In re Estate of Lienemann

I n re estate of D onalD H. lIenemann, DeceaseD.
rutH l. lIenemann, P ersonal rePresentatIve of tHe estate
of D onalD H. lIenemann, DeceaseD, aPPellee ,
v. Jean HIllyer , aPPellant.
761 N.W.2d 560
Filed February 27, 2009. 	No. S-07-1340.
1. Statutes: Appeal and Error. The interpretation of statutes presents questions of
law, in connection with which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court below.
2. Statutes. A court must attempt to give effect to all parts of a statute, and if it
can be avoided, no word, clause, or sentence will be rejected as superfluous
or meaningless.
3. Statutes: Appeal and Error. An appellate court will not read anything plain,
direct, or unambiguous out of a statute.
Appeal from the District Court for Sarpy County: WIllIam
B. Z astera, Judge. Affirmed.
Roger R. Holthaus, of Holthaus Law Offices, P.C., L.L.O.,
for appellant.
Robert C. McGowan, Jr., of McGowan & McGowan, for
appellee.
H eavIcan, c.J., connolly, G errarD, stePHan, mccormack ,
and mIller-lerman, JJ.
mIller-lerman, J.
NATURE OF CASE
Jean Hillyer appeals the order of the district court for Sarpy
County which dismissed her petition for allowance of a claim
against the estate of Donald H. Lienemann (Estate). The court
dismissed Hillyer’s petition as barred for the reason that it
was filed “61 days after the date of mailing the Notice of
Disallowance.” In making its ruling, the court relied on Neb.
Rev. Stat. § 30-2488(a) (Reissue 2008), which provides that
a claim which is disallowed “by the personal representative is
barred . . . 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.” On appeal, Hillyer asks this court to
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extend the 60-day requirement under § 30-2488 by 3 days due
to mailing, pursuant to Neb. Rev. Stat. § 25-534 (Reissue 1995)
(now found at Neb. Ct. R. Pldg. § 6-1106(e)) and to conclude
that her petition was timely filed. We reject Hillyer’s argument
and conclude that the district court’s ruling was correct as a
matter of law, and we, therefore, affirm.
STATEMENT OF FACTS
On March 28, 2007, Hillyer filed a claim for $77,000 in
the Sarpy County Court proceedings related to the Estate. On
July 27, the personal representative of the Estate mailed to
Hillyer a notice of disallowance of two claims, including the
claim for $77,000. The notice included, inter alia, the follow-
ing language: “Failure to protest either disallowance of claim
by filing a petition for allowance, or commencing a proceeding
against the personal representative regarding one or the other,
or both claims within sixty days after the mailing of this notice
shall result in the disallowed claims being forever barred.” The
notice included the personal representative’s certification that
the notice was mailed to Hillyer on July 27.
On September 26, 2007, Hillyer filed a petition for allow-
ance of the claim for $77,000 in the county court for Sarpy
County. The petition was subsequently transferred to the dis-
trict court, apparently pursuant to § 30-2488(b), which allows
for transfer at the personal representative’s request.
The Estate filed a motion to dismiss pursuant to what is
now codified as Neb. Ct. R. Pldg. § 6-1112(b)(1) (subject mat-
ter jurisdiction) and argued that Hillyer’s petition was barred
because it was not filed within the time limit set forth in
§ 30-2488(a), which provides in part:
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 or partial allowance if the
notice warns the claimant of the impending bar.
The Estate argued that because the notice of disallowance was
mailed on July 27, 2007, and warned of the impending bar, the
IN RE ESTATE OF LIENEMANN 	287
Cite as 277 Neb. 286

60 days within which Hillyer was required to file a petition for
allowance ended on September 25 and that therefore, the peti-
tion filed September 26 was not timely.
In response, Hillyer claimed that she was entitled to 63 days
to file the petition after the date the Estate mailed the notice
of disallowance and that therefore, her petition for allowance
was timely. In support of the argument that she had an addi-
tional 3 days within which to file the petition, Hillyer relied on
§ 25-534, which provided that in certain circumstances when
service is made by mail, 3 days shall be added to the time
within which action must be taken.
The district court agreed with the Estate’s argument that the
petition for allowance was required to be filed within 60 days
after the mailing of the notice of disallowance, pursuant to the
explicit language of § 30-2488(a). The court therefore sus-
tained the Estate’s motion to dismiss and dismissed Hillyer’s
petition. Hillyer appeals.
ASSIGNMENTS OF ERROR
Hillyer asserts that the district court erred in failing to add
the 3 days found in § 25-534 to the time during which she
had to file her claim and in concluding that her claim was not
timely filed under § 30-2488(a).
STANDARDS OF REVIEW
[1] The interpretation of statutes presents questions of law,
in connection with which an appellate court has an obligation
to reach an independent conclusion irrespective of the decision
made by the court below. Vokal v. Nebraska Acct. & Disclosure
Comm., 276 Neb. 988, 759 N.W.2d 75 (2009).
ANALYSIS
At issue in this appeal is whether the district court properly
rejected Hillyer’s argument that she was entitled to an addi-
tional 3 days and correctly dismissed her petition for allowance
of a claim against the Estate as barred. We conclude, as a mat-
ter of law, that the district court’s rulings were correct.
Section 30-2488(a) from the Nebraska Probate Code is criti-
cal to the resolution of this case. It provides as follows:
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As to claims presented in the manner described in sec-
tion 30-2486 within the time limit prescribed in section
30-2485, the personal representative may mail a notice to
any claimant stating that the claim has been disallowed.
If, after allowing or disallowing a claim, the personal
representative changes his or her decision concerning the
claim, he or she shall notify the claimant. The personal
representative may not change a disallowance of a claim
after the time for the claimant to file a petition for allow-
ance or to commence a proceeding on the claim has run
and the claim has been barred. Every claim which is dis-
allowed 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 pro-
ceeding against the personal representative not later than
sixty days after the mailing of the notice of disallowance
or partial allowance if the notice warns the claimant of
the impending bar. Failure of the personal representa-
tive to mail notice to a claimant of action on his or her
claim for sixty days after the time for original presenta-
tion of the claim has expired has the effect of a notice
of allowance.
Section 30-2488 is taken from the Uniform Probate Code.
The purpose of the similarly worded predecessor of this sec-
tion has been described as serving to “expedite the settlement
of the estates of decedents.” In Re: Estate of J. B. Jeffries, 136
Fla. 410, 417, 181 So. 833, 837 (1938). More recently, the
purpose of this section of the probate code has been described
as “promoting a speedy and efficient system for the settlement
of estates.” Mathieson v. Hubler, 92 N.M. 381, 394, 588 P.2d
1056, 1069 (N.M. App. 1978).
Consistent with 	its 	language 	and 	expeditious objective,
§ 30-2488(a) provides that a disallowed claim is “barred”
unless a petition for allowance is filed or a proceeding com-
menced “not later than” 60 days after the mailing of notice of
disallowance. Interpreting a statute similar to § 30-2488, the
New Mexico Court of Appeals noted that “‘[b]arred’” as used
in the statute “means a barrier, which if interposed, prevents
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Cite as 277 Neb. 286

legal redress or recovery.” Mathieson, 92 N.M. at 394, 588 P.2d
at 1069 (citing black’s Law Dictionary (4th ed. 1951)).
[2,3] If the time after the expiration of the 60 days is
extended, as urged by Hillyer, then “barred” in § 30-2488(a)
would become meaningless and of no effect as a “barrier.”
A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be
rejected as superfluous or meaningless. Niemoller v. City of
Papillion, 276 Neb. 40, 752 N.W.2d 132 (2008). We will not
read anything plain, direct, or unambiguous out of a statute.
City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d
792 (2007).
Hillyer asks this court to ignore the “barred” nature of her
claim and, nevertheless, extend for 3 days the time for fil-
ing a petition for allowance of a claim based on the fact that
she received the notice of disallowance by mail. Hillyer relies
on the 3-day extension found in § 25-534, which provided
in part:
Whenever a party has the right or is required to do
some act or take some proceedings within a prescribed
period after the service of a notice or other paper upon
him or her and the notice or paper is served upon him
or her by mail, three days shall be added to the pre-
scribed period.
One court rejecting a similar argument reasoned that, given the
“barred” nature of the claim 60 days after mailing, the claim
“‘no longer exists, [and] that which has terminated, cannot be
extended.’” Mathieson, 92 N.M. at 394, 588 P.2d at 1069. We
agree with this reasoning.
In further support of her argument urging us to add a “three-
day grace period,” brief for appellant at 7, Hillyer refers us
to Schwarz v. Platte Valley Exterminating, 258 Neb. 841, 606
N.W.2d 85 (2000), and Roubal v. State, 14 Neb. App. 554, 710
N.W.2d 359 (2006). In Schwarz, we acknowledged the propri-
ety of adding 3 days to the time to respond to interrogatories
which had been served by mail. In Roubal, in its discussion
of the timeliness of a petition for review in an Administrative
Procedure Act case, the Court of Appeals approved of the
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addition of 3 days due to service by mail, based on the statu-
tory language providing for filing a petition “‘within thirty
days after the service’” of the decision. 14 Neb. App. at 556,
710 N.W.2d at 361 (emphasis omitted). See Neb. Rev. Stat.
§ 84-917(2)(a) (Reissue 2008).
We distinguish Schwarz and Roubal by noting that in both
cases, 3 days was added to the performance of the act in ques-
tion, because the statutory period for acting was after service;
whereas under the precise language of § 30-2488(a) at issue
here, a claimant must act within 60 days after mailing of the
notice. We find it unwarranted and not sensible to add 3 days
due to mailing to a statute which explicitly states an action is
barred “sixty days after the mailing.”
Taken as a whole, the plain language of § 30-2488(a)
provides for the finality of the personal representative’s deci-
sion 60 days after the mailing of the notice of disallowance,
whereupon the claim is barred. We believe the Legislature
chose to use a date of mailing to denote the date from which
to measure when an action on the claim would be barred,
and we respect such choice. See Geddes v. York County, 273
Neb. 271, 277, 729 N.W.2d 661, 666 (2007) (acknowledg-
ing in a Political Subdivisions Tort Claims Act case that “the
Legislature chose to use a date of mailing”). We are not at
liberty to ignore the very specific statutory mailing provision
and treat it as though it were a generalized service provision,
as urged by Hillyer.
For completeness, we note that the “sixty days after the
mailing” provision found in § 30-2488(a), which is based on
the 60-day Uniform Probate Code provision, has received
attention by state legislatures elsewhere. Thus, in Michigan, for
example, the statute comparable to § 30-2488(a) provides that
the disallowed claim stands barred “unless the claimant com-
mences a proceeding against the trustee not later than 63 days
after the mailing of the notice of disallowance.” Mich. Comp.
Laws Ann. § 700.7507(a) (West 2002). Unlike Michigan, the
Nebraska Legislature has not added an additional 3 days; given
the language of § 30-2488(a), we reject Hillyer’s request that
we do so.
IN RE ESTATE OF LIENEMANN 	291
Cite as 277 Neb. 286

CONCLUSION
The district court correctly ruled as a matter of law that
under § 30-2488(a), Hillyer’s petition for allowance of a claim
was barred and correctly dismissed the petition. We affirm.
affIrmeD.
WrIGHt, J., participating on briefs.
Jeffrey l. stueve , aPPellee , anD roBert G. krafka ,
aPPellant, v. valmont I nDustrIes , aPPellee .
761 N.W.2d 544
Filed February 27, 2009. 	No. S-08-397.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev. Stat.
§ 48-185 (Reissue 2008), an appellate court may modify, reverse, or set aside
a Workers’ Compensation Court decision only when (1) the compensation court
acted without or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evidence in the record to
warrant the making of the order, judgment, or award; or (4) the findings of fact
by the compensation court did not support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court review panel, a higher appellate
court reviews the findings of fact of the single judge who conducted the original
hearing; the findings of fact of the single judge will not be disturbed on appeal
unless clearly wrong.
3. ____: ____. An appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law.
4. Workers’ Compensation: Jurisdiction: Statutes. As a statutorily created court,
the Workers’ Compensation Court is a tribunal of limited and special jurisdiction
and has only such authority as has been conferred on it by statute.
5. Workers’ Compensation: Attorney Fees. The power of the Workers’
Compensation Court to resolve attorney fee disputes is derived from Neb. Rev.
Stat. § 48-108 (Reissue 2008).
6. ____: ____. The Workers’ Compensation Court is an appropriate forum for deter-
mining fees payable to a claimant’s current or prior attorney for services that the
attorney rendered while representing the claimant before the court.
7. Attorney Fees. When an attorney’s services are terminated prior to the comple-
tion of representation, the attorney is entitled to the reasonable value of his or her
services rendered up to the time of termination.
8. Attorney Fees: Contracts. An attorney fee contract is not enforceable in the
absence of a showing that the amount of the claimed fee is reasonable.
292 	277 NEbRASkA REPORTS