In re Estate of Hockemeier

I n re estate of Carolyn K. HoCKemeIer , deCeased.
trI Valley H ealtH system , appellee , V. mary e. HoCKemeIer
and mICHael W. HoCKemeIer , C opersonal representatIVes
of tHe estate of Carolyn K. HoCKemeIer ,
deCeased, appellants.
786 N.W.2d 680
Filed July 30, 2010. 	No. S-09-1054.
1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues presented
by a case.
2. ____: ____. A jurisdictional question which does not involve a factual dispute is
determined by an appellate court as a matter of law, which requires the appellate
court to reach a conclusion independent of the lower court’s decision.
3. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court’s
power to hear and determine a case in the general class or category to which
the proceedings in question belong and to deal with the general subject involved
in the action before the court and the particular question which it assumes
to determine.
4. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any
time by any party or by the court sua sponte.
5. Decedents’ Estates: Claims: Notice: Pleadings: Jurisdiction. Where a prop-
erly presented claim against an estate is disallowed by a personal representative
pursuant to Neb. Rev. Stat. § 30-2488(a) (Reissue 2008) and notice of a pending
bar is given as provided therein, the filing of a petition for judicial allowance
of the claim within the 60-day period specified in § 30-2488(a) is a jurisdic-
tional requirement.
Appeal from the County Court for Furnas County: anne
paIne, Judge. Reversed and vacated, and cause remanded with
directions to dismiss.
Patricia E. Dodson, of Dodson & Dodson, for appellants.
Kevin D. Urbom, of Urbom Law Offices, P.C., for appellee.
H eaVICan, 	C.J., 	WrIgHt, 	C onnolly, 	gerrard, 	stepHan,
mCC ormaCK, and mIller-lerman, JJ.
stepHan, J.
The personal representatives of the estate of Carolyn K.
Hockemeier (Hockemeier) appeal from an order of the county
court for Furnas County allowing the claim of Tri Valley
420 	280 NEBRASKA REPORTS
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www.nebraska.gov/apps-courts-epub/
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Health System (Tri Valley). We conclude that the probate court
lacked jurisdiction to allow the claim.
BACKGROUND
Prior to her death on April 26, 2008, Hockemeier received
various medical services from Tri Valley. Most of the services
were provided prior to March 3, 2004. Hockemeier did not
have health insurance and was therefore personally responsible
for the cost of the services.
On March 3, 2004, Hockemeier entered into a “Time Payment
Plan Contract” with Tri Valley. On that date, the balance due
on Hockemeier’s account with Tri Valley was $23,333.05. The
contract provided that the balance was payable to Tri Valley in
monthly installments of $100 until the balance was paid in full.
The contract further provided that failure to make a monthly
payment would result in termination of the contract and pos-
sible “other collection activity.”
Hockemeier made timely payments pursuant to the contract
until her death. On May 2, 2008, Hockemeier’s surviving adult
children, Michael W. Hockemeier and Mary E. Hockemeier,
were appointed copersonal representatives of her estate. Mary
continued making the $100 monthly payments to Tri Valley
after Hockemeier’s death by checks drawn on an account in the
name of “Carolyn K. Hockemeier.”
On May 12, 2008, Tri Valley filed a claim against the estate,
asserting that it was owed $22,900 for the medical services
it had provided to Hockemeier. The personal representatives
mailed a written notice of disallowance to Tri Valley on May
30. The written notice denied the claim in full and specifi-
cally stated that “failure to file a Petition for Allowance or
to commence a proceeding within sixty (60) days after the
mailing of this notice will forever bar that part of your claim
so disallowed.”
On August 11, 2008, Tri Valley filed a document titled
“Petition for Allowance of Fees” in which it claimed it was
owed $22,700 by the estate for medical services provided to
Hockemeier. After various delays, the county court conducted
an evidentiary hearing and then entered an order allowing
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Cite as 280 Neb. 420

Tri Valley’s claim in the amount of $21,300. The personal rep-
resentatives filed this timely appeal.
ASSiGNMENTS OF ERROR
The personal representatives assign, restated and renum-
bered, that the county court erred in (1) failing to recognize
that the copersonal representatives personally assumed respon-
sibility for the March 3, 2004, time payment contract, which
resulted in a novation of the contract; (2) accelerating the time
payment contract when the contract was not in default; (3) not
dismissing Tri Valley’s claim for failure to timely “prove up”
the claim; and (4) not dismissing Tri Valley’s claim because it
petitioned for the allowance of “fees.”
STANDARD OF REViEW
[1,2] Before reaching the legal issues presented for review,
it is the duty of an appellate court to settle jurisdictional issues
presented by a case.1 A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as
a matter of law, which requires the appellate court to reach a
conclusion independent of the lower court’s decision.2
ANALYSiS
The personal representatives did not argue to the probate
court or in their initial brief on appeal that Tri Valley’s claim
was barred because the petition for allowance was not timely
filed. But the personal representatives did raise the issue at
oral argument before this court. Because it posed a possible
jurisdictional question for this court to consider, we ordered the
parties to submit additional briefs on the issue.
[3,4] Subject matter jurisdiction is a court’s power to hear
and determine a case in the general class or category to which
the proceedings in question belong and to deal with the gen-
eral subject involved in the action before the court and the
1 Miller v. Regional West Med. Ctr., 278 Neb. 676, 772 N.W.2d 872 (2009);
Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).
2 Jacob North Printing Co. v. Mosley, 279 Neb. 585, 779 N.W.2d 596
(2010); Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).
422 	280 NEBRASKA REPORTS

particular question which it assumes to determine.3 Lack of
subject matter jurisdiction may be raised at any time by any
party or by the court sua sponte.4
We have previously held that the time periods established by
Neb. Rev. Stat. § 30-2485 (Reissue 2008) for the initial presen-
tation of probate claims are mandatory and cannot be waived.5
in this case, there is no contention that Tri Valley’s claim was
not timely presented. Rather, the focus is on the events which
transpired after the personal representatives notified Tri Valley
that they had disallowed its claim.
Neb. Rev. Stat. § 30-2488 (Reissue 2008) defines the power
of a probate court to allow claims which have been disallowed
by a personal representative. Section 30-2488(a) provides:
Every claim which is disallowed in whole or in part by
the personal representative is barred so far as not allowed
unless the claimant files a petition for allowance in the
court or commences a proceeding against the personal
representative not later than sixty days after the mailing
of the notice of disallowance . . . if the notice warns the
claimant of the impending bar.
The probate court is authorized to allow those claims which
were “filed with the clerk of the court in due time and not
barred by [§ 30-2488(a)].”6
Here, the personal representatives mailed notice of the dis-
allowance of Tri Valley’s claim on May 30, 2008, and the
notice contained the requisite warning of the impending bar.
But Tri Valley did not file its petition for allowance until
August 11, a date clearly outside the 60-day window specified
in § 30-2488(a).
The question before us is whether the 60-day period set
forth in § 30-2488(a) is a jurisdictional requirement, or whether
it is in the nature of a statute of limitations. if it is the latter,
3 McClellan v. Board of Equal. of Douglas Cty., 275 Neb. 581, 748 N.W.2d
66 (2008); Rozsnyai v. Svacek, 272 Neb. 567, 723 N.W.2d 329 (2006).
4 McClellan v. Board of Equal. of Douglas Cty., supra note 3; Betterman v.
Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).
5 In re Estate of Masopust, 232 Neb. 936, 443 N.W.2d 274 (1989).
6 § 30-2488(c).
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Tri Valley’s failure to file its petition within the time period
cannot be raised by the personal representatives for the first
time to this court. This is so because a statute of limitations
does not operate by its own force as a bar, but, rather, oper-
ates as a defense to be pled by the party relying upon it and
is waived if not pled.7 But if filing within 60 days is a juris-
dictional requirement, this court can and must consider Tri
Valley’s failure to timely file.8
A typical statute of limitations specifies only that an action
must be commenced within a specified time period.9 The lan-
guage in § 30-2488(a) is unlike a typical statute of limitations
because it does not merely specify the time for filing a petition
to allow a disallowed claim; it also specifies the consequences
of an untimely filing. The statute clearly and expressly states
that as long as the notice of disallowance informs the claimant
of the 60-day time limitation, the claim is barred if the claim-
ant fails to act within that period. This statutory language is
self-executing; if a petition for allowance is not filed within the
prescribed period, the claim is barred by operation of law.
in In re Estate of Lienemann,10 we affirmed the dismissal
of a petition for allowance of a probate claim that was filed
outside of the 60-day period specified in § 30-2488(a) and
rejected an argument that an additional 3-day period for mail-
ing should be allowed pursuant to Neb. Rev. Stat. § 25-534
(Reissue 1995). Agreeing with the reasoning of another court
which had construed the term “barred” as used in a simi-
lar probate statute to mean that the claim no longer existed
after the 60-day period had expired, we held that “the plain
language of § 30-2488(a) provides for the finality of the
personal representative’s decision 60 days after the mail-
ing of the notice of disallowance, whereupon the claim is
7 See, e.g., In re Estate of Reading, 261 Neb. 897, 626 N.W.2d 595 (2001).
8 See, Miller v. Regional West Med. Ctr., supra note 1; McClellan v. Board
of Equal. of Douglas Cty., supra note 3.
9 See, e.g., Neb. Rev. Stat. §§ 8-1721.01, 20-211, and 20-342 (Reissue
2007); Neb. Rev. Stat. §§ 25-205 to 25-210, 25-212, and 25-222 to 25-224
(Reissue 2008).
10 In re Estate of Lienemann, 277 Neb. 286, 761 N.W.2d 560 (2009).
424 	280 NEBRASKA REPORTS

barred.”11 Although our opinion did not specifically charac-
terize the 60-day filing period in § 30-2488(a) as a jurisdic-
tional requirement, we affirmed the order of the probate court
which sustained a motion to dismiss for lack of subject mat-
ter jurisdiction.
We are not persuaded by Tri Valley’s argument that Neb.
Rev. Stat. § 30-2486(3) (Reissue 2008) authorized it to file
the petition outside the 60-day period of § 30-2488(a). Section
30-2486(3) can permit additional time when a claim is con-
tingent, unliquidated, or not presently due. it is clear from
this record that the amount claimed by Tri Valley for medical
services provided to Hockemeier was due and owing at the
time of her death. The time payment contract was simply an
accommodation to permit Hockemeier to pay the amount due
in monthly installments without interest during her lifetime.
[5] We hold that where a properly presented claim against
an estate is disallowed by a personal representative pursuant to
§ 30-2488(a) and notice of a pending bar is given as provided
therein, the filing of a petition for judicial allowance of the
claim within the 60-day period specified in § 30-2488(a) is a
jurisdictional requirement. Because that requirement was not
met in this case, the claim was barred and no longer existed
by the time the petition for allowance was eventually filed, and
the county court therefore lacked jurisdiction over the subject
matter of the petition. And because the county court lacked
jurisdiction, we are without jurisdiction to consider the merits
of the appeal.12
CONCLUSiON
For the reasons discussed, we reverse and vacate the order
of the county court and remand the cause with directions to
dismiss the petition for allowance of the claim.
reVersed and VaCated, and Cause remanded
WItH dIreCtIons to dIsmIss.
11 Id. at 291, 761 N.W.2d at 564. See Mathieson v. Hubler, 92 N.M. 381, 588
P.2d 1056 (N.M. App. 1978).
12 See Wasikowski v. Nebraska Quality Jobs Bd., 264 Neb. 403, 648 N.W.2d
756 (2002).
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Cite as 280 Neb. 420