J.R. Simplot Co. v. Jelinek

548 	275 Nebraska reports
J.R. simplot company , appellant , v . J ames J elineK,
as peRsonal R epResentative of the estate of
edwaRd f. J elineK, deceased , and
individually , et al ., appellees .
748 N.W.2d 17
Filed april 24, 2008. 	No. s-06-666.
1. Statutes: Appeal and Error. statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
2. Equity: Jurisdiction: Appeal and Error. the correct standard of review for a
trial court’s exercise of equity jurisdiction is de novo on the record, with indepen-
dent conclusions of law and fact.
3. Decedents’ Estates: Executors and Administrators. a personal representative’s
duty is to act on behalf of an estate with the end goal of distributing and closing
that estate.
4. Decedents’ Estates: Notice: Claims. Mere notice to a representative of an estate
regarding a possible demand or claim against the estate does not constitute pre-
senting or filing a claim under Neb. rev. stat. § 30-2486 (reissue 1995).
5. Open Accounts: Actions. an action on account or open account is appro-
priate where the parties have conducted a series of transactions for which a
balance remains.
6. Open Accounts: Limitations of Actions. In an action on an open account, where
the dealing between the parties was continuous, each succeeding item is applied
to the true balance, and the latest item of the account removes prior items from
the operation of the statute of limitations.
7. ____: ____. Not every entry in an open account is an item that restarts the appli-
cable statute of limitations.
8. Estoppel. the elements of equitable estoppel are, as to the party estopped: (1)
conduct which amounts to a false representation or concealment of material facts,
or at least which is calculated to convey the impression that the facts are other-
wise than, and inconsistent with, those which the party subsequently attempts to
assert; (2) the intention, or at least the expectation, that such conduct shall be
acted upon by, or influence, the other party or other persons; and (3) knowledge,
actual or constructive, of the real facts. as to the other party, the elements are: (1)
lack of knowledge and of the means of knowledge of the truth as to the facts in
question; (2) reliance, in good faith, upon the conduct or statements of the party
to be estopped; and (3) action or inaction based thereon of such a character as
to change the position or status of the party claiming the estoppel, to his or her
injury, detriment, or prejudice.
appeal from the District Court for box butte County: paul
d. empson, Judge. affirmed.
David a. Dudley and Jacob p. Wobig, of baylor, evnen,
Curtiss, Grimit & Witt, L.L.p., for appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

terry Curtiss, of Curtiss, Moravek, Curtiss, Margheim &
Miller, p.C., L.L.o., for appellees.
heavican , 	c.J., 	wRight , 	connolly , 	geRRaRd , 	stephan ,
mccoRmacK, and milleR-leRman , JJ.
heavican , c.J.
INtroDUCtIoN
this case presents several issues relating to a claim filed
against the estate of edward F. Jelinek. We are first asked
to determine whether crop services provided to the estate by
J.r. simplot Company (simplot) are administration expenses
under Neb. rev. stat. § 30-2485(b) (reissue 1995). If so, then
simplot’s claim should be allowed, because under § 30-2485,
no statute of limitations barred the claim. However, if the claim
was not for administration expenses, we are presented with the
question of whether simplot’s “Demand for Notice” or, alter-
natively, the filing of this suit in district court, operated as a
timely claim under Neb. rev. stat. § 30-2486 (reissue 1995).
FaCts
the facts of this case are largely uncontested. edward passed
away testate on May 21, 1999, leaving an estate primarily
consisting of approximately 4,500 acres of farmland. James
Jelinek, edward’s grandson, was named personal representative
of the estate. edward’s will specifically authorized the personal
representative to keep the administration of his estate open for
up to 15 years and directed that the farming operation on the
estate should be continued during that time.
In september 1999, crops located on land owned by the
estate suffered significant hail damage. the crops were unin-
sured. accordingly, there were insufficient funds to pay oper-
ating debt due in 1999. Due to the inability to pay this debt,
the lender declined to provide further financing of the estate’s
operations. New financing was obtained through ag services
of america, Inc. (ag services). this financing lasted from the
2000 through the 2002 growing seasons. In order to receive
goods or services under this new agreement, the estate had to
specifically request the goods or services. ag services would
then either approve or decline the request, with ag services
J.r. sIMpLot Co. v. JeLINek 	549
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550 	275 Nebraska reports
actually purchasing the goods or services. these goods and
services were then sold to the estate at a markup.
at this same time, the estate’s account with simplot was also
changed to cash on delivery, meaning that no goods or services
were to be provided without payment up front. During the 3
years at issue, there were times when ag services would not
approve certain requests made by James on behalf of the estate.
Given the payment status at simplot, the estate could not itself
contract for the goods or services. Nevertheless, simplot’s local
branch manager continued to provide certain goods and ser-
vices to the estate. the payment status was circumvented with
the manager’s simply keeping track of the goods and services
provided, but not issuing invoices. It is clear from the record
that with respect to the goods and services at issue, the manager
was aware that he was dealing with James in James’ capacity as
personal representative for edward’s estate.
eventually, the circumvention was discovered. on February
26, 2003, the goods and services provided to the estate were
invoiced for a total of $161,053.78. that invoice provided for a
due date of March 20, 2003. the estate did not pay that invoice
and was billed again on March 26 in the amount of $174,504.98,
with a due date of april 20. that invoice was also not paid.
the reason put forth by James for the nonpayment of the bill
was that during the 2000 growing season, some of the estate’s
dryland corn fields had a lower yield than James had expected.
James believed the cause of this poor yield was the spraying of
an herbicide recommended by simplot, and he estimated a loss
of approximately $150,000 to $160,000. James refused to pay
the simplot bill despite acknowledging that at least some of the
goods and services were provided. James’ refusal was based
upon his belief that simplot owed the estate for the poor yield
caused by the spraying of the herbicide.
on June 10, 2003, simplot filed a “Demand for Notice” in
the county court for box butte County. that demand stated that
“[simplot] has a financial interest in the estate of the deceased
and holds an outstanding claim,” but included no basis for the
potential claim and listed no amount due.
on March 25, 2004, simplot filed this suit against the estate in
box butte County District Court. the estate denied it was liable

and asserted a cross-claim against simplot for $175,085.09 for
damages to the estate’s 2000 dryland corn crop. that cross-claim
was later dismissed by the district court. on May 16, 2006, the
district court dismissed simplot’s claim, finding the claim was
barred by the statute of limitations set forth in § 30-2485. the
district court also found simplot’s “Demand for Notice” did not
qualify as a claim under § 30-2486.
assIGNMeNts oF error
on appeal, simplot assigns, restated, that the district court
erred in (1) determining that expenses of conducting farm oper-
ations were not “administration expenses” under § 30-2485(b);
(2) determining that simplot’s filing entitled “Demand for
Notice” was insufficient as a filing of claim under § 30-2485(b);
(3) not determining that the estate’s account with simplot was
open, which would toll the applicable statute of limitations; and
(4) determining simplot’s equitable actions were barred.
staNDarD oF reVIeW
[1] statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court.1
[2] the correct standard of review for a trial court’s exercise
of equity jurisdiction is de novo on the record, with indepen-
dent conclusions of law and fact.2
aNaLysIs
on appeal, simplot’s basic contention, broadly stated, is that
the district court erred in concluding that its claim was barred
by the statute of limitations set forth in § 30-2485(b). section
30-2486 provides a framework for analyzing this assertion.
that section provides that someone with a claim against an
estate may present it in one of two ways. Under § 30-2486(1),
the claim may be filed with the probate court. alternatively,
under § 30-2486(2), a claimant may file suit to recover the
amount of the claim, so long as the suit is filed within the time
period provided for filing the claim with the estate.
1 Jones v. Shelter Mut. Ins. Cos., 274 Neb. 186, 738 N.W.2d 840 (2007).
2 Hornig v. Martel Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000).
J.r. sIMpLot Co. v. JeLINek 	551
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552 	275 Nebraska reports
the time period for filing claims with the estate is set forth
in § 30-2485(b). that section generally provides that with
respect to claims arising at or after the death of the decedent,
as is presented in this case:
all claims, other than for administration expenses, against
a decedent’s estate which arise at or after the death of the
decedent, including claims of the state and any subdivision
thereof, whether due or to become due, absolute or con-
tingent, liquidated or unliquidated, founded on contract,
tort, or other legal basis, are barred against the estate, the
personal representative, and the heirs and devisees of the
decedent, unless presented as follows:
(1) a claim based on a contract with the personal rep-
resentative, within four months after performance by the
personal representative is due;
(2) any other claim, within four months after it arises.3
Simplot’s Claim Not For Administration Expenses.
In its first assignment of error, simplot argues that its claim
was an administration cost and, under § 30-2485(b), did not
need to be filed with the probate court within the 4-month
time period. In support of this contention, simplot argues
that the overriding goal of edward’s will was a concern over
the continuation of his farming operations and that edward
had specifically authorized keeping the estate open for up to
15 years. simplot asserts that given the possibility of a long-
term administration of the estate, the crop services it provided
were necessary to maintain the cropland, were incurred in the
administration of the estate, and therefore were administration
expenses as envisioned by § 30-2485(b).
the current Nebraska probate Code was enacted in 1974 and
became operative on January 1, 1977. While it closely follows
the language of the Uniform probate Code, it differs in one
particular way that is significant to our analysis in this case.
While the Uniform probate Code requires all claims to be filed
with the estate or the probate court,4 § 30-2485(b) specifically
3 § 30-2485(b).
4 Compare Unif. probate Code § 3-803, 8 U.L.a. 41 (Cum. supp. 2007).

exempts administration expenses from such requirement. It
appears that Nebraska is unique in providing such an exemption.
the term “administration expenses” is not defined in the probate
code. Nor has the term been precisely defined by Nebraska case
law, though the topic has been generally discussed.
In cases decided since the adoption of the current probate
code, this court has concluded that expenses paid to engage in
litigation on behalf of the estate were administration expenses
for the purposes of § 30-2485(b),5 as were the attorney fees
of a party other than the administrator.6 Furthermore, in cases
predating the current probate code, we held that guardian
ad litem fees7 and reimbursement for legal services provided
by the administrator8 were properly considered administra-
tion expenses.
simplot’s contention that its claim constituted an administra-
tion expense under § 30-2485(b) suffers from a fatal flaw. If the
crop services simplot provided are properly considered admin-
istration expenses, such ignores altogether § 30-2485(b)(1),
which provides for the 4-month claim period for “[a] claim
based on a contract with the personal representative . . . .”
[3] If this court were to adopt simplot’s reasoning—that
the services in question should be considered administration
expenses—then § 30-2585(b)(1) would be rendered virtually
meaningless. a personal representative’s duty is to act on
behalf of the estate with the end goal of distributing and clos-
ing that estate.9 In general, each and every contract entered by
the personal representative is intended to assist the personal
representative in his or her administration of the estate. Under
simplot’s reasoning, all of those expenses could reasonably be
construed as administration expenses, resulting in a situation
in which it would rarely, if ever, be necessary for someone to
5 In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (1988).
6 Roberts v. Snow Redfern Memorial Foundation, 196 Neb. 139, 242 N.W.2d
612 (1976).
7 Hauschild v. Hauschild, 176 Neb. 319, 126 N.W.2d 192 (1964).
8 In re Estate of Wilson, 83 Neb. 252, 119 N.W. 522 (1909).
9 see, generally, Neb. rev. stat. §§ 30-2462 to 30-2482 (reissue 1995 &
Cum. supp. 2006).
J.r. sIMpLot Co. v. JeLINek 	553
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554 	275 Nebraska reports
actually file a claim with the probate court. We therefore reject
simplot’s contention and hold that the claim in this case was
not for administration expenses.
In support of this holding, we rely on our previous case law
regarding administration expenses. as noted, this court has
never defined administration expenses. this court has, however,
indicated that certain claims were administrative in nature;
many of those cases predate our current probate code. We
conclude that the Legislature adopted the current probate code,
including its unique exemption for administration expenses,
with the knowledge of what expenses this court had held to
be administration expenses. We decline to expand the list of
expenses determined to be administrative to include the ser-
vices provided by simplot in this case, particularly when those
services are so clearly “based on a contract with the personal
representative” and thus fit neatly within § 30-2485(b)(1).
also supporting our conclusion are the purposes behind
§ 30-2485(b). We have stated that
[t]he purpose of the nonclaim statute, § 30-2485, is
facilitation and expedition of proceedings for distribu-
tion of a decedent’s estate, including an early appraisal
of the respective rights of interested persons and prompt
settlement of demands against the estate. as a result of the
nonclaim statute, the probate court or the personal repre-
sentative can readily ascertain the nature and extent of the
decedent’s debts, determine whether any sale of property
is necessary to satisfy a decedent’s debts, and project a
probable time at which the decedent’s estate will be ready
for distribution.10
Where the purpose behind § 30-2485(b) is to facilitate and
expedite the distribution of a decedent’s estate, defining admin-
istration expenses broadly, as simplot would essentially have us
do, would not forward this goal.
We also note that we have examined both the cases and
regulations to which simplot directs us and find them all
distinguishable and inapplicable. In Perez v. Gil’s Estate et
10 In re Estate of Feuerhelm, 215 Neb. 872, 874-75, 341 N.W.2d 342, 344
(1983).

al11 and Evans v. Carroll,12 the administrators of the estate in
each case wished to recover expenses incurred while continu-
ing decedent’s business following decedent’s death; the court
in each case concluded that the expenses in question were
expenses of administration. However, there is no indication that
the court in either case was presented with the statutory distinc-
tion that we have here: namely, the distinction made between
“administration expenses” and “claims based upon a contract
with the personal representative.”
We 	also 	find 	simplot’s 	argument 	based 	upon 	Internal
revenue Code regulations unpersuasive. the regulations in
question discuss expenses which are deductible from a dece-
dent’s gross estate and define administration fees as executor’s
commissions, attorney fees, and miscellaneous administration
expenses.13 Miscellaneous administration expenses are defined
in this context to include those “[e]xpenses necessarily incurred
in preserving . . . the estate,” including “the cost of . . . main-
taining property of the estate.”14
We, of course, agree that under the regulations, the cost of
maintaining the property of an estate could, in certain circum-
stances, be properly considered a miscellaneous administration
expense for the purposes of the Internal revenue Code. We
conclude, however, that such is of no import to our analysis of
whether the services in question are “administration expenses”
under the Nebraska probate Code.
We also reject simplot’s argument that the estate is estopped
from now arguing that the expenses in question were not “admin-
istration expenses” when the estate referred to the expenses as
such throughout the administration of the estate. We conclude
that the terminology the estate employed in characterizing the
expenses in question is of no consequence, particularly as it
does not appear the nature of the expenses was at issue at the
time the statements and filings were made by the estate.
11 Perez v. Gil’s Estate et al, 29 N.M. 313, 222 p. 907 (1924).
12 Evans v. Carroll, 167 Ga. 68, 144 s.e. 912 (1928).
13 26 C.F.r. § 20.2053-3(a) (2007).
14 § 20.2053-3(d)(1) at 362.
J.r. sIMpLot Co. v. JeLINek 	555
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556 	275 Nebraska reports
We reject simplot’s contention that its claim was for admin-
istration expenses. such a conclusion is supported by our prior
case law on administration expenses in general and also by
the purposes behind § 30-2485(b). as such, simplot’s first
assignment of error is without merit. because the expenses in
question were not administrative, simplot was required under
§§ 30-2485(b)(1) and 30-2486 to file a claim with the probate
code within 4 months. We discuss below whether simplot filed
such a claim.
Simplot’s Demand for Notice Did Not Comply
With § 30-2486(1).
Having concluded the district court was correct in finding
the services provided by simplot did not qualify as adminis-
tration expenses, we are next presented with simplot’s second
assignment of error. In particular, simplot argues that its June
10, 2003, “Demand for Notice” qualified as a claim under
§ 30-2486(1). that section provides:
the claimant may file a written statement of the claim, in
the form prescribed by rule, with the clerk of the court.
the claim is deemed presented on the filing of the claim
with the court. If a claim is not yet due, the date when it
will become due shall be stated. If the claim is contin-
gent or unliquidated, the nature of the uncertainty shall
be stated. If the claim is secured, the security shall be
described. Failure to describe correctly the security, the
nature of any uncertainty, and the due date of a claim not
yet due does not invalidate the presentation made.
simplot’s “Demand for Notice” provided that
[p]ursuant 	to 	Nebraska 	probate 	Code 	§30-2413, 	the
undersigned hereby demands mailed notice pursuant to
Nebraska probate Code § 30-2220(a)(1) of any of the
following orders or filings pertaining to the estate of the
above deceased: . . . Inventory or any supplementary
inventory [and a]ll other filings made by the personal
representative or his attorney in this matter.
the notice further stated that “[simplot] has a financial interest
in the estate of the deceased and holds an outstanding claim.”
simplot claims this demand was sufficient because § 30-2486

provides that the “[f]ailure to describe correctly the security,
the nature of any uncertainty, and the due date . . . does not
invalidate the presentation made.”
[4] In re Estate of Feuerhelm15 is instructive with respect
to whether simplot’s “Demand for Notice” was sufficient as a
statement of claim under § 30-2486(1). In that case, we held
the purported claim against the estate was filed by the wrong
entity, but also noted the claim was further deficient:
although the language of [the] claim did alert the per-
sonal representative to the possibility of a claim by the
trust, [the] claim did not contain a demand . . . upon the
estate for satisfaction of any obligation. Mere notice to a
representative of an estate regarding a possible demand or
claim against the estate does not constitute presenting or
filing a claim under § 30-2486. If notice were accorded
the stature of a claim, the resultant state of flux and uncer-
tainty would frustrate and avoid the purpose and objec-
tives of the nonclaim statute.16
We conclude the “Demand for Notice” filed by simplot
was at most “notice to a representative of an estate regarding
a possible demand or claim against the estate.”17 simplot’s
“Demand” requested notice of any filings or orders in the estate
and indicated, without providing any basis for the claim or
amount due, that “[simplot] has a financial interest in the estate
of the deceased and holds an outstanding claim.”
Moreover, we note this “Demand” referenced not § 30-2486(1),
but Neb. rev. stat. § 30-2413 (reissue 1995), which provides
that interested parties can request notice from the court of any
order or filings pertaining to an estate. Lending further support
to the conclusion that simplot had not intended this as a claim
is the fact that simplot had, on July 16, 1999, filed a “statement
15 In re Estate of Feuerhelm, supra note 10.
16 Id. at 875, 341 N.W.2d at 345. see, also, J. J. Schaefer Livestock Hauling
v. Gretna St. Bank, 229 Neb. 580, 428 N.W.2d 185 (1988) (citing with
approval language in In re Estate of Feuerhelm, supra note 10, noting that
notice should not be accorded status of claim).
17 see In re Estate of Feuerhelm, supra note 10, 215 Neb. at 875, 341 N.W.2d
at 345.
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558 	275 Nebraska reports
of Claim” with the estate in connection with services provided
to edward prior to his death, which services were unrelated to
this case. that “statement of Claim” provided a description of
the claim, a due date, and the name and address of the claimant
or authorized party.
the “Demand for Notice” filed on June 10, 2003, did not
qualify as a statement of claim under § 30-2486(1). the record
reveals no other filings which might otherwise qualify as a state-
ment of claim filed with respect to amounts owed to simplot.
simplot’s second assignment of error is without merit.
Simplot’s Filing of Suit Did Not Qualify as Claim
Under § 30-2486(2).
Having concluded that simplot’s “Demand for Notice” was
insufficient as a claim under § 30-2486(1), we must next deter-
mine whether the filing of suit against the estate in the box
butte County District Court was sufficient as a claim under
§ 30-2486(2). such filing may qualify as a claim so long as “the
commencement of the proceeding . . . occur[ed] within the time
limited for presenting the claim,”18 which under these facts was
“within four months after performance by the personal represen-
tative is due.”19
the operative question presented, then, is when “perfor-
mance by the personal representative [was] due” in this case.
simplot contends that because it charged a finance charge on
unpaid amounts, the account was an open one and “there was
no dedicated time at which performance from the personal
representative was due, and the limitations period set forth in
the probate Code has not run.”20
[5] We have noted that with respect to open accounts,
“‘“[a]n action on account or open account is appropriate where
18 § 30-2486(2).
19 § 30-2485(b)(1).
20 brief for appellant at 17.

the parties have conducted a series of transactions for which a
balance remains.”’”21
openness is indicated when further dealings between the
parties are contemplated and when some term or terms
of the contract are left open and undetermined. . . . the
critical factor in deciding whether an account is open is
whether the terms of payment are specified by the agree-
ment or are left open and undetermined.22
It is clear that the estate’s account with simplot was an open
account. the record in this case clearly shows that the par-
ties “conducted a series of transactions for which a balance
remains” and that the terms of payment between the estate and
simplot were left open and undetermined.
[6,7] While simplot may be correct that the account between
it and the estate was open, such fact is not dispositive. In
Sodoro, Daly v. Kramer,23 a law firm was attempting to recover
unpaid funds from a former client. the last charge on the
client’s account was a fee transaction dated april 4, 1997, for
the preparation of correspondence to the client regarding oral
argument. the final transaction in the account, however, was a
credit for the return on an appeal bond dated June 19. the firm
did not file suit against the client until June 7, 2001. We held
that the suit was barred by the statute of limitations.
It is well established that in an action on an open
account, where the dealing between the parties was con-
tinuous, each succeeding item is applied to the true bal-
ance, and the latest item of the account removes prior
items from the operation of the statute of limitations. . . .
However, not every entry in an account is an “item” that
restarts the statute of limitations.24
We noted that while part payment may remove the bar to
recovery imposed by the statute of limitations, the credit for
21 Sodoro, Daly v. Kramer, 267 Neb. 970, 975, 679 N.W.2d 213, 219 (2004)
(quoting Pipe & Piling Supplies v. Betterman & Katelman, 8 Neb. app. 475,
596 N.W.2d 24 (1999)).
22 Id. at 976, 679 N.W.2d at 219 (citation omitted).
23 Sodoro, Daly, supra note 21.
24 Id. at 976-77, 679 N.W.2d at 220.
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560 	275 Nebraska reports
the return of the appeal bond did not qualify as part payment.
We reasoned that the purpose behind removing the bar in cer-
tain circumstances was that part payment acted as recognition
and acknowledgment of the entire debt; reasoning which did
not apply in the case of a credit where there was no affirmative
action by the client.
We find the reasoning from Sodoro, Daly equally applicable
here. Further contracting for and receipt of services requires an
affirmative action by a debtor and would likely be seen as rec-
ognition and acknowledgment of the entire debt. However, sim-
ply being charged a finance charge on amounts already owed
requires no affirmative action by a debtor. as such, it should not
be treated as a debtor’s recognition and/or acknowledgment of a
debt sufficient to toll the applicable statute of limitations.
adopting such a position—wherein simply charging a finance
charge or interest could keep the statute of limitations from
running—would undermine the concept of a statute of limita-
tions. If this were all that was necessary to keep a limitations
period from running for an action on account, then accounts
could remain unpaid for years with little or no incentive for
creditors to attempt to recover the amounts due.
the record in this case shows the estate was billed for ser-
vices provided to it on February 26, 2003, with a due date of
March 20, and again on March 26, with a due date of april
20. Under §§ 30-2485 and 30-2486(2), suit had to be filed
within 4 months of the date the underlying obligation was
due. simplot acknowledges that suit was not filed until March
25, 2004, approximately 1 year after the estate was first billed
and well outside the 4 months permitted under § 30-2485. It is
apparent that simplot’s suit does not qualify as a claim under
§ 30-2486(2). simplot’s third assignment of error is with-
out merit.
Simplot Is Not Entitled to Equitable Relief.
Finally, simplot argues that even if it was found to have not
filed a claim, “the estate should be estopped from asserting
the statute of limitations as a defense to simplot’s claim.”25
25 brief for appellant at 19.

the basis for this contention is the alleged deception perpe-
trated against it when simplot’s local branch manager failed to
invoice the estate for services provided by simplot.
[8] the elements of equitable estoppel are, as to the party
estopped: (1) conduct which amounts to a false representation
or concealment of material facts, or at least which is calculated
to convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts
to assert; (2) the intention, or at least the expectation, that such
conduct shall be acted upon by, or influence, the other party
or other persons; and (3) knowledge, actual or constructive, of
the real facts. as to the other party, the elements are: (1) lack
of knowledge and of the means of knowledge of the truth as to
the facts in question; (2) reliance, in good faith, upon the con-
duct or statements of the party to be estopped; and (3) action
or inaction based thereon of such a character as to change the
position or status of the party claiming the estoppel, to his or
her injury, detriment, or prejudice.26
assuming the doctrine of equitable estoppel is available in
actions such as this,27 we conclude that simplot has not shown
the estate should be estopped from arguing the application
of § 30-2485.
simplot argues that James and simplot’s local branch man-
ager acted to conceal from simplot the fact that simplot was
providing services to the estate without invoicing those ser-
vices. What simplot fails to show, though, is how it changed its
position as a result of this alleged concealment. While it is true
that the estate was not initially invoiced for the services, the
manager’s actions were eventually discovered and in February
and March 2003, the services were invoiced. Under § 30-2485,
a claim or suit should have been filed within 4 months of
this date. simplot did not file such a claim until 1 year later,
nor has simplot provided any reason why timely filing was
not possible.
We further note that not only has simplot failed to show that
it changed its position in reliance on the alleged concealment, it
26 Mogensen v. Mogensen, 273 Neb. 208, 729 N.W.2d 44 (2007).
27 see In re Estate of Masopust, 232 Neb. 936, 443 N.W.2d 274 (1989).
J.r. sIMpLot Co. v. JeLINek 	561
Cite as 275 Neb. 548

562 	275 Nebraska reports
likely would not be able to show the necessary “lack of knowl-
edge . . . as to the facts in question” in order to be entitled to
an estoppel defense. this is so because the manager, a simplot
employee, was involved in the alleged concealment, and his
knowledge would likely be imputed to simplot.28
simplot’s final assignment of error is without merit.
CoNCLUsIoN
the crop services for which simplot seeks payment are not
“administration expenses” under § 30-2485. as such, it was
necessary that simplot file either a claim or a lawsuit within
4 months from when the sums were due. since simplot failed
to do either, it is barred from recovering any amounts due. the
district court did not err in dismissing simplot’s claim.
affiRmed .
28 see, e.g., Nichols v. Ach, 233 Neb. 634, 447 N.W.2d 220 (1989), disap-
proved on other grounds, Anderson v. Service Merchandise Co., 240 Neb.
873, 485 N.W.2d 170 (1992).
glenn poppeRt , appellant , v .
B ill d. dicKe et al ., appellees .
747 N.W.2d 629
Filed april 24, 2008. 	No. s-06-741.
1. Jurisdiction: Appeal and Error. a jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. ____: ____. before reaching the legal issues presented for review, it is the duty
of an appellate court to determine whether it has jurisdiction over the matter
before it.
3. Actions: Words and Phrases. a “claim for relief” within the meaning of Neb.
rev. stat. § 25-1315(1) (Cum. supp. 2006) is equivalent to a separate cause of
action, as opposed to a separate theory of recovery.
4. Final Orders: Words and Phrases. a final judgment is the functional equivalent
of a final order within the meaning of Neb. rev. stat. § 25-1902 (reissue 1995).
5. Actions: Words and Phrases. a cause of action consists of the fact or facts
which give one a right to judicial relief against another; a theory of recovery is
not itself a cause of action.
6. Actions: Pleadings. two or more claims in a complaint arising out of the same
operative facts and involving the same parties constitute separate legal theories,
of either liability or damages, and not separate causes of action.