In re Estate of Stretesky , 29 Neb. Ct. App. 338 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/19/2021 09:07 AM CST
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IN RE ESTATE OF STRETESKY
Cite as 29 Neb. App. 338In re Estate of Neil S.
Stretesky, deceased.
Michael Hutchinson et al., appellees,
v. The William Stretesky
Foundation, appellant.
___ N.W.2d ___
Filed January 12, 2021. No. A-19-1077.
1. Decedents’ Estates: Appeal and Error. An appeal from the county
court’s allowance or disallowance of a claim in probate will be heard as
an appeal from an action at law.
2. Decedents’ Estates: Judgments: Appeal and Error. When reviewing
questions of law in a probate matter, an appellate court reaches a conclu-
sion independent of the determination reached by the court below.
3. Judgments: Issue Preclusion. Issue preclusion applies where (1) an
identical issue was decided in a prior action, (2) the prior action resulted
in a final judgment on the merits, (3) the party against whom the doc-
trine is to be applied was a party or was in privity with a party to the
prior action, and (4) there was an opportunity to fully and fairly litigate
the issue in the prior action.
4. Courts: Jurisdiction. County courts are statutorily created courts which
possess limited jurisdiction.
5. Courts: Jurisdiction: Legislature. County courts can acquire jurisdic-
tion only through a specific legislative mandate as a result of legisla-
tive enactment.
Appeal from the County Court for Deuel County: Randin
R. Roland, Judge. Affirmed.
R. Kevin O’Donnell, of Law Office of R. Kevin O’Donnell,
P.C., L.L.O., for appellant.
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IN RE ESTATE OF STRETESKY
Cite as 29 Neb. App. 338Brock D. Wurl, of Paloucek, Herman & Wurl Law Offices,
and Randy C. Fair, of Dudden & Fair, P.C., L.L.O., for appellees.
Pirtle, Chief Judge, and Moore and Riedmann, Judges.
Pirtle, Chief Judge.
INTRODUCTION
The William Stretesky Foundation (the Foundation) appeals
from an order of the Deuel County Court which determined
that the Foundation did not have a lien against Neil S.
Stretesky’s property at the time of his death and therefore
denied the Foundation’s petition for enforcement of claim to
collect its judgment against Stretesky’s estate. Based on the
reasons that follow, we affirm.
BACKGROUND
In December 2014, the Foundation filed a complaint for res-
titution of premises in Deuel County Court against Stretesky,
who was a tenant on certain real property owned by the
Foundation. In January 2015, the county court entered an
order in favor of the Foundation, ordering Stretesky to vacate
the property. The issue of damages was to be determined at
a later date. Prior to the determination of damages, the mat-
ter was moved to the district court for Deuel County (case
No. CI 15-004) because the requested damages exceeded the
statutory monetary jurisdiction of the county court.
On December 3, 2015, Stretesky was shot and killed by
law enforcement after he shot Deuel County Deputy Sheriff
Michael Hutchinson. On December 8, the Foundation filed
a motion for revivor and suggestion of death, asking that
the action be revived against the personal representative of
Stretesky’s estate. The district court entered an order of revivor
substituting the personal representative as defendant in place
of Stretesky.
On February 11, 2016, the Foundation filed a statement
of claim in the county court against Stretesky’s estate (case
No. PR 15-010), which stated that damages would be deter-
mined in case No. CI 15-004 in district court.
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IN RE ESTATE OF STRETESKY
Cite as 29 Neb. App. 338On March 18, 2016, following a trial to determine damages
arising out of the Foundation’s December 2014 complaint,
the district court entered an order in case No. CI 15-004. It
divided stored grain between the Foundation and Stretesky,
as set forth in the lease, and awarded the Foundation dam-
ages for expenses it had paid that should have been paid by
Stretesky under the lease agreement. The district court awarded
Stretesky crop insurance proceeds that were being held by the
Ray Insurance Agency, an agent for Heartland Crop Insurance.
It noted that the Foundation had sought a lien against this inter-
est of Stretesky to preserve its ability to recover any judgment
entered against Stretesky. In regard to the Foundation’s request
for a lien against the crop insurance proceeds, the district
court stated:
As to the proceeds of the crop insurance payoff being
held by the Ray [Insurance] Agency, the entry of this
Order may create a judgment lien and [the Foundation]
may pursue the same as it sees fit. . . .
....
The Court further finds that the entry of this judg-
ment may create a judgment lien for the benefit of [the
Foundation], but it shall be [the Foundation’s] respon-
sibility to pursue attachment of personal property and
execution of this judgment as it sees fit.
The district court subsequently entered an amended order
altering the amount of damages awarded for one specific
item. All other provisions in the March 18, 2016, order were
to remain in full force and effect. The Foundation obtained a
judgment in the amount of $53,816.01.
On July 25, 2016, the Foundation filed a partial satisfac-
tion of judgment in case No. CI 15-004 after it received a
check in the amount of $23,468.10 for stored grain. It stated
that Stretesky still owed it the balance of the judgment in the
amount of $30,347.91 plus interest.
On December 6, 2018, the court entered an order allow-
ing Heartland Crop Insurance to deposit crop insurance
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IN RE ESTATE OF STRETESKY
Cite as 29 Neb. App. 338proceeds in the sum of $43,788 with the clerk of the Deuel
County Court and discharged Heartland Crop Insurance from
any ­further responsibility.
On August 30, 2019, the Foundation filed a petition for
enforcement of claim against Stretesky’s estate, asking the
county court to allow it to enforce its lien and satisfy the lien
balance of $30,347.91 out of the crop insurance proceeds pre-
viously deposited with the county court by Heartland Crop
Insurance.
Hutchinson filed an objection to the Foundation’s petition
for enforcement of claim and his own petition for enforce-
ment of claim. He objected to the court’s ordering disburse-
ment of any funds in the estate until all parties having a
claim had been heard, arguing that he was entitled to have his
damages resulting from injuries caused by Stretesky paid by
Stretesky’s estate.
On October 24, 2019, the county court denied the
Foundation’s petition for enforcement of claim. The county
court concluded that although the Foundation had litigation
pending against Stretesky at the time of his death, it did not
have a judgment or a lien against Stretesky’s property at the
time of his death.
ASSIGNMENTS OF ERROR
The Foundation assigns that (1) the county court erred in its
interpretation of McCook Nat. Bank v. Bennett, 248 Neb. 567,
537 N.W.2d 353 (1995); (2) the Deuel County District Court’s
award of a judgment and a judgment lien to the Foundation in
case No. CI 15-004 precluded the Deuel County Court in the
present case from making any findings in regard to the exis-
tence of a judgment lien; (3) the county court lacked subject
matter jurisdiction with regard to the application of judgment
liens because of issue preclusion; and (4) the county court
lacked subject matter jurisdiction with regard to judgment
liens, because there is no specific legislative mandate granting
such powers to county courts.
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IN RE ESTATE OF STRETESKY
Cite as 29 Neb. App. 338STANDARD OF REVIEW
[1] An appeal from the county court’s allowance or disal-
lowance of a claim in probate will be heard as an appeal
from an action at law. In re Trust of Margie E. Cook, 28 Neb.
App. 624, 947 N.W.2d 870 (2020).
[2] When reviewing questions of law in a probate mat-
ter, an appellate court reaches a conclusion independent of
the determination reached by the court below. In re Estate of
Odenreider, 286 Neb. 480, 837 N.W.2d 756 (2013).
ANALYSIS
McCook Nat. Bank Opinion.
The Foundation first argues that the court misinterpreted
the Nebraska Supreme Court’s findings in McCook Nat. Bank,
supra, in considering the Foundation’s claim. The Foundation
argued that McCook Nat. Bank supported its argument that it
held a lien against the crop insurance proceeds and that such
lien should be enforced outside of probate proceedings. The
county court did not agree.
In McCook Nat. Bank, supra, the bank obtained a judgment
against Edd Case and a judgment lien attached to real estate
owned by Case in Hitchcock County by operation of law.
Case died before satisfaction of the judgment. After Case’s
death, the action was revived against his personal representa-
tive. The bank sought to enforce the judgment lien against
proceeds from the sale of real estate Case owned at the time
of his death. The bank did not make a claim in the probate
proceedings pursuant to the Nebraska Probate Code. The
district court ordered proceeds from the sale of real estate
disbursed to the bank, the judgment lienholder. The personal
representative appealed, arguing that because the bank did not
make a claim in the probate proceedings, enforcement of the
lien was barred.
The Supreme Court affirmed the district court’s order, hold-
ing that the provisions of the Nebraska Probate Code explic-
itly exempt liens from the definition of both a claim and
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IN RE ESTATE OF STRETESKY
Cite as 29 Neb. App. 338a liability. McCook Nat. Bank, supra. It further held that a
judgment lien is not a claim and not subject to the provisions
of the Nebraska Probate Code. McCook Nat. Bank, supra. The
court therefore concluded that the judgment lien held by the
bank was not a claim under the Nebraska Probate Code and
that the bank, as the judgment debtor, was free to proceed in
the district court without filing a claim in the probate proceed-
ings. McCook Nat. Bank, supra.In the present case, the county court determined that this
case was distinguishable from McCook Nat. Bank v. Bennett,
248 Neb. 567, 537 N.W.2d 353 (1995), because the Foundation
did not have a judgment or judgment lien against Stretesky
prior to his death. The Foundation had litigation pending
against Stretesky at the time of his death, but the Foundation
did not obtain its judgment until after his death. Conversely, in
McCook Nat. Bank, the bank obtained a judgment against Case
when he was alive and he died before the bank was able to
satisfy its judgment lien.
The county court also relied on Neb. Rev. Stat. § 30-2494(Reissue 2016), one of the provisions of the Nebraska Probate
Code discussed in McCook Nat. Bank that explicitly excludes
liens. Section 30-2494 provides:
No execution may issue upon nor may any levy be
made against any property of the estate under any judg-
ment against a decedent or a personal representative, but
this section shall not be construed to prevent the enforce-
ment of mortgages, pledges or other liens existing at the
time of death upon real or personal property in an appro-
priate proceeding.
(Emphasis supplied.)
The court in McCook Nat. Bank v. Bennett, supra, stated
that based on § 30-2494, a judgment lien against the decedent
in existence prior to the death of the decedent also falls within
the exclusion of the Nebraska Probate Code. Section 30-2494,
however, allows for the enforcement of judgment liens exist-
ing at the time of death in other proceedings outside the pro-
bate proceedings.
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IN RE ESTATE OF STRETESKY
Cite as 29 Neb. App. 338When Stretesky died on December 3, 2015, the Foundation
did not have a judgment against him and, therefore, no
judgment lien against the crop insurance proceeds or any
property of Stretesky’s. Because the Foundation did not have a
judgment lien that existed prior to Stretesky’s death, it cannot
enforce a judgment lien outside of probate proceedings. We
conclude that the county court did not misinterpret McCook
Nat. Bank, supra. The present case is factually different and is
easily distinguished.
Issue Preclusion.
[3] In its second and third assignments of error, the
Foundation argues that the county court erred in making a
finding regarding the existence of a lien, because the district
court in case No. CI 15-004 had already made the determina-
tion that a lien did exist. It contends “the matter of judgment
and a judgment lien had been predetermined by the District
Court and should have been upheld by the County Court in
[the Foundation’s] Petition for Enforcement of the Lien.” Brief
for appellant at 14. In other words, the Foundation argues
that issue preclusion applies in this scenario. Issue preclusion
applies where (1) an identical issue was decided in a prior
action, (2) the prior action resulted in a final judgment on the
merits, (3) the party against whom the doctrine is to be applied
was a party or was in privity with a party to the prior action,
and (4) there was an opportunity to fully and fairly litigate the
issue in the prior action. Jordan v. LSF8 Master Participation
Trust, 300 Neb. 523, 915 N.W.2d 399 (2018). We need not
go any further than the first step before concluding that issue
preclusion is not applicable here. The issue of whether the
Foundation had a lien against Stretesky’s property was not
decided by the district court. The district court determined only
that the entry of the judgment in favor of the Foundation “may
create a judgment lien for the benefit of [the Foundation], but
it shall be [the Foundation’s] responsibility to pursue attach-
ment of personal property and execution of this judgment
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IN RE ESTATE OF STRETESKY
Cite as 29 Neb. App. 338as it sees fit.” It did not decide that the Foundation had a
judgment lien. Accordingly, we conclude that the Foundation’s
second and third assignments of error fail.
Subject Matter Jurisdiction.
[4,5] The Foundation assigns that the county court lacked
subject matter jurisdiction with regard to judgment liens,
because there is no specific legislative mandate granting such
powers to county courts. Relying on In re Estate of Evertson,
295 Neb. 301, 889 N.W.2d 73 (2016), the Foundation points
out that county courts are statutorily created courts which
possess limited jurisdiction. County courts can acquire juris-
diction only through a specific legislative mandate as a result
of legislative enactment. Id. The Foundation argues that there
are no statutes that specifically enumerate the right of county
courts to rule on judgment liens. It suggests that the argument
can be made that because McCook Nat. Bank v. Bennett, 248
Neb. 567, 537 N.W.2d 353 (1995), specifically excluded judg-
ment liens from the Nebraska Probate Code application, county
courts are therefore excluded from making any determinations
regarding judgment liens.
We conclude that the county court had subject matter juris-
diction to determine that no lien existed prior to Stretesky’s
death and to enter its October 24, 2019, order denying the
Foundation’s petition for enforcement of claim. Neb. Rev.
Stat. § 24-517(1) (Reissue 2016) gives county courts exclusive
original jurisdiction of all matters relating to decedents’ estates.
This is a matter relating to Stretesky’s estate. This final assign-
ment of error fails.
CONCLUSION
For the reasons stated above, we affirm the county court’s
order denying the Foundation’s petition for enforcement
of claim.
Affirmed.