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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

IN RE ESTATE OF STRETESKY

Cite as 29 Neb. App. 338

In 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 conclusion 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 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.

4. Courts: Jurisdiction. County courts are statutorily created courts which 

possess limited jurisdiction.

5. Courts: Jurisdiction: Legislature. County courts can acquire jurisdiction only through a specific legislative mandate as a result of legislative 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/12/2021 09:07 AM CST
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IN RE ESTATE OF STRETESKY

Cite as 29 Neb. App. 338

Brock 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 restitution 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 matter 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 determined in case No. CI 15-004 in district court.
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IN RE ESTATE OF STRETESKY

Cite as 29 Neb. App. 338

On 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 damages 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 interest 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 judgment may create a judgment lien for the benefit of [the 

Foundation], but it shall be [the Foundation’s] responsibility 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 satisfaction 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 allowing Heartland Crop Insurance to deposit crop insurance 
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IN RE ESTATE OF STRETESKY

Cite as 29 Neb. App. 338

proceeds 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 previously 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 enforcement of claim. He objected to the court’s ordering disbursement 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 existence 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. 338

STANDARD OF REVIEW

[1] 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. 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 matter, 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 representative. 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, holding that the provisions of the Nebraska Probate Code explicitly exempt liens from the definition of both a claim and 
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IN RE ESTATE OF STRETESKY

Cite as 29 Neb. App. 338

a 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 proceedings. 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 judgment against a decedent or a personal representative, but 

this section shall not be construed to prevent the enforcement of mortgages, pledges or other liens existing at the 

time of death upon real or personal property in an appropriate 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 existing at the time of death in other proceedings outside the probate proceedings.
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IN RE ESTATE OF STRETESKY

Cite as 29 Neb. App. 338

When 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 determination 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 attachment of personal property and execution of this judgment 
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IN RE ESTATE OF STRETESKY

Cite as 29 Neb. App. 338

as 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 jurisdiction 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 judgment 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 jurisdiction 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 assignment 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.