Correa v. Estate of Hascall

662 	288 NEBRASKA REPORTS
G loria C orrea, appellant, v. estate of e. D ean H asCall,
DeCeaseD, anD neomi D. H asCall, as personal
representative of tHe estate of
e. D ean H asCall, appellees.
850 N.W.2d 770
Filed July 25, 2014. 	No. S-13-749.
1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional
questions that do not involve a factual dispute as a matter of law.
2. Decedents’ Estates: Executors and Administrators: Statutes. Because a per-
sonal representative is not a natural person, but 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.
3. Limitations of Actions: Dismissal and Nonsuit. Under Neb. Rev. Stat. § 25-217
(Reissue 2008), an action is commenced on the date the complaint is filed with
the court, but is dismissed without prejudice as to any defendant not served
within 6 months from the date the complaint was filed.
4. Limitations of Actions. Under certain situations as set forth in Neb. Rev. Stat.
§ 25-201.02 (Reissue 2008), an amended complaint may relate back to the com-
mencement date of an earlier complaint.
Appeal from the District Court for Sarpy County: William
B. Z astera, Judge. Appeal dismissed.
Patrick E. McNamara and Ryan M. Hoffman, of Anderson,
Bressman & Hoffman Law Firm, P.C., L.L.O., for appellant.
Karen Weinhold, of Engles, Ketcham, Olson & Keith, P.C.,
for appellees.
H eaviCan, C.J., WriGHt, C onnolly, stepHan, miller-lerman,
and Cassel, JJ.
H eaviCan, C.J.
INTRODUCTION
Gloria Correa filed this negligence action against the estate
of the decedent, E. Dean Hascall (Hascall), and the estate’s
personal representative, Neomi D. Hascall. The district court
granted the estate’s motion for summary judgment and denied
Correa’s motion for leave to file an amended complaint.
Correa appeals. We conclude that the district court lacked
jurisdiction over these motions and that likewise, this court
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:35 AM CST

CORREA v. ESTATE OF HASCALL 	663
Cite as 288 Neb. 662
lacks jurisdiction over Correa’s appeal. Accordingly, we dis-
miss the appeal.
BACKGROUND
Correa and Hascall were involved in a motor vehicle acci-
dent in Sarpy County, Nebraska, on September 17, 2008.
Hascall died on November 16, 2008, apparently of causes unre-
lated to the accident with Correa.
Hascall’s death prompted the opening of his estate. On
October 19, 2009, Hascall’s widow, Neomi, was appointed
personal representative of the estate. The estate was closed on
September 24, 2010. Neomi was discharged as personal repre-
sentative on September 1, 2011.
On September 14, 2012, Correa filed a complaint alleging
Hascall’s negligence in the September 17, 2008, accident. The
complaint was served on the estate and Neomi on November 7,
2012. In their amended answer, filed April 5, 2013, the estate
and Neomi alleged several affirmative defenses, including that
Correa’s suit failed to state a cause of action upon which relief
could be granted, because an action could not be brought
against an estate that had been closed or a personal representa-
tive that had been discharged.
On May 17, 2013, the estate and Neomi filed for summary
judgment. On June 17, Correa’s motion for an emergency order
reopening the estate and appointing a special administrator was
granted by the probate court. On that same day, Correa filed a
motion for leave to file an amended complaint.
A hearing was held on July 1, 2013, on both the motion for
summary judgment and the motion for leave to file an amended
complaint. The hearing began with counsel for Correa present-
ing arguments on the motion for leave to file an amended
complaint. Counsel for the estate and Neomi then presented
their motion for summary judgment, arguing that dismissal
would be appropriate because Correa filed suit against a closed
estate and a discharged personal representative. The district
court took the motion for leave to amend under advisement
and indicated that it would “reset the Motion for Summary
Judgment if necessary.” On July 30, the district court granted

664 	288 NEBRASKA REPORTS
the estate and Neomi’s motion for summary judgment and
denied as moot Correa’s motion for leave to amend.
ASSIGNMENTS OF ERROR
Correa assigns, renumbered, that the district court erred
in (1) denying Correa’s motion for leave to file an amended
complaint because all parties had notice of the claim; (2) deny-
ing Correa’s motion for leave to file an amended complaint
because the occurrence alleged in the amended complaint
arose out of the same occurrence as the original complaint;
(3) granting summary judgment without allowing Correa the
opportunity to oppose the motion for summary judgment; and
(4) granting summary judgment because Hascall’s insurer,
State Farm, was equitably estopped from asserting the service
of process issue.
STANDARD OF REVIEW
[1] An appellate court determines jurisdictional questions
that do not involve a factual dispute as a matter of law.1
ANALYSIS
explanation of UnDerlyinG laW
We begin with an explanation of the underlying law govern-
ing this issue. Neb. Rev. Stat. § 30-2486 (Reissue 2008) sets
forth the manner of presentation of a claim against a decedent’s
estate and states in part:
Claims against a decedent’s estate may be presented
as follows:
(1) 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 contingent or unliquidated, the nature of the
uncertainty shall be stated. If the claim is secured, the
security shall be described. Failure to describe correctly
1 Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).

CORREA v. ESTATE OF HASCALL 	665
Cite as 288 Neb. 662
the security, the nature of any uncertainty, and the due
date of a claim not yet due does not invalidate the pres-
entation made.
(2) The claimant may commence a proceeding against
the personal representative in any court which has sub-
ject matter jurisdiction and the personal representative
may be subjected to jurisdiction, to obtain payment of
his or her claim against the estate, but the commence-
ment of the proceeding must occur within the time lim-
ited for presenting the claim. No presentation of claim
is required in regard to matters claimed in proceedings
against the decedent which were pending at the time of
his or her death.
Neb. Rev. Stat. § 30-2485 (Reissue 2008) sets forth time
limitations on the presentation of claims:
(a) All claims against a decedent’s estate which arose
before the death of the decedent, including claims of
the state and any subdivision thereof, whether due or to
become due, absolute or contingent, liquidated or unliq-
uidated, founded on contract, tort, or other legal basis,
if not barred earlier by other statute of limitations, are
barred against the estate, the personal representative, and
the heirs and devisees of the decedent, unless presented
as follows:
(1) Within two months after the date of the first publi-
cation of notice to creditors if notice is given in compli-
ance with sections 25-520.01 and 30-2483, except that
claims barred by the nonclaim statute at the decedent’s
domicile before the first publication for claims in this
state are also barred in this state. If any creditor has a
claim against a decedent’s estate which arose before the
death of the decedent and which was not presented within
the time allowed by this subdivision, including any credi-
tor who did not receive notice, such creditor may apply
to the court within sixty days after the expiration date
provided in this subdivision for additional time and the
court, upon good cause shown, may allow further time
not to exceed thirty days;

666 	288 NEBRASKA REPORTS
(2) Within three years after the decedent’s death if
notice to creditors has not been given in compliance with
sections 25-520.01 and 30-2483.
. . . .
(c) Nothing in this section affects or prevents:
(1) Any proceeding to enforce any mortgage, pledge, or
other lien upon property of the estate; or
(2) To the limits of the insurance protection only, any
proceeding to establish liability of the decedent or the
personal representative for which he or she is protected
by liability insurance.
Under § 30-2485(a), Correa would, at most, be allowed 3
years, or by November 16, 2011, to file a claim against Dean’s
estate. No claim was filed during this time period; indeed, this
lawsuit was not filed until September 14, 2012. For these rea-
sons, any “claim” against the estate is untimely.
[2] Instead, Correa filed her negligence action in the district
court. But she sued the estate, which had closed, and the per-
sonal representative, who had been discharged. The Nebraska
Court of Appeals has held in a similar circumstance that a
claimant could not institute proceedings against a discharged
personal representative while an estate was closed. The Court
of Appeals 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 dis-
charged, there is no viable entity or person to sue, because
the tortfeasor is deceased, his or her estate is closed, and
there is no longer a personal representative.2
We agree, and conclude that Correa failed to properly bring
suit against the estate or the personal representative, because
the estate had been closed and the personal representative had
been discharged.
2 Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 466, 825 N.W.2d 224,
231 (2013). Cf., Babbit v. Hronik, 261 Neb. 513, 623 N.W.2d 700 (2001);
Mach v. Schumer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).

CORREA v. ESTATE OF HASCALL 	667
Cite as 288 Neb. 662
No doubt understanding her legal position, Correa filed an
emergency motion to reopen the estate and assign a special
administrator for purposes of service, which was granted. The
newly appointed special administrator was served with the
complaint on June 28, 2013.
[3] But this was insufficient to save Correa’s suit. Under
Neb. Rev. Stat. § 25-217 (Reissue 2008), “[a]n action is com-
menced on the date the complaint is filed with the court,” but
“shall stand dismissed without prejudice as to any defendant
not served within six months from the date the complaint was
filed.” In this case, Correa’s suit was not served on the new
special administrator within 6 months, or by March 14, 2013,
and thus it stood dismissed without prejudice. The district
court lacked jurisdiction over Correa’s subsequent motions,
and this court lacks jurisdiction over Correa’s appeal. However,
we read Correa as arguing that the district court, and now
this court, had jurisdiction because her amended complaint
related back to her original complaint. We therefore address
Correa’s specific assignments of error insofar as they speak to
that contention.
relation -BaCk D oCtrine
In her first and second assignments of error, Correa argues
that the district court erred in denying her motion for leave to
file an amended complaint, because all parties had notice of
the claim and because it was essentially the same claim as in
the original complaint. Central to these arguments is Correa’s
contention that her amended complaint should “relate back” to
the date of her original complaint.
[4] Neb. Rev. Stat. § 25-201.02 (Reissue 2008) addresses
the amendment of pleadings and the effect of that amendment:
(1) An amendment of a pleading that does not change
the party or the name of the party against whom the
claim is asserted relates back to the date of the original
pleading if the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occur-
rence set forth or attempted to be set forth in the origi-
nal pleading.

668 	288 NEBRASKA REPORTS
(2) If the amendment changes the party or the name of
the party against whom a claim is asserted, the amend-
ment relates back to the date of the original pleading if
(a) the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original plead-
ing, and (b) within the period provided for commencing
an action the party against whom the claim is asserted
by the amended pleading (i) received notice of the action
such that the party will not be prejudiced in maintain-
ing a defense on the merits and (ii) knew or should have
known that, but for a mistake concerning the identity
of the proper party, the action would have been brought
against the party.
Correa argues that because the allegations in the amended
complaint arise from the same basic allegations from the com-
plaint, and because the estate and Neomi received notice and
knew or should have known of Correa’s mistake concerning
the identity of the proper party, her amended complaint relates
back to her complaint and would be timely.
As an initial matter, we note that § 25-201.02(1) is inappli-
cable here. That subsection deals with the scenario wherein the
amendment does not change the name of the party. But here,
the newly appointed special administrator was substituted for
Neomi in the proposed amended complaint, and thus the party
name was changed.
Nor can § 25-201.02(2) save Correa’s amended complaint.
Section 25-201.02(2)(b) requires that notice of the original
action must be received by the party against whom the claim is
asserted within the period provided for commencing an action.
At the time of the original complaint, Neomi, the discharged
personal representative, was sued. But the newly appointed
special administrator was not served at that time and received
no notice until June 28, 2013, at a time when Correa’s suit had
already been dismissed by operation of law. Any notice to the
new special administrator was not received within the “period
provided for commencing an action.”
Correa’s argument simply overlooks the realities of the
operation of § 25-217. This section is self-executing and acts

CORREA v. ESTATE OF HASCALL 	669
Cite as 288 Neb. 662
to dismiss without prejudice any action not served within 6
months of its filing. As of March 14, 2013, 6 months after its
filing, Correa’s suit was dismissed by operation of law. The
newly appointed special administrator was not served until
June 28, 2013. But that service was of the now-dismissed com-
plaint. Any amended complaint would have nothing to relate
back to.
Correa’s arguments regarding the relation-back doctrine and
notice are without merit, as are her first and second assign-
ments of error. We need not reach Correa’s third assign-
ment error, as the district court lacked jurisdiction over the
motion for summary judgment and motion for leave to file an
amended petition.
state farm’s aCtions
In her fourth and final assignment of error, Correa con-
tends that State Farm, Dean’s insurance carrier, was deceitful
in engaging in settlement negotiations with her for nearly 6
months and that equitable estoppel bars them from raising
the service issue after it was too late for Correa to correct it.
Correa cites to Olsen v. Olsen3 for the proposition that one
cannot use the statute of limitations as a defense after his or
her own promises and representations led to the delay in filing
the action.
We first note that State Farm is not a party here. Further,
we have no evidence regarding the nature of the negotiations
between Correa and State Farm; instead, we have only Correa’s
allegations about those negotiations as made at the July 1,
2013, hearing and in her brief.
In any case, Correa’s reliance on Olsen is not persuasive.
The defendant in Olsen, the plaintiff’s ex-husband, repeat-
edly and continuously over a period of years, indicated that he
would sign the mineral deed at issue. We do not have any such
pattern of deceit in the record in this case.
It appears that Correa allowed the estate and Neomi extra
time to file an answer. While suit was filed on September 14,
2012, and “service” was completed on November 7, the estate
3 Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003).

670 	288 NEBRASKA REPORTS
and Neomi did not file an answer until March 29, 2013, with
an amended answer filed April 5. While Correa sees this action
as deceitful, on these facts we cannot agree. There is no evi-
dence that the estate, Neomi, or State Farm acted to prevent
Correa from correcting the defect in service by reopening the
estate and having a special administrator appointed.
Correa’s fourth and final assignment of error is without
merit.
CONCLUSION
Because the special administrator was not served within 6
months of the commencement of the action, the district court
lacked jurisdiction over Correa’s claims. Likewise, this court
lacks jurisdiction over Correa’s appeal. The appeal is there-
fore dismissed.
appeal DismisseD.
mCC ormaCk, J., not participating.
state of neBraska, appellee, v.
Jeffrey a. H essler, appellant.
850 N.W.2d 777
Filed July 25, 2014. 	No. S-13-850.
1. Postconviction: Proof: Appeal and Error. A defendant requesting postconvic-
tion relief must establish the basis for such relief, and the findings of the district
court will not be disturbed unless they are clearly erroneous.
2. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion
for postconviction relief must be granted when the motion contains factual alle-
gations which, if proved, constitute an infringement of the movant’s rights under
the Nebraska or federal Constitution. However, if the motion alleges only conclu-
sions of fact or law, or the records and files in the case affirmatively show that
the movant is entitled to no relief, no evidentiary hearing is required.
3. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a
postconviction proceeding is procedurally barred is a question of law. When
reviewing a question of law, an appellate court reaches a conclusion independent
of the lower court’s ruling.
4. Appeal and Error. An appellate court does not consider errors which are argued
but not assigned.