2464(c), 30-2470, and
30-2476 (Reissue 2016). See, also, Neb. Rev. Stat. §§ 25-301
and 25-304 (Reissue 2016) (every action must be prosecuted
in name of real party in interest, but “executor” or “admin-
istrator” may bring action without joining person for whose

- 657 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
benefit it is prosecuted). They argue that, under this principle,
the Kimball children cannot sue to recover assets on the theory
that those assets belonged to Richard and would have been
distributed to them as devisees if Helen had not improperly
acquired them before Richard died. 	We agree with appel-
lees that under this general principle, the Kimball children
would lack standing to pursue this action in their individual
capacities. Under this general principle, a personal representa-
tive or special administrator of Richard’s estate could seek to
recover assets that were wrongfully taken from Richard, but
the Kimball children, as mere devisees, could not. See In re
Estate of Hedke, supra.
But our analysis does not end here because a specific stat-
ute confers standing on the Kimball children notwithstanding
the more general rule described above. See In re Guardianship
of Patrick W., 316 Neb. 381, 391, 4 N.W.3d 833, 841 (2024)
(“[t]o the extent there is a conflict between two statutes,
the specific statute controls over the general statute”). The
Kimball children founded their claims, at least in part, on the
notion that transfers of Richard’s assets beginning in 2013
were an abuse of Helen’s power of attorney. Thus, we turn
our attention to the Nebraska Uniform Power of Attorney Act
(NUPOAA). Neb. Rev. Stat. § 30-4001 et seq. (Reissue 2016
& Cum. Supp. 2024). The NUPOAA generally governs acts
under power of attorney that occurred on or after its effective
date, January 1, 2013. See § 30-4045. See, also, In re Estate
of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020) (NUPOAA
does not apply retroactively to acts done before its effec-
tive date).
The NUPOAA provides a list of persons that “may peti-
tion a court to construe a power of attorney or review the
agent’s conduct and grant appropriate relief.” § 30-4016(1).
Included in that list is “[t]he principal’s spouse, parent, or
issue.” § 30-4016(1)(d). The NUPOAA further provides that
the county court and the district court of the principal’s
domicile shall have concurrent jurisdiction to determine the

- 658 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
validity and enforceability of a power of attorney. § 30-4006.
The Kimball children are, without question, the “issue” of
a principal (Richard), and in this action they petitioned the
district court to review the conduct of an agent (Helen) under
a power of attorney. See § 30-4002(1) and (10) (setting forth
definitions of “agent” and “principal”).
Because the NUPOAA conferred standing on the Kimball
children to pursue the relief they were seeking, it would have
been improper to dismiss the action on standing grounds. See
Griffith v. Nebraska Dept. of Corr. Servs., 304 Neb. 287, 934
N.W.2d 169 (2019) (explaining that in Nebraska, Legislature
may provide by statute who has standing to pursue relief).
Accordingly, we proceed to consider the Kimball children’s
assignment of error.
Dismissal Based on Doctrine
of Jurisdictional Priority.
Both parties understand the district court’s initial order of
dismissal to have rested on the doctrine of jurisdictional pri-
ority. Following their lead, we consider whether the district
court erred in its application of that doctrine.
[4,5] Under the doctrine of jurisdictional priority, when dif-
ferent state courts have concurrent original jurisdiction over
the same subject matter, basic principles of judicial admin-
istration require that the first court to acquire jurisdiction
should retain it to the exclusion of another court. Charleen
J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014). We
have stated that while jurisdictional priority is not a matter of
subject matter or personal jurisdiction, courts should enforce
the jurisdictional priority doctrine to promote judicial comity
and avoid the confusion and delay of justice that would result
if courts issued conflicting decisions in the same controversy.
See id.
The Kimball children argue that, after the county court
dismissed the Kimball children’s petition there, the doctrine
of jurisdictional priority no longer supported dismissal. We

- 659 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
agree. The doctrine of jurisdictional priority applies when
there is a case concerning the same subject matter pending
in another court. See Brinkman v. Brinkman, 302 Neb. 315,
923 N.W.2d 380 (2019). That was no longer the case after the
county court dismissed the Kimball children’s petition there.
And while in some cases the resolution of a parallel case in
another court will have preclusive effects, see, e.g., Trausch v.
Hagemeier, 313 Neb. 538, 985 N.W.2d 402 (2023), appellees
make no argument in this appeal that the county court’s dis-
missal of the Kimball children’s petition has preclusive effects
in this case.
But even if the doctrine of jurisdictional priority no longer
supported dismissal after the county court dismissed the peti-
tion there, appellees argue that other reasons did. They argue
that the district court was correct to dismiss the action because
even if the Kimball children had standing, and even if the
facts of their complaint were assumed to be true, they were
not entitled to relief on the merits. Mindful of the principle
that an appellate court will affirm when the record adequately
demonstrates that a trial court decision is correct, even if
based on a ground or reason different from that assigned by
the trial court, see, e.g., State v. Brown, 312 Neb. 654, 980
N.W.2d 834 (2022), we proceed to consider this argument for
affirmance.
Failure to State a Claim.
In addition to moving to dismiss based on § 6-1112(b)(1),
appellees moved to dismiss based on § 6-1112(b)(6) for fail-
ure to state a claim. Consistent with that motion, they argue
on appeal that even if it is assumed that the challenged trans-
fers were invalid, the Kimball children would still have no
interest in the properties at issue.
[6,7] To prevail against a motion to dismiss for failure to
state a claim, a plaintiff must allege sufficient facts, accepted
as true, to state a claim to relief that is plausible on its face.
Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016). When

- 660 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
reviewing an order dismissing a complaint, an appellate court
accepts as true all facts which are well pled and the proper
and reasonable inferences of law and fact which may be drawn
therefrom, but not the plaintiff’s conclusion. Id.
In this case, we agree with appellees that even if the factual
allegations in the Kimball children’s complaint are accepted
as true, the Kimball children have not yet established a claim
for relief. Each of the claims asserted in the complaint are
premised on the following theory: that Helen wrongfully
transferred property belonging to Richard to herself; that
those transfers are invalid; and that, but for those transfers,
the Kimball children would have received the transferred
property pursuant to Richard’s will. But, for reasons we will
explain below, even if the Kimball children are correct that
the transfers were wrongful and thus invalid, they would still
have no interest in the properties at issue based on the facts
alleged in their complaint.
The Kimball children’s complaint asserted that they ought
to have received personal property of Richard’s under his
will, including his shares of Rosedale Ranch. But the terms of
the will that the Kimball children attached to their complaint
devised Richard’s personal property (other than the guns and
firearms he devised to the National Rifle Association) to
Helen. Therefore, even if Helen had wrongfully transferred
Richard’s personal property to herself before his death, it
would not have disrupted any expectancy interest of the
Kimball children, because they had none. Richard’s personal
property would have passed to Helen under his will even if
transfers before Richard’s death were invalid. Consequently,
the complaint stated no claim concerning personal property
upon which the Kimball children could have received relief.
Regarding real property in which the Kimball children
claimed an interest, their complaint identified only the Main
House. But they conceded before the district court and before
this court that prior to any transfer of Richard’s interest to
Helen by quitclaim deed, Richard and Helen owned the Main

- 661 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
House in joint tenancy. See Barry v. Barry, 147 Neb. 1067, 26
N.W.2d 1 (1947) (noting that pleading admitted real property
held in joint tenancy). If the transfer of the Main House was
void and it remained in joint tenancy, the Kimball children
would not have inherited any right to it under Richard’s will.
Instead, by operation of joint tenancy, Richard’s interest in
the Main House would have passed automatically to Helen.
See In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860
(2007) (each tenant in joint tenancy owns whole of property
and deceased tenant’s interest passes to surviving tenant upon
death, not by virtue of deceased’s will). By its own terms,
then, the complaint did not state any claim as to the Main
House upon which relief could be granted.
[8] Although we agree with appellees that the complaint
failed to state a claim upon which relief can be granted, as a
general rule, when a court grants a motion to dismiss for failure
to state a claim, a party should be given leave to amend absent
undue delay, bad faith, unfair prejudice, or futility. Eadie v.
Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018). And
while the Kimball children requested leave to amend to add
Richard’s estate as a party, rather than to address the short-
comings of their complaint noted above, a failure to request
leave to amend only makes it more difficult to show that leave
to amend should have been given. See Chaney v. Evnen, 307
Neb. 512, 949 N.W.2d 761 (2020). See, also, Eadie, supra;
John P. Lenich, Nebraska Civil Procedure § 15:5 (2025).
In this case, although they did not request leave to amend
to address the merits of their complaint, the Kimball chil-
dren’s brief in opposition to the motion did discuss ways in
which property held by Richard might have passed to them
but for Helen’s alleged actions, beyond the theories discussed
in the complaint. In the brief, as we noted above, they men-
tioned the possibility that Richard’s will may not have been
valid and that they would have inherited property from him
under intestacy statutes. They also suggested that certain
securities owned by Richard may have, due to a transfer on

- 662 -
Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
KIMBALL v. ROSEDALE RANCH
Cite as 319 Neb. 650
death designation, automatically transferred to them upon
Richard’s death. Although the Kimball children’s complaint
did not mention these alternative theories, we cannot say
that it would be futile to assert them. Neither can we dis-
cern any other appropriate basis for denying leave to amend.
Accordingly, although the complaint failed to state a claim,
we cannot affirm dismissal on that basis, because the Kimball
children should have been granted leave to amend.
We therefore reverse the dismissal and remand the cause
with direction to grant the Kimball children leave to amend.
Nothing in this opinion should be read to preclude the Kimball
children from also amending the complaint to add a representa-
tive of Richard’s estate as a party. Nor should anything in this
opinion be read to comment on the merits of the Kimball chil-
dren’s claims and appellees’ defenses, beyond our conclusion
above that we cannot say that amendment of the complaint
would be futile.
CONCLUSION
The Kimball children had standing to pursue relief under the
NUPOAA, and the doctrine of jurisdictional priority did not
support dismissal. And although the Kimball children failed
to state a claim upon which relief can be granted, we find
that they should be given leave to amend their complaint.
Accordingly, we reverse the dismissal and remand the cause
with direction to grant the Kimball children leave to amend.
Reversed and remanded with direction.