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Gloria Correa, appellant, v. Estate of E. Dean Hascall, 

deceased, and Neomi D. Hascall, as Personal

Representative of the Estate of

E. Dean Hascall, appellees.

___ N.W.2d ___

Filed July 25, 2014. No. S-13-749.

1. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional 

questions that do not involve a factual dispute as a matter of law.

2. Decedents’ Estates: Executors and Administrators: Statutes. Because a personal representative is not a natural person, but an entity created by statute 

through a court order of appointment, when an estate is closed and the personal 

representative discharged, there is no viable entity or person to sue.

3. Limitations of Actions: Dismissal and Nonsuit. Under Neb. Rev. Stat. § 25-217 

(Reissue 2008), an action is commenced on the date the complaint is filed with 

the court, but is dismissed without prejudice as to any defendant not served 

within 6 months from the date the complaint was filed.

4. Limitations of Actions. Under certain situations as set forth in Neb. Rev. Stat. 

§ 25-201.02 (Reissue 2008), an amended complaint may relate back to the commencement date of an earlier complaint.

Appeal from the District Court for Sarpy County: William

B. Zastera, Judge. Appeal dismissed.

Patrick E. McNamara and Ryan M. Hoffman, of Anderson, 

Bressman & Hoffman Law Firm, P.C., L.L.O., for appellant.

Karen Weinhold, of Engles, Ketcham, Olson & Keith, P.C., 

for appellees.

Heavican, C.J., Wright, Connolly, Stephan, Miller-Lerman, 

and Cassel, JJ.

Heavican, C.J.

INTRODUCTION

Gloria Correa filed this negligence action against the estate 

of the decedent, E. Dean Hascall (Hascall), and the estate’s 

personal representative, Neomi D. Hascall. The district court 

granted the estate’s motion for summary judgment and denied 

Correa’s motion for leave to file an amended complaint. 

Correa appeals. We conclude that the district court lacked 

jurisdiction over these motions and that likewise, this court 
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lacks jurisdiction over Correa’s appeal. Accordingly, we dismiss the appeal.

BACKGROUND

Correa and Hascall were involved in a motor vehicle accident in Sarpy County, Nebraska, on September 17, 2008. 

Hascall died on November 16, 2008, apparently of causes unrelated to the accident with Correa.

Hascall’s death prompted the opening of his estate. On 

October 19, 2009, Hascall’s widow, Neomi, was appointed 

personal representative of the estate. The estate was closed on 

September 24, 2010. Neomi was discharged as personal representative on September 1, 2011.

On September 14, 2012, Correa filed a complaint alleging 

Hascall’s negligence in the September 17, 2008, accident. The 

complaint was served on the estate and Neomi on November 7, 

2012. In their amended answer, filed April 5, 2013, the estate 

and Neomi alleged several affirmative defenses, including that 

Correa’s suit failed to state a cause of action upon which relief 

could be granted, because an action could not be brought 

against an estate that had been closed or a personal representative that had been discharged.

On May 17, 2013, the estate and Neomi filed for summary 

judgment. On June 17, Correa’s motion for an emergency order 

reopening the estate and appointing a special administrator was 

granted by the probate court. On that same day, Correa filed a 

motion for leave to file an amended complaint.

A hearing was held on July 1, 2013, on both the motion for 

summary judgment and the motion for leave to file an amended 

complaint. The hearing began with counsel for Correa presenting arguments on the motion for leave to file an amended 

complaint. Counsel for the estate and Neomi then presented 

their motion for summary judgment, arguing that dismissal 

would be appropriate because Correa filed suit against a closed 

estate and a discharged personal representative. The district 

court took the motion for leave to amend under advisement 

and indicated that it would “reset the Motion for Summary 

Judgment if necessary.” On July 30, the district court granted 
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the estate and Neomi’s motion for summary judgment and 

denied as moot Correa’s motion for leave to amend.

ASSIGNMENTS OF ERROR

Correa assigns, renumbered, that the district court erred 

in (1) denying Correa’s motion for leave to file an amended 

complaint because all parties had notice of the claim; (2) denying Correa’s motion for leave to file an amended complaint 

because the occurrence alleged in the amended complaint 

arose out of the same occurrence as the original complaint; 

(3) granting summary judgment without allowing Correa the 

opportunity to oppose the motion for summary judgment; and 

(4) granting summary judgment because Hascall’s insurer, 

State Farm, was equitably estopped from asserting the service 

of process issue.

STANDARD OF REVIEW

[1] An appellate court determines jurisdictional questions 

that do not involve a factual dispute as a matter of law.1

ANALYSIS

Explanation of Underlying Law

We begin with an explanation of the underlying law governing this issue. Neb. Rev. Stat. § 30-2486 (Reissue 2008) sets 

forth the manner of presentation of a claim against a decedent’s 

estate and states in part:

Claims against a decedent’s estate may be presented 

as follows:

(1) The claimant may file a written statement of the 

claim, in the form prescribed by rule, with the clerk of 

the court. The claim is deemed presented on the filing 

of the claim with the court. If a claim is not yet due, 

the date when it will become due shall be stated. If the 

claim is contingent or unliquidated, the nature of the 

uncertainty shall be stated. If the claim is secured, the 

security shall be described. Failure to describe correctly 

1 Carney v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014).
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the security, the nature of any uncertainty, and the due 

date of a claim not yet due does not invalidate the presentation made.

(2) The claimant may commence a proceeding against 

the personal representative in any court which has subject matter jurisdiction and the personal representative 

may be subjected to jurisdiction, to obtain payment of 

his or her claim against the estate, but the commencement of the proceeding must occur within the time limited for presenting the claim. No presentation of claim 

is required in regard to matters claimed in proceedings 

against the decedent which were pending at the time of 

his or her death.

Neb. Rev. Stat. § 30-2485 (Reissue 2008) sets forth time 

limitations on the presentation of claims:

(a) All claims against a decedent’s estate which arose 

before the death of the decedent, including claims of 

the state and any subdivision thereof, whether due or to 

become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, 

if not barred earlier by other statute of limitations, are 

barred against the estate, the personal representative, and 

the heirs and devisees of the decedent, unless presented 

as follows:

(1) Within two months after the date of the first publication of notice to creditors if notice is given in compliance with sections 25-520.01 and 30-2483, except that 

claims barred by the nonclaim statute at the decedent’s 

domicile before the first publication for claims in this 

state are also barred in this state. If any creditor has a 

claim against a decedent’s estate which arose before the 

death of the decedent and which was not presented within 

the time allowed by this subdivision, including any creditor who did not receive notice, such creditor may apply 

to the court within sixty days after the expiration date 

provided in this subdivision for additional time and the 

court, upon good cause shown, may allow further time 

not to exceed thirty days;
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(2) Within three years after the decedent’s death if 

notice to creditors has not been given in compliance with 

sections 25-520.01 and 30-2483.

. . . .

(c) Nothing in this section affects or prevents:

(1) Any proceeding to enforce any mortgage, pledge, or 

other lien upon property of the estate; or

(2) To the limits of the insurance protection only, any 

proceeding to establish liability of the decedent or the 

personal representative for which he or she is protected 

by liability insurance.

Under § 30-2485(a), Correa would, at most, be allowed 3 

years, or by November 16, 2011, to file a claim against Dean’s 

estate. No claim was filed during this time period; indeed, this 

lawsuit was not filed until September 14, 2012. For these reasons, any “claim” against the estate is untimely.

[2] Instead, Correa filed her negligence action in the district 

court. But she sued the estate, which had closed, and the personal representative, who had been discharged. The Nebraska 

Court of Appeals has held in a similar circumstance that a 

claimant could not institute proceedings against a discharged 

personal representative while an estate was closed. The Court 

of Appeals reasoned that

a personal representative is not a natural person, but, 

rather, an entity created by statute through a court order 

of appointment. . . . Thus, it naturally follows that when 

the estate is closed and the personal representative is discharged, there is no viable entity or person to sue, because 

the tortfeasor is deceased, his or her estate is closed, and 

there is no longer a personal representative.2

We agree, and conclude that Correa failed to properly bring 

suit against the estate or the personal representative, because 

the estate had been closed and the personal representative had 

been discharged.

2 Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 466, 825 N.W.2d 224, 

231 (2013). Cf., Babbit v. Hronik, 261 Neb. 513, 623 N.W.2d 700 (2001); 

Mach v. Schumer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).
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No doubt understanding her legal position, Correa filed an 

emergency motion to reopen the estate and assign a special 

administrator for purposes of service, which was granted. The 

newly appointed special administrator was served with the 

complaint on June 28, 2013.

[3] But this was insufficient to save Correa’s suit. Under 

Neb. Rev. Stat. § 25-217 (Reissue 2008), “[a]n action is commenced on the date the complaint is filed with the court,” but 

“shall stand dismissed without prejudice as to any defendant 

not served within six months from the date the complaint was 

filed.” In this case, Correa’s suit was not served on the new 

special administrator within 6 months, or by March 14, 2013, 

and thus it stood dismissed without prejudice. The district 

court lacked jurisdiction over Correa’s subsequent motions, 

and this court lacks jurisdiction over Correa’s appeal. However, 

we read Correa as arguing that the district court, and now 

this court, had jurisdiction because her amended complaint 

related back to her original complaint. We therefore address 

Correa’s specific assignments of error insofar as they speak to 

that contention.

Relation-Back Doctrine

In her first and second assignments of error, Correa argues 

that the district court erred in denying her motion for leave to 

file an amended complaint, because all parties had notice of 

the claim and because it was essentially the same claim as in 

the original complaint. Central to these arguments is Correa’s 

contention that her amended complaint should “relate back” to 

the date of her original complaint.

[4] Neb. Rev. Stat. § 25-201.02 (Reissue 2008) addresses 

the amendment of pleadings and the effect of that amendment:

(1) An amendment of a pleading that does not change 

the party or the name of the party against whom the 

claim is asserted relates back to the date of the original 

pleading if the claim or defense asserted in the amended 

pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.
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(2) If the amendment changes the party or the name of 

the party against whom a claim is asserted, the amendment relates back to the date of the original pleading if 

(a) the claim or defense asserted in the amended pleading 

arose out of the conduct, transaction, or occurrence set 

forth or attempted to be set forth in the original pleading, and (b) within the period provided for commencing 

an action the party against whom the claim is asserted 

by the amended pleading (i) received notice of the action 

such that the party will not be prejudiced in maintaining a defense on the merits and (ii) knew or should have 

known that, but for a mistake concerning the identity 

of the proper party, the action would have been brought 

against the party.

Correa argues that because the allegations in the amended 

complaint arise from the same basic allegations from the complaint, and because the estate and Neomi received notice and 

knew or should have known of Correa’s mistake concerning 

the identity of the proper party, her amended complaint relates 

back to her complaint and would be timely.

As an initial matter, we note that § 25-201.02(1) is inapplicable here. That subsection deals with the scenario wherein the 

amendment does not change the name of the party. But here, 

the newly appointed special administrator was substituted for 

Neomi in the proposed amended complaint, and thus the party 

name was changed.

Nor can § 25-201.02(2) save Correa’s amended complaint. 

Section 25-201.02(2)(b) requires that notice of the original 

action must be received by the party against whom the claim is 

asserted within the period provided for commencing an action. 

At the time of the original complaint, Neomi, the discharged 

personal representative, was sued. But the newly appointed 

special administrator was not served at that time and received 

no notice until June 28, 2013, at a time when Correa’s suit had 

already been dismissed by operation of law. Any notice to the 

new special administrator was not received within the “period 

provided for commencing an action.”

Correa’s argument simply overlooks the realities of the 

operation of § 25-217. This section is self-executing and acts 
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to dismiss without prejudice any action not served within 6 

months of its filing. As of March 14, 2013, 6 months after its 

filing, Correa’s suit was dismissed by operation of law. The 

newly appointed special administrator was not served until 

June 28, 2013. But that service was of the now-dismissed complaint. Any amended complaint would have nothing to relate 

back to.

Correa’s arguments regarding the relation-back doctrine and 

notice are without merit, as are her first and second assignments of error. We need not reach Correa’s third assignment error, as the district court lacked jurisdiction over the 

motion for summary judgment and motion for leave to file an 

amended petition.

State Farm’s Actions

In her fourth and final assignment of error, Correa contends that State Farm, Dean’s insurance carrier, was deceitful 

in engaging in settlement negotiations with her for nearly 6 

months and that equitable estoppel bars them from raising 

the service issue after it was too late for Correa to correct it. 

Correa cites to Olsen v. Olsen3 for the proposition that one 

cannot use the statute of limitations as a defense after his or 

her own promises and representations led to the delay in filing 

the action.

We first note that State Farm is not a party here. Further, 

we have no evidence regarding the nature of the negotiations 

between Correa and State Farm; instead, we have only Correa’s 

allegations about those negotiations as made at the July 1, 

2013, hearing and in her brief.

In any case, Correa’s reliance on Olsen is not persuasive. 

The defendant in Olsen, the plaintiff’s ex-husband, repeatedly and continuously over a period of years, indicated that he 

would sign the mineral deed at issue. We do not have any such 

pattern of deceit in the record in this case.

It appears that Correa allowed the estate and Neomi extra 

time to file an answer. While suit was filed on September 14, 

2012, and “service” was completed on November 7, the estate 

3 Olsen v. Olsen, 265 Neb. 299, 657 N.W.2d 1 (2003).
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and Neomi did not file an answer until March 29, 2013, with 

an amended answer filed April 5. While Correa sees this action 

as deceitful, on these facts we cannot agree. There is no evidence that the estate, Neomi, or State Farm acted to prevent 

Correa from correcting the defect in service by reopening the 

estate and having a special administrator appointed.

Correa’s fourth and final assignment of error is without 

merit.

CONCLUSION

Because the special administrator was not served within 6 

months of the commencement of the action, the district court 

lacked jurisdiction over Correa’s claims. Likewise, this court 

lacks jurisdiction over Correa’s appeal. The appeal is therefore dismissed.

Appeal dismissed.

McCormack, J., not participating.

State of Nebraska, appellee, v. 

Jeffrey A. Hessler, appellant.

___ N.W.2d ___

Filed July 25, 2014. No. S-13-850.

1. Postconviction: Proof: Appeal and Error. A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district 

court will not be disturbed unless they are clearly erroneous.

2. Postconviction: Constitutional Law: Proof. An evidentiary hearing on a motion 

for postconviction relief must be granted when the motion contains factual allegations which, if proved, constitute an infringement of the movant’s rights under 

the Nebraska or federal Constitution. However, if the motion alleges only conclusions of fact or law, or the records and files in the case affirmatively show that 

the movant is entitled to no relief, no evidentiary hearing is required.

3. Postconviction: Judgments: Appeal and Error. Whether a claim raised in a 

postconviction proceeding is procedurally barred is a question of law. When 

reviewing a question of law, an appellate court reaches a conclusion independent 

of the lower court’s ruling.

4. Appeal and Error. An appellate court does not consider errors which are argued 

but not assigned.