In re Estate of Filsinger , 29 Neb. Ct. App. 809 ( 2021 )

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05/11/2021 09:10 AM CDT
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809In re Estate of Orville W.
Filsinger, deceased.
Marvin O. Filsinger et al., appellants and
cross-appellees, v. Robert Rauner, Jr., Personal
Representative of the Estate of Orville W.
Filsinger, deceased, appellee
and cross-appellant.
___ N.W.2d ___
Filed May 4, 2021. No. A-20-347.
1. Appeal and Error. An appellate court does not consider an argument or
legal theory raised for the first time on appeal.
2. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as a matter
of law.
3. ____: ____. In reviewing a lower court’s grant of summary judgment,
an appellate court views the evidence in the light most favorable to the
party against whom the judgment was granted, giving that party the
benefit of all reasonable inferences deducible from the evidence.
4. Limitations of Actions: Appeal and Error. Which statute of limitations
applies is a question of law that an appellate court must decide indepen-
dently of the conclusion reached by the trial court.
5. Decedents’ Estates: Appeal and Error. An appellate court reviews pro-
bate cases for error appearing on the record made in the county court.
6. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable.
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 8097. Decedents’ Estates. As a fiduciary, the personal representative is
required to make a full disclosure of all facts within his knowledge
that are material for the beneficiaries to know so that they can protect
their interest.
8. Decedents’ Estates: Wills. The personal representative is under a duty
to settle and distribute the estate of the decedent in accordance with the
terms of any probated and effective will and the Nebraska Probate Code
as expeditiously and efficiently as is consistent with the best interests of
the estate.
9. Decedents’ Estates: Damages: Liability. If the personal representative
of an estate exercises his or her power improperly and damages the
estate or causes a loss as a result of the breach of fiduciary duty, then
the personal representative is liable to interested persons in the estate.
10. Decedents’ Estates. A devisee or claimant may proceed against a per-
sonal representative for breach of fiduciary duty under Neb. Rev. Stat.
§ 30-24,119 (Reissue 2016).
11. Decedents’ Estates: Limitations of Actions. Under the plain language
of Neb. Rev. Stat. § 30-24,119 (Reissue 2016), the claimant must bring
the action for breach of fiduciary duty within 6 months of the closing
statement’s being filed.
12. ____: ____. The statutory time bar found within Neb. Rev. Stat.
§ 30-24,119 (Reissue 2016) does not apply if the plaintiff is seeking to
recover from a personal representative for fraud, misrepresentation, or
inadequate disclosure related to the settlement of the decedent’s estate.
13. Decedents’ Estates: Appeal and Error. In interpreting the various sec-
tions of the Nebraska Probate Code, an appellate court may examine the
comments to the Uniform Probate Code.
14. Decedents’ Estates. A closing statement is an affirmation by the per-
sonal representative that he or she believes the affairs of the estate to
be completed.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
16. Decedents’ Estates: Fraud: Limitations of Actions. Neb. Rev. Stat.
§ 30-2206 (Reissue 2016) requires that an action in a probate case based
on fraud must be commenced within 2 years following the discovery of
the fraud.
17. Decedents’ Estates: Notice. If a personal representative files a peti-
tion for an order of complete settlement, he or she is required to give
all interested persons notice, consistent with Neb. Rev. Stat. § 30-2220(Reissue 2016), the general notice provision of the probate code.
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 80918. Trial: Evidence. Where reasonable minds could draw different conclu-
sions from the facts presented, a triable issue of material fact arises.
19. Jurisdiction: Appeal and Error. 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.
20. Jurisdiction: Final Orders: Time: Appeal and Error. An appellate
court has jurisdiction over final orders that are appealed within 30 days
from their entry.
21. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902(Cum. Supp. 2020), an appellate court may review an order that affects
a substantial right made during a special proceeding.
22. Decedents’ Estates: Final Orders. Proceedings under the Nebraska
Probate Code are special proceedings under Neb. Rev. Stat. § 25-1902(Cum. Supp. 2020).
23. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
24. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2020) include those legal rights that a party is entitled to enforce
or defend.
25. Final Orders: Appeal and Error. If a substantial right is affected, an
order is directly appealable as a final order even though it does not ter-
minate the action or constitute a final disposition of the case.
26. Decedents’ Estates: Final Orders: Claims: Fees. Fee orders in a pro-
bate case are made in a special proceeding; an order awarding a personal
representative fees affects a substantial right when it finally determines
the personal representative’s claim for reasonable compensation under
Neb. Rev. Stat. § 30-2480 (Reissue 2016).
Appeal from the County Court for Cheyenne County:
Russell W. Harford, Judge. Affirmed in part, and in part
dismissed.
Robert M. Brenner, of Robert M. Brenner Law Office, for
appellants.
Torrey J. Gerdes, J. Michael Hannon, and Randall L.
Goyette, of Baylor Evnen, L.L.P., and R. Kevin O’Donnell, of
Law Office of R. Kevin O’Donnell, P.C., L.L.O, for appellees.
Pirtle, Chief Judge, and Riedmann and Arterburn,
Judges.
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809Arterburn, Judge.
INTRODUCTION
Marvin O. Filsinger, Javonne Krueger, and Gloria Vegas (the
Claimants) appeal the order of the county court for Cheyenne
County, Nebraska, which granted summary judgment in favor
of Robert Rauner, Jr., the personal representative of the estate
of Orville W. Filsinger (the Personal Representative). The order
dismissed the claim filed by the Claimants against the Personal
Representative which challenged the amount distributed to
Orville’s wife, Berniece Filsinger. The Personal Representative
cross-appeals a separate order from the county court which
denied his claim for attorney fees and his renewed application
for attorney fees related to prior litigation. For the reasons set
forth herein, we affirm the order of the county court granting
summary judgment to the Personal Representative. We dismiss
the cross-appeal for lack of jurisdiction.
BACKGROUND
Orville died in September 2009 in Cheyenne County.
Pursuant to a provision found in the will signed by Orville in
December 2002, Rauner was nominated by both Marvin and
Berniece to be the Personal Representative. He accepted the
appointment. Orville’s will stated, as is relevant to this appeal,
that upon his death, Berniece would receive the personal resi-
dence where they resided; Orville’s personal effects, jewelry,
and tools; and a further sum of $1 million reduced by probate
or nonprobate transfers of real and personal property. The will
goes on to state:
It is my intent that in the event the total value of the real
estate and personal property owned in joint tenancy with
or payable on death to Berniece . . . or in which Berniece
. . . is a beneficiary, equals or exceeds One Million
Dollars ($1,000,000.00), that the said Berniece . . . not
receive any additional sums pursuant to this my Last Will
and Testament.
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809A postnuptial agreement signed by Orville and Berniece in
October 2002 mirrored the language of Orville’s will, stating
that Berniece would receive the personal residence of the par-
ties and the furniture, fixtures, and appliances in the property,
as well as Orville’s personal effects, jewelry, and tools upon
Orville’s death. The postnuptial agreement further mirrored his
will by also stating that Berniece would receive the further sum
of $1 million reduced by nonprobate transfers of real estate and
personal property. Orville signed a codicil to his will in April
2006; however, the codicil did not change the portions of the
will which are relevant to this appeal.
On August 10, 2010, the Personal Representative filed the
initial inventory of property owned by Orville at the time of his
death. This inventory disclosed that there was real and personal
property owned in joint tenancy with Berniece in the approxi-
mate amount of $1.8 million. The inventory also disclosed that
Berniece would receive a parcel of real property, commonly
referred to as the “Sunol Property.”
The Claimants are Orville’s children. Pursuant to the terms
of Orville’s will, they would receive the remainder of the
estate. After the Personal Representative’s appointment, he
communicated with the Claimants via letter explaining that
the Sunol Property would be a part of the estate. However,
the Personal Representative explained that Berniece would
disclaim her rights to this property but, in so doing, wished to
receive an assignment of the rights to a promissory note for a
loan that was given to a debtor known as the Andersons in the
amount of $25,000. The Personal Representative determined
that this was a reasonable request, in light of the value of the
Sunol Property, which was estimated to be $600,000. By virtue
of Berniece’s disclaimer, the Sunol Property would be devised
to the Claimants. Subsequent to this letter, a “Disclaimer and
Renunciation Pursuant to Agreement” executed by Berniece,
wherein she renounced all rights to the Sunol Property, was
filed on October 8, 2010.
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809After the filing of the disclaimer and renunciation, an
amended inventory was filed by the Personal Representative
on November 16, 2010, listing the nonprobate property Orville
had owned in joint tenancy with Berniece and valuing that
property at approximately $1.2 million. A second amended
inventory was later filed on December 7 showing that the value
of the nonprobate property Orville owned in joint tenancy with
Berniece was also approximately $1.2 million.
In July 2012, two of the Claimants, Krueger and Vegas
(then known as Gloria Haines), sent an electronic communi-
cation to the Personal Representative and his counsel stating
their concern regarding Orville’s estate and the distribution of
assets. In that communication, they asserted that their inter-
pretation of the postnuptial agreement and of Orville’s will
was that the distributions to Berniece were limited to a total
value of $1 million. They also stated that based on the account-
ing submitted to the county court at that time, the value of
Berniece’s distributions were $1,186,686. They contended that
after adding the life insurance policy and the loan made to the
Andersons, the total amount that Berniece would receive would
be $1,314,352. A response was sent to Krueger and Vegas by
Steven Matoon, then counsel for the Personal Representative.
Matoon expressed his opinion that the will and postnuptial
agreement did not place a $1 million maximum on the amount
Berniece could receive in total from all assets when nonpro-
bate transfers were considered. He also noted that Berniece
had renounced her claim to the Sunol Property in which she
had a joint tenancy interest, an action she was not required to
take. He noted that the Sunol Property was worth $587,000 and
would now be divided between the Claimants. Following this
exchange, our record reveals no further protest of the amount
received by Berniece until 2015.
In January 2014, the Personal Representative prepared a
formal petition for complete settlement after the informal tes-
tate proceeding (the Formal Petition), which was file stamped
by the county court on January 10, 2014. In the Formal
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809Petition, the Personal Representative affirmed the following:
He collected and managed the assets for the estate; he filed a
first inventory, second amended inventory, and final report; he
paid all lawful claims against the estate; he distributed assets
and proposed distribution of further assets as designated in
the schedule of distribution that was attached to the Formal
Petition; and there were no contingent, unliquidated, or future
claims against the estate. He also stated that the Nebraska
inheritance tax had been paid in full. He disclosed an addi-
tional asset, not previously inventoried, which was a promis-
sory note of $60,000 payable to Orville’s estate. He disclosed
that Berniece would receive, by virtue of joint tenancy owner-
ship and transfer and assignment of the promissory note of the
Andersons, at least $1 million. He asked the court to approve
the distributions made in the final report and in the schedule
of distribution. He also asked for the court to discharge him as
the personal representative.
That same day, January 10, 2014, the Personal Representative
also submitted a final report. In the final report, the Personal
Representative affirmed that he had received all income, pay-
ments, and receipts in Orville’s estate and paid all costs,
expenses, and disbursements. An accounting of the estate
account from October 22, 2010, through January 2, 2014, was
included with this final report. A schedule of distribution, also
file stamped on January 10, was prepared. The schedule of
distribution listed distributions to the Claimants and listed one
distribution to Berniece. This distribution was the loan to the
Andersons valued at approximately $25,000. On January 10,
the county court set February 13 as the date for a hearing on
the Formal Petition.
The Personal Representative filed an affidavit of mailing
notice of complete settlement on January 17, 2014. This affi-
davit stated that the Personal Representative’s attorney sent to
the Claimants by U.S. mail a copy of the notice required for
the February 13 hearing and copies of the Formal Petition,
the schedule of distribution, and the final report. Additionally,
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809the Personal Representative’s attorney filed an affidavit stat-
ing that he mailed a notice of hearing of the complete settle-
ment after the informal testate proceeding in Orville’s estate
to all interested parties on or about January 16. He also
stated in his affidavit that he did not receive these mailings as
returned mail. The Sidney Sun Telegraph, a legal newspaper in
Cheyenne County, published notice for the hearing on January
15, 22, and 29.
The county court entered the formal order for complete
settlement after the informal testate proceeding (the Formal
Order) on February 13, 2014. In the Formal Order, the court
noted that it considered the Formal Petition. The court found
that the Personal Representative collected and managed the
assets of the estate, filed an inventory and final account-
ing, paid all lawful claims against the estate, and performed
all other acts required. The court stated that Berniece would
receive a total of 28.61 percent of the probate and nonprobate
assets of Orville’s estate. It specifically noted that Berniece
would receive at least $1 million from the estate. The court
further found that Orville’s will and codicil were declared to be
valid and formally probated. The court allowed and approved
the final accounting and the distributions made and reported
on the final accounting and the schedule of distribution.
The court also determined that the authority of the Personal
Representative should be terminated and that he would be dis-
charged from further claims when the final fiduciary income
tax return was filed with the Internal Revenue Service. This
was the last action taken in the estate until almost 3 years later,
in December 2016.
In the interim, Berniece passed away in 2015. On September
25, the Claimants filed a claim in Berniece’s estate, alleg-
ing that she received an excessive distribution from Orville’s
estate. The Claimants alleged that the distribution was in
violation of the postnuptial agreement entered into between
Orville and Berniece during their lifetimes. As part of this
claim, the Claimants deposed the Personal Representative in
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809July 2016. Ultimately, the county court determined that the
allegation of an improper distribution was filed in the wrong
estate and that the claim should have instead been brought in
Orville’s estate. The county court stated that “[a]lthough the
Claimants have filed their claim in this case, it is actually a
claim that should be asserted in the Estate of Orville Filsinger,
PR 09-48, because the claim asserts an improper distribution
in that estate. Berniece . . . was simply the benefactor of the
alleged improper distribution.” The Claimants appealed the
county court’s decision to this court, alleging the lower court
erred in determining that the claim must be filed in Orville’s
estate and in not finding that fraud was perpetrated on the
Claimants. We affirmed the county court’s decision. See In
re Estate of Filsinger, 27 Neb. App. 142, 927 N.W.2d 391(2019) (Filsinger I).
In our opinion, we first determined that if the claim was
alleging there was a breach of contract by virtue of Orville’s
will’s not conforming to the postnuptial agreement, the claim
would be against Orville’s estate, and thus the county court
was correct in holding that the Claimants could not assert the
claim against the estate of Berniece. If, however, the claim
was that the distribution to Berniece failed to conform with
Orville’s will, the limitations of Neb. Rev. Stat. § 30-24,120
(Reissue 2016) would apply. Filsinger I. After we reviewed
the Formal Petition and the Formal Order in Orville’s estate,
we held that the petition and order in Orville’s estate were
a proceeding settling the accounts of a personal representa-
tive which would bar the claim from the Claimants under
§ 30-24,120. Filsinger I. We found that there was no question
that the court entered a final order for complete settlement in
connection with that distribution. Id. We also determined that
the claim was previously adjudicated under the Formal Order
because the Personal Representative requested the court to
approve the final settlement and direct that the distribution of
remaining assets of the estate be made to the distributees in
the amount and manner set forth in the attached schedule of
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809distribution. Id. Under that order, Berniece, by virtue of joint
tenancy ownership and transfer and assignment of the promis-
sory note of the Andersons, would receive at least $1 million
as directed. Id. In the Formal Order, the county court found
and determined that the Personal Representative of Orville’s
estate was authorized and directed to distribute assets to the
distributees in the amount and manner set forth in the schedule
of distribution. Id. We held that because that specific issue was
adjudicated in connection with the Personal Representative’s
petition for formal settlement, the Claimants’ direct claim
against the distributee of Orville’s estate is barred by the
terms of § 30-24,120. Filsinger I. Finally, we found that the
Claimants’ arguments that the fraud provisions of § 30-24,120
applied were not borne out by the language of the claim filed
in Berniece’s estate. Filsinger I. Since the pleading did not
suggest fraud in the manner in which the distributions were
made, the county court did not err in failing to find that the
action was based on fraud. Id.
The Claimants filed the present claim against the Personal
Representative of Orville’s estate on May 24, 2017. The
Claimants alleged that the Personal Representative breached
his fiduciary duty to the estate and the beneficiaries of the
estate by not disclosing the details of the estate distribution.
Other details of distribution were alleged to have been fraud­
ulently concealed. The Claimants alleged that they received
neither a notice of the hearing held on February 13, 2014,
nor the schedule of distribution. They also alleged that the
Personal Representative knew that the Claimants did not have
specific or detailed knowledge of the schedule of distribution
because no accounting, no final report, and no information
had been given to them. They further alleged that the Personal
Representative disclosed some information but did not dis-
close all the information, informing the Claimants about only
a $25,000 note with respect to Berniece’s distributions. The
Claimants also alleged that the Personal Representative had
a fiduciary duty to speak to the Claimants but deliberately
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809remained silent, which they allege to be equivalent to a false
representation. The Claimants asserted that they were damaged
in that they reasonably relied on the Personal Representative’s
assurances that proper distribution under the postnuptial agree-
ment was occurring.
The Claimants further asserted that the Formal Petition, the
final accounting, and the schedule of distribution were not
found within the case file for Orville’s estate. In a proceed-
ing in Berniece’s estate that occurred on January 28, 2016, it
was discovered that these documents could not be properly
located within the court file. However, in that hearing, the
clerk reported that the documents did appear on the online
electronic court filing system. During the hearing for summary
judgment, the Claimants argued that the Formal Petition, the
final accounting, and the schedule of distribution were never
in the court file. However, the Claimants did not argue that the
Formal Order was not in the court file. They did allege that
they did not receive these documents until the deposition of the
Personal Representative.
At the hearing, Marvin, one of the Claimants, asserted that
he never received notice of the hearing or any of the infor-
mation that the Personal Representative stated that he mailed
to Marvin. A transcript of his earlier testimony adduced in a
hearing on the claim made in Berniece’s estate was received
wherein Marvin testified that he does not subscribe to the
Sidney Sun Telegraph, the newspaper that published the notice
for the hearings. However, he verified his address, which was
the same as the one included by the Personal Representative in
the affidavit of mailing notice. Marvin’s address was also cor-
rectly listed on the application for informal probate.
Finally, the Claimants alleged that no final accounting was
filed and that the last inventory that was filed was completed
in 2010. The Claimants then alleged that the Formal Order
on complete settlement filed by the court did not disclose
the irregularities that the Claimants previously asserted. They
also claimed that the Formal Order made findings inconsistent
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IN RE ESTATE OF FILSINGER
Cite as 29 Neb. App. 809with what was in the online electronic court file. They asserted
that the initial basis for their concerns was a postnuptial agree-
ment that stated that Berniece would receive $1 million. They
also stated that Berniece confirmed this agreement by execut-
ing a disclaimer and renunciation. The Claimants then stated
that Berniece acquired, took, claimed, and held onto property
that exceeded $1 million by $200,000.
The court stayed all proceedings in Orville’s estate while the
claim in Berniece’s estate was being decided on appeal. After
we issued our mandate in Filsinger I, proceedings in the pres-
ent case resumed.
The Personal Representative denied the claim that the
Claimants made against him. The Personal Representative
stated that the claim was filed only after the county court
issued an order in Berniece’s estate holding that the claim
of excessive distribution was filed in the wrong estate. The
Personal Representative then asserted that the claim was time
barred under the following statutes: Neb. Rev. Stat. §§ 30-2485and 30-24,119 (Reissue 2016). On December 4, 2019, the
Personal Representative filed an amended motion for summary
judgment. The Personal Representative requested the court to
grant summary judgment in his favor and deny all claims filed
by the Claimants.
On April 28, 2020, the county court entered its order grant-
ing the Personal Representative’s motion for summary judg-
ment. The court determined that any claim by the Claimants
failed. First, the court denied the claim pursuant to § 30-24,120
because the claim was not timely filed and had been previously
adjudicated at the time of the closing of the estate on February
13, 2014. The court determined that there was no evidence to
support the allegations of fraud or fraudulent concealment that
would toll the time for filing the claim. The court also denied
the claim pursuant to § 30-24,119 because it was not timely
filed. The court, again, determined that the claim was barred
because it had been adjudicated at the hearing on February
13, 2014, which had closed the estate. The court further
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Cite as 29 Neb. App. 809determined that there was no evidence of fraud, misrepresenta-
tion, or inadequate disclosure that would toll the time for fil-
ing a claim under that statute. The court also determined that
the claim would be barred under § 30-2485 because it was not
timely filed. The court granted the motion for summary judg-
ment and dismissed the Claimants’ claim against the Personal
Representative. The Claimants appeal from that order.
On cross-appeal, the Personal Representative contends that
the county court erred by refusing to approve his applica-
tion to pay attorney fees with respect to fees incurred relative
to the claims made against Berniece’s estate. The Personal
Representative filed an application to pay fees and costs on
December 21, 2016, for work completed through October 31.
On May 16, 2017, the court denied the application because
the Formal Order for complete settlement after the informal
testate proceedings was filed on February 13, 2014, and no
further filings were made until the application for fees and
response in opposition were filed at the end of 2016. The court
further found that the estate was closed and that the deposition
of the Personal Representative was sought in a separate case.
On July 14, 2017, the Personal Representative filed a renewed
application to pay fees and costs for work done through June
30, defending his actions in Orville’s estate, including for the
work for the deposition in proceedings involved in Berniece’s
estate and other costs that were previously denied. The court
held a hearing on July 21 regarding the motion for leave to file
additional evidence on the issue of attorney fees and costs. The
court denied this motion on July 26, explaining that because
the Personal Representative was released from his duties of
personal representative 1 year after the Formal Order of settle-
ment was entered and no further claims were made in the estate
during that time, no further attorney fees were warranted. The
Personal Representative appeals these decisions.
ASSIGNMENTS OF ERROR
[1] The Claimants assign that the county court erred by
granting the Personal Representative’s motion for summary
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Cite as 29 Neb. App. 809judgment as a matter of law. The Claimants specifically allege
the county court erred by (1) finding that their claim was
barred under §§ 30-2485 and 30-24,119; (2) failing to find
that the Personal Representative violated Neb. Rev. Stat.
§ 30-2464 (Reissue 2016); (3) failing to find that the Personal
Representative violated Neb. Rev. Stat. § 30-2473 (Reissue
2016); and (4) failing to find that the Personal Representative
committed inadequate disclosure, fraud, or misrepresentation in
his administration of Orville’s estate. We note that although the
Claimants allege that the county court erred by finding their
claim was barred under § 30-2485, they concede in their brief
that they have never asserted or claimed that their claim was
pursued under that statute, so we need not address this assign-
ment of error. Further, we note that the Claimants’ assignments
of error as to the Personal Representative’s alleged violations
of §§ 30-2464 and 30-2473 are not contained in their claim.
Therefore, we will not separately address them. An appellate
court does not consider an argument or legal theory raised for
the first time on appeal. Junker v. Carlson, 300 Neb. 423, 915
N.W.2d 542 (2018). However, to the extent that the require-
ments of those statutes are relevant to our analysis, we will
consider them.
On cross-appeal, the Personal Representative alleges that
the county court erred in denying his application and renewed
application to pay fees and costs filed on December 21, 2016,
and on July 14, 2017.
STANDARD OF REVIEW
[2,3] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188(2013). In reviewing a lower court’s grant of summary judg-
ment, we view the evidence in the light most favorable to the
party against whom the judgment was granted, giving that
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Cite as 29 Neb. App. 809party the benefit of all reasonable inferences deducible from
the evidence. Lauer v. Golden Living Center, 28 Neb. App.
729, 947 N.W.2d 883 (2020).
[4] Which statute of limitations applies is a question of law
that an appellate court must decide independently of the con-
clusion reached by the trial court. Andres v. McNeil Co., 270
Neb. 733, 707 N.W.2d 777 (2005).
[5,6] An appellate court reviews probate cases for error
appearing on the record made in the county court. In re
Guardianship & Conservatorship of J.F., 307 Neb. 452, 949
N.W.2d 496 (2020). When reviewing a judgment for errors
appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id.ANALYSIS
The Claimants’ assignments of error assert, for various
reasons, that the county court erred in granting the Personal
Representative’s motion for summary judgment. As we will
discuss below, the county court did not err in determining that
their claim was barred under § 30-24,119. We also find no
error in the county court’s conclusion that the Claimants failed
to produce evidence of fraud or fraudulent concealment that
would toll the time for filing a claim.
Timeliness of Claim Under § 30-24,119
[7-9] In their claim, the Claimants alleged that the Personal
Representative breached his fiduciary duty. It has long been
the law of this state that the personal representative of an
estate is a fiduciary as it relates to the beneficiaries of the
estate. Anderson v. Lamme, 174 Neb. 398, 118 N.W.2d 339(1962). As a fiduciary, the personal representative is required
to make a full disclosure of all facts within his or her knowl-
edge that are material for the beneficiaries to know so that they
can protect their interest. Id. The Nebraska Probate Code, Neb.
Rev. Stat. § 30-2201 et seq. (Reissue 2016), explains that a
personal representative is a fiduciary of the estate. As such, the
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Cite as 29 Neb. App. 809personal representative is under a duty to settle and distribute
the estate of the decedent in accordance with the terms of any
probated and effective will and the Nebraska Probate Code
as expeditiously and efficiently as is consistent with the best
interests of the estate. § 30-2464(a). If the personal represent­
ative of an estate exercises his or her power improperly and
damages the estate or causes a loss as a result of the breach
of fiduciary duty, then the personal representative is liable to
interested persons in the estate. § 30-2473.
[10] A devisee or claimant may proceed against a personal
representative for breach of fiduciary duty under § 30-24,119.
See Mach v. Schmer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).
However, if devisees or claimants proceed under § 30-24,119,
they must proceed within the limitations set forth in the statute.
Section 30-24,119 provides:
Unless previously barred by adjudication and except as
provided in the closing statement, the rights of successors
and of creditors whose claims have not otherwise been
barred against the personal representative for breach of
fiduciary duty are barred unless a proceeding to assert the
same is commenced within six months after the filing of
the closing statement. The rights barred by reason of the
filing of the closing statement do not include rights to
recover from a personal representative for fraud, misrep-
resentation, or inadequate disclosure related to the settle-
ment of the decedent’s estate.
[11,12] Under the plain language of this statute, the claim-
ant must bring the action for breach of fiduciary duty within
6 months of the closing statement’s being filed. See Mach v.
Schmer, supra. The statutory time bar found within § 30-24,119
does not apply if the plaintiff is seeking to recover from a
personal representative for fraud, misrepresentation, or inad-
equate disclosure related to the settlement of the decedent’s
estate. Id.
The county court determined that the Claimants’ claim
was time barred pursuant to § 30-24,119 because the claim
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Cite as 29 Neb. App. 809was filed more than 6 months after the closing statement was
filed and because there was no evidence of fraud, misrepre-
sentation, or inadequate disclosure that would toll the time
for filing a claim under the statute. The county court also
found that the Claimants’ claim was barred because it had
been adjudicated at the hearing on February 13, 2014, when
the estate was closed. Although the Personal Representative
focuses much of his brief on appeal on whether the claim was
previously adjudicated, we focus instead on the time limita-
tion with respect to the closing statement. In so doing, we
recognize that § 30-24,119 could be read in a manner similar
to our finding as to § 30-24,120. As such, although there are
some differences between the language of the two statutes,
we could consider whether the prior adjudication bars the
Claimants’ claim. However, it is not necessary to make that
determination here, since in this case, it is clear that the claim
of the Claimants herein was not filed within the time limits
prescribed by § 30-24,119.
[13,14] First, we must determine whether a closing state-
ment was filed. The Nebraska Probate Code does not specifi-
cally define the term “closing statement.” In interpreting the
various sections of the Nebraska Probate Code, this court may
examine the comments to the Uniform Probate Code. In re
Estate of Fuchs, 297 Neb. 667, 900 N.W.2d 896 (2017). Under
a specific section of the Uniform Probate Code, which is the
basis for Neb. Rev. Stat. § 30-24,117 (Reissue 2016), the com-
ment states that a closing statement is an affirmation by the
personal representative that he or she believes the affairs of
the estate to be completed. See Unif. Probate Code § 3-1003,
8 (part II) U.L.A. 470 (2013). In addition, the requirements
for a closing statement are listed in § 30-24,117 as part of the
Nebraska Probate Code. Section 30-24,117 provides that a
personal representative may close an estate by a verified state-
ment as long as the personal representative is not prohibited by
order of the court and the estate is not being administered in a
supervised administration proceeding. This verified statement
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Cite as 29 Neb. App. 809must be filed more than 5 months after the date of the original
appointment of the personal representative. Id. The statement
must state that the personal representative
(1) published notice to creditors as provided by section
30-2483 and that the first publication occurred more than
four months prior to the date of the statement;
(2) fully administered the estate of the decedent by
making payment, settlement or other disposition of all
claims which were presented, expenses of administration
and estate, inheritance and other death taxes, except as
specified in the statement, and that the assets of the estate
have been distributed to the persons entitled. . . .
(3) sent a copy thereof to all distributees of the estate
and to all creditors or other claimants of whom he is
aware whose claims are neither paid nor barred and has
furnished a full account in writing of his administration to
the distributees whose interests are affected thereby.
§ 30-24,117(a).
The Personal Representative concedes that he did not file a
document with the title “closing statement.” Nevertheless, it is
clear from the record and the documents filed by the Personal
Representative that he filed other, similar documents in which
he affirmed that the affairs of the estate were completed.
The Personal Representative filed a final report that was file
stamped by the county court on January 10, 2014. In this final
report, the Personal Representative attested that he, as personal
representative, had received all income, payments, and receipts
in Orville’s estate and had paid all costs, expenses, and dis-
bursements. The Personal Representative stated that he had
received payment with regard to a promissory note executed
by a debtor and noted that the promissory note was secured
by property. Attached to the final report was an accounting.
The Personal Representative also filed a “Formal Petition
for Complete Settlement After Informal Testate Proceeding”
that was file stamped by the county court on January 10.
The Formal Petition stated that the notice to creditors was
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Cite as 29 Neb. App. 809published in compliance with Neb. Rev. Stat. § 30-2483(Reissue 2016). On January 10, a hearing was scheduled by
the court to be held on February 13. An affidavit of publication
was submitted stating that notice was published in the Sidney
Sun Telegraph for 3 consecutive weeks beginning on January
15. An affidavit of mailing notice of complete settlement was
filed on January 17, stating that a copy of the notice for the
hearing on the Formal Petition, schedule of distribution, and
final report was sent to the Claimants at the addresses pro-
vided within the affidavit. On February 13, the court entered
the Formal Order. In short, these documents established that
the Personal Representative published and provided notice,
fully administered the estate, and sent a copy to all distrib­
utees of the estate and furnished a full account in writing of
the administration. In addition, these documents demonstrate
an affirmation by the Personal Representative that the affairs
of the estate were completed. Thus, the documents filed by the
Personal Representative are consistent with a closing statement
as described by the statutory requirements.
The Claimants allege that they never received the Formal
Petition, the schedule of distribution, and the final report. The
Claimants further allege that despite the date stamp on these
documents, they were not actually placed within the court file
at the time they were delivered to the court. While the docu-
ments were file stamped as having been received on January
10, 2014, it was found that the documents were not physically
placed in the court file. We note, however, that at the hearing
where this problem was discovered, the clerk indicated the
documents did appear via computer. In any event, it is clear
that on January 10, 2014, the court set hearing for February 13
regarding the Formal Petition that it had received.
[15] We recall that the controlling statutory language in
§ 30-24,119 requires the closing statement to be filed for
the time barring of a claim against a personal representa-
tive to begin. Statutory language is to be given its plain and
ordinary meaning, and an appellate court will not resort to
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Cite as 29 Neb. App. 809interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. Dean v. State, 288
Neb. 530, 849 N.W.2d 138 (2014). Thus, we are tasked with
determining when the documents were filed. The word “file”
is defined as “[t]o deliver a legal document to the court clerk
or record custodian for placement into the official record.”
Black’s Law Dictionary 745 (10th ed. 2014). This is consistent
with our previous interpretation where the endorsement of the
clerk with a file stamp or an endorsement of a typed date by
the clerk’s signature determines the date of filing. See State v.
Muse, 15 Neb. App. 13, 721 N.W.2d 661 (2006) (explaining
that endorsement date of clerk either by file stamp or by typed
endorsement is what is controlling for purposes of speedy
trial statute). In the present case, the Personal Representative
delivered the papers to the court clerk for placement into the
official record. The clerk date stamped these documents on
January 10, 2014. After receiving these documents, the court
scheduled a hearing on February 13. Thus, the closing state-
ment was filed with the court on January 10. Because the clos-
ing statement was filed in January 2014, the Claimants had 6
months from that filing date, or until July 10, to file a claim
against the Personal Representative for breach of his fiduciary
duty. They failed to do so, as they did not file such a claim
until May 2017. Therefore, the action was time barred under
the terms of § 30-24,119 unless a material issue of fact exists
as to fraud, misrepresentation, or inadequate disclosure on the
part of the Personal Representative.
Inadequate Disclosure, Fraud,
or Misrepresentation
To avoid the time bar of § 30-24,119, the Claimants also
assign and argue that the Personal Representative committed
inadequate disclosure, fraud, or misrepresentation. The county
court found “no evidence of fraud, misrepresentation or inad-
equate disclosure that would toll the time for filing a claim
under this statute.” We find no error in this determination.
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Cite as 29 Neb. App. 809[16] Before addressing the merits of the arguments, we
note the parties’ disagreement as to what statute of limitations
should apply to the Claimants’ allegation. The Claimants argue
that the general 4-year statute of limitations for actions not
otherwise specified found in Neb. Rev. Stat. § 25-212 (Reissue
2016) should apply. The Personal Representative argues that
Neb. Rev. Stat. § 30-2206 (Reissue 2016) should apply. Section
30-2206 requires that an action in a probate case based on
fraud must be commenced within 2 years following the dis-
covery of the fraud. The county court did not consider this
issue. The county court simply found that no evidence of fraud,
misrepresentation, or inadequate disclosure existed that would
toll the 6-month limitation provided for by § 30-24,119. We
agree with the court’s conclusion. We find that none of the acts
alleged by the Claimants constitute fraud, misrepresentation, or
inadequate disclosure. Therefore, there is no basis for tolling
the 6-month period of limitation found in § 30-24,119. If there
is no basis for tolling, none of the argued statutes of limitation
are applicable. The only applicable period is that provided for
in § 30-24,119.
The Claimants assert that the Personal Representative pro-
vided inadequate disclosure with respect to the following: fail-
ing to provide notice for the complete settlement of the estate,
a schedule of distribution, an accounting, and a final report
or information. The Claimants also assert that the Personal
Representative made misrepresentations in that the Personal
Representative had a duty to reveal all known material facts in
the schedule of distribution and failed to do so. They further
argue that the Personal Representative had a duty to speak to
them about the administration of the estate and that his silence
would amount to a fraudulent misrepresentation. Finally, they
allege that the misfiling of the Formal Petition for complete
settlement and associated documents supports their claim. We
address these allegations in turn.
[17] A personal representative may file a petition for an
order of complete settlement. Neb. Rev. Stat. § 30-24,115
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Cite as 29 Neb. App. 809(Reissue 2016). The petition may request the court to deter-
mine testacy, consider the final account, approve an account-
ing and distribution, construe any will or determine heirs,
and adjudicate final settlement and distribution of the estate.
§ 30-24,115(a). After notice and hearing, the court may enter
an order determining the persons entitled to distribution of
the estate, approve settlements, approve distributions, and
discharge the personal representative from further claim or
demand of any interested person. Id. If a personal representa-
tive files a petition for an order of complete settlement, he or
she is required to give all interested persons notice, consistent
with Neb. Rev. Stat. § 30-2220 (Reissue 2016), the general
notice provision of the probate code. See In re Estate of
Wilson, 8 Neb. App. 467, 594 N.W.2d 695 (1999) (explaining
that general notice provision of probate code applies if notice
of hearing on petition is required). The general notice provision
requires the petitioner to mail a copy of the petition at least 14
days before the time set for the hearing by certified, registered,
or ordinary first-class mail and publish at least once a week for
3 consecutive weeks a copy in a legal newspaper in the county
where the hearing is to be held. § 30-2220(a).
In the present case, there is no dispute as to whether the
Personal Representative published the notice with a newspaper
of general circulation. A copy of the notice was attached to the
affidavit of mailing notice of complete settlement executed by
the attorney for the Personal Representative and was filed on
January 17, 2014. The affidavit also notes the first date of pub-
lication. An affidavit of publication completed by the clerk of
the Sidney Sun Telegraph was received in evidence establish-
ing that the notice of hearing was published for 3 consecutive
weeks, at least once per week, in Cheyenne County.
There is a dispute as to whether all of the Claimants received
the documents included in the affidavit of mailing notice. We
note that on the face of the affidavit, counsel for the Personal
Representative recites that he provided a copy of the notice
of hearing by U.S. mail together with copies of the Formal
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Cite as 29 Neb. App. 809Petition for complete settlement after the informal testate pro-
ceeding, schedule of distribution, and final report to the three
Claimants at their last known addresses. An additional affidavit
executed by counsel for the Personal Representative recites
that none of the copies of the notice sent to the Claimants had
been returned to his office.
The Personal Representative urges us to follow the presump-
tion found in Waite Lumber Co., Inc. v. Carpenter, 205 Neb.
860, 290 N.W.2d 655 (1980). This presumption provides that
a letter addressed, stamped, and mailed raises a presumption
that the letter reached the addressee in the usual course of the
mail. Id. This presumption may be rebutted by any relevant
evidence; however, positive testimony by the addressee that a
letter was not received simply raises a question of fact to be
decided by the trier of fact. Id.Marvin submitted an affidavit and a transcript of testimony
from a prior proceeding involving Berniece’s estate that he did
not receive the notice of the hearing on the Formal Petition.
He also stated that he did not receive the documents that were
listed in the affidavit of mailing notice. However, Marvin did
admit that his address listed on the affidavit of mailing was
correct. There was no evidence presented by the Claimants
that indicates that Krueger or Vegas failed to receive the notice
of hearing or the other documents sent by counsel for the
Personal Representative. The Claimants throughout these pro-
ceedings at trial and on appeal have claimed only that Marvin
failed to receive notice and that somehow, by virtue of this
failure, Krueger and Vegas have maintained an ability to join
his claim.
The material issue, however, is not solely whether all three
Claimants received the notice and accompanying documents.
Section 30-2220 requires that the notice be mailed to the inter-
ested parties and published. The record in this case is clear
that both of these things happened and that the addresses they
were mailed to were correct. The fact that there is no claim
by Krueger or Vegas that the notice and attached documents
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Cite as 29 Neb. App. 809were not received corroborates Matoon’s affidavits. So while
there may be some issue as to whether Marvin received the
notice, his receipt of the notice is not a material issue of fact.
Not all issues of fact preclude summary judgment, but only
those that are material. In the summary judgment context, a
fact is material only if it would affect the outcome of the case.
Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826
N.W.2d 225 (2012).
The Personal Representative, through counsel, fulfilled his
statutory duty as to the provision of proper notice. Had Marvin
filed a claim in his name only, a better argument could be made
that a material issue of fact exists. However, the claim filed
was filed collectively by Marvin, Krueger, and Vegas, “herein
called ‘heirs’ or ‘devisees,’” i.e., the Claimants. In their joint
claim, they allege that none of them received notice. This
assertion is not supported by any evidence. No affidavit was
produced from any source stating that Krueger and Vegas did
not receive notice. Moreover, there is no evidence to rebut the
affidavits demonstrating that proper publication of the hearing
was accomplished in the Sidney newspaper. Therefore, we can
find no issue of material fact with regard to inadequate disclo-
sure to the Claimants. This claim fails.
Next, the Claimants assert that the Personal Representative
misrepresented the distribution to Berniece in the documents
filed. According to the schedule of distribution, Berniece was
awarded a loan to the Andersons in the amount of $25,000. No
other distribution was listed. In the petition for settlement, the
Personal Representative notes that Berniece has received by
virtue of joint tenancy ownership and transfer of and assign-
ment of the Andersons’ promissory note at least $1 million as
directed by Orville’s will. The Claimants seem to argue that
because the assets received by Berniece by virtue of joint ten-
ancy or transfer or payable on death provisions were not listed
in the schedule of distribution, final accounting, or Formal
Petition, misrepresentation occurred. We disagree. The purpose
of the schedule of distribution and associated documents is
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Cite as 29 Neb. App. 809to present to the court what distributable assets existed in the
estate and how they were distributed. It was not necessary to
list real or personal property that passed to other individuals
outside of the estate. Here, there is a reference to nonprobate
property received by Berniece to the extent it was necessary
to show that Orville’s wishes were honored with respect to
Berniece’s receiving at least $1 million of value. However, it
was not necessary for the Personal Representative to make an
itemized list.
We note that the original and amended inventories filed in
2010 fully listed the real and personal property held in joint
tenancy with Berniece and those items that were payable on
death to Berniece. The value attributed to those items was
initially nearly $1.8 million. It is clear from the correspond­
ence between Krueger, Vegas, and counsel for the Personal
Representative that at least those two individuals were well
aware of how much value could go to Berniece and that it was
the attorney’s position that she was entitled to receive property
which was valued at more than $1 million. All of the Claimants
subsequently became aware that Berniece was forfeiting her
interest (based on joint tenancy) in the Sunol Property, which
carried a value of nearly $600,000. In exchange, she asked for
the Andersons’ promissory note valued at $25,000. Based on
the totality of the foregoing knowledge held by the Claimants,
we cannot find that any fraud, misrepresentation, or inad-
equate disclosure was made in the filings of the Personal
Representative leading to the final hearing.
For similar reasons, we find no merit to the Claimants’
argument that the Personal Representative failed to talk
with them about the administration of the estate and that
his silence amounts to fraudulent misrepresentation. No facts
were adduced supporting this position. Conversely, the record
reveals exchanges of correspondence relative to the value of
property received by Berniece. This argument fails.
Finally, the Claimants argue that fraud or inadequate dis-
closure is apparent based on the misfiling or lack of filing of
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Cite as 29 Neb. App. 809the Formal Petition for complete settlement and associated
documents that were filed on January 10, 2014. While our
record is not totally clear, it appears that these documents were
not placed into the correct physical file, but were properly file
stamped and did appear electronically. While any confusion the
misfiling caused is unfortunate, there is no evidence to suggest
that the misfiling was a result of actions taken by the Personal
Representative. As a result, there can be no fraud, misrepresen-
tation, or inadequate disclosure attributed to him. Moreover,
as noted above, the evidence shows that at minimum, two
of the three Claimants received these documents in the mail.
Therefore, this argument fails as well.
Because all of the Claimants’ arguments fail, we cannot
find that the county court erred in granting the Personal
Representative’s motion for summary judgment. There was no
fraud, misrepresentation, or inadequate disclosure that would
toll the time bar found within § 30-24,119.
Summary Judgment
[18] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law. Bayliss v.
Clason, 26 Neb. App. 195, 918 N.W.2d 612 (2018). A party
moving for summary judgment has the burden to show that
no genuine issue of material fact exists and must produce suf-
ficient evidence to demonstrate that it is entitled to judgment
as a matter of law. Id. When the parties’ evidence would sup-
port reasonable, contrary inferences on the issue for which a
movant seeks summary judgment, it is an inappropriate rem-
edy. Id. Where reasonable minds could draw different conclu-
sions from the facts presented, a triable issue of material fact
arises. Id.Viewing and construing the evidence in the light most
favorable to the Claimants and giving them the benefit of
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Cite as 29 Neb. App. 809all reasonable deductions from the evidence, we conclude
that there is no genuine issue of material fact concerning
the closing statement being filed on January 10, 2014, and
that the Claimants’ claim was filed more than 6 months after
this filing. As discussed above, we conclude that there is no
genuine issue of material fact in determining that there was
no fraud, misrepresentation, or inadequate disclosure perpe-
trated by the Personal Representative. As such, the court did
not err in granting the Personal Representative’s motion for
summary judgment and finding that the claim was time barred
under § 30-24,119.
Cross-Appeal
The Personal Representative has filed a cross-appeal alleg-
ing that the county court erred by denying him attorney fees
and costs in an order dated May 16, 2017. The Personal
Representative also alleges that the county court erred in deny-
ing his renewed application to pay fees and costs by virtue of
an order dated July 26, 2017.
[19,20] 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. In re Guardianship &
Conservatorship of Forster, 22 Neb. App. 478, 856 N.W.2d
134 (2014). An appellate court has jurisdiction over final
orders that are appealed within 30 days from their entry. Id.See, also, Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020). The
Personal Representative filed his cross-appeal on September
28, 2020. Because the fee orders challenged in this appeal
were issued more than 30 days prior to this appeal, we must
determine whether they were final orders at the time they
were entered. If so, we do not have jurisdiction to consider
them now.
[21,22] Under Neb. Rev. Stat. § 25-1902 (Cum. Supp.
2020), an appellate court may review an order that affects a
substantial right made during a special proceeding. A special
proceeding entails civil statutory remedies not encompassed
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Cite as 29 Neb. App. 809in chapter 25 of the Nebraska Revised Statutes. In re Estate of
Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010). Proceedings
under the Nebraska Probate Code are special proceedings
under § 25-1902. In re Estate of Rose, 273 Neb. 490, 730
N.W.2d 391 (2007). See, also, In re Estate of Muncillo, supra
(stating that Nebraska law is clear that proceedings under
Nebraska Probate Code are special proceedings). The requests
for fees and the orders denying fees in this case were made
pursuant to Neb. Rev. Stat. § 30-2481 (Reissue 2016), which is
contained within the Nebraska Probate Code. Section 30-2481
provides that a personal representative is entitled to receive
reasonable attorney fees incurred in either defending or pros-
ecuting a proceeding in good faith. The proceedings herein
occurred under the Nebraska Probate Code and therefore con-
stitute special proceedings.
[23-26] Having determined that the fee orders were made
in a special proceeding, we next must consider whether they
affected a substantial right. A substantial right is an essential
legal right, not a mere technical right. See In re Estate of
Muncillo, supra. Substantial rights under § 25-1902 include
those legal rights that a party is entitled to enforce or defend.
In re Guardianship & Conservatorship of Forster, supra. If a
substantial right is affected, an order is directly appealable as
a final order even though it does not terminate the action or
constitute a final disposition of the case. Id. Fee orders in a
probate case are made in a special proceeding; an order award-
ing a personal representative fees affects a substantial right
when it finally determines the personal representative’s claim
for reasonable compensation under Neb. Rev. Stat. § 30-2480(Reissue 2016). See In re Guardianship & Conservatorship of
Forster, supra.
We have previously determined that the fees for a tempo-
rary guardian that are still ongoing are not appealable until
the court enters its final order terminating the guardianship
and conservatorship and discharging the guardian and con-
servator from his or her duties. See id. In In re Guardianship
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Cite as 29 Neb. App. 809& Conservatorship of Forster, we determined that the orders
awarding fees to the guardian and conservator did not finally
determine the guardian and conservator’s claim for reasonable
compensation. We relied on the reasoning of the Nebraska
Supreme Court in In re Estate of Gsantner, 288 Neb. 222,
846 N.W.2d 646 (2014). In In re Estate of Gsantner, the
court determined that the fees to a personal representative
were a final order because the order finally determined the
personal representative’s claim for reasonable compensation.
In that case, the personal representative was awarded a total
of $25,000 while the estate had been partially distributed and
the personal representative continued to serve as personal rep-
resentative. The trial court did not state that the award was a
partial fee; nor did it include any language that would indicate
that the award was subject to later revision or augmentation.
Id. The court noted that the personal representative’s award
was made after a special evidentiary hearing was held on the
issue of fees. Id.With this reasoning in mind, we turn to the present case.
The Formal Order for complete settlement was entered by the
court in February 2014. The Personal Representative filed an
application to pay fees and costs for work done relative to
the Claimants’ claim in Berniece’s estate between October 31,
2016, and the filing of the motion on December 21. The county
court denied this request on May 16, 2017. Specifically, the
county court found that the application to pay fees and costs
was filed in the wrong estate and denied the application to pay
fees and costs. There was no language in the order to indicate
that the award was subject to a later revision.
On July 14, 2017, the Personal Representative filed a
renewed application to pay fees and costs for work done
through June 30, defending his actions in both Orville’s estate
and Berniece’s estate. The request in this motion included
those fees which had been previously requested and denied on
May 16 and those fees for additional work done through June
30. The Personal Representative also filed a motion for leave
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Cite as 29 Neb. App. 809to file additional evidence on the issue of attorney fees and
costs. The court held a hearing on July 21 regarding the motion
for leave to file additional evidence on the issue of attorney
fees and costs. This motion was denied on July 26. At the close
of the hearing, the court reiterated that Orville’s estate had
been closed at the request of the Personal Representative. The
order gave no indication that it was subject to later revision. It
appears to be fully dispositive of the Personal Representative’s
motion at the time. Based on the reasoning in prior cases, we
believe that both orders entered by the county court were fully
dispositive of the Personal Representative’s requests for attor-
ney fees. Therefore, each order constituted a final order. As
such, any appeal had to occur within 30 days after each of the
orders. Consequently, we do not have jurisdiction to hear the
cross-appeal and it must be dismissed.
CONCLUSION
For the foregoing reasons, we affirm the decision of the
county court in granting the Personal Representative’s motion
for summary judgment. We also dismiss the cross-appeal filed
by the Personal Representative for lack of jurisdiction.
Affirmed in part, and in part dismissed.