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Margo Loop, as Guardian and Conservator of Lorine 

H. Mueller, appellee, v. Cheryl Mueller, appellant, 

Margo Loop, individually, intervenor-appellee, 

and Gary Mueller and Ryan G. Tessendorf, 

Personal Representative of the 

Estate of Lorine H. Mueller, 

deceased, appellees.

___ N.W.2d ___

Filed October 26, 2021. No. A-20-840.

1. Summary Judgment. Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no 

genuine issue as to any material fact 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.

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. Motions to Vacate: Appeal and Error. In reviewing a trial court’s 

action in vacating, or refusing to vacate, a judgment or order, an appellate court will uphold and affirm the trial court’s action in the absence 

of an abuse of discretion.

4. Courts: Judgments: Time. After the final adjournment of the term of 

court at which a judgment has been rendered, the court has no authority 

or power to vacate or modify the judgment except for the reasons stated 

in Neb. Rev. Stat. § 25-2001 (Reissue 2016) and within the time limits 

specified by Neb. Rev. Stat. § 25-2008 (Reissue 2016).

5. Courts: Judgments: Fraud: Time. Notwithstanding the 2-year time 

limitation prescribed by Neb. Rev. Stat. § 25-2008 (Reissue 2016), 

the Nebraska Supreme Court has adopted a discovery rule for cases 

Nebraska Supreme Court Online Library

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

11/02/2021 12:07 AM CDT
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involving a claim of a fraudulently obtained judgment. Such discovery 

rule provides that when the fraud has not been discovered, or in the 

exercise of reasonable diligence could not have been discovered, during 

the 2 years immediately following the fraudulently obtained judgment, 

an exception to the strict application of the 2-year time limitation prescribed by § 25-2008 exists.

Appeal from the District Court for Platte County: Robert R. 

Steinke, Judge. Affirmed.

Clark J. Grant, of Grant & Grant, for appellant.

Neal J. Valorz, of Sipple, Hansen, Emerson, Schumacher, 

Klutman & Valorz, for appellee Margo Loop.

Ryan G. Tessendorf, pro se.

Riedmann and Arterburn, Judges.

Arterburn, Judge.

INTRODUCTION

In January 2016, Cheryl Mueller filed a confession of judgment in an action brought against her by Margo Loop (Margo), 

who was acting in her capacity as guardian and conservator 

for Lorine H. Mueller. The confession of judgment resulted 

in a judgment being entered against Cheryl in the amount of 

$340,846.52. More than 31⁄2 years later, Cheryl filed a complaint seeking to vacate the judgment that had been entered 

against her. In response to the complaint, Margo filed a motion 

for summary judgment. The district court granted Margo’s 

motion for summary judgment, finding that Cheryl’s complaint 

to vacate was “time-barred as a matter of law.” Cheryl appeals 

from the district court’s decision, challenging the court’s determination that her complaint was barred by the relevant statute 

of limitations. For the reasons set forth herein, we affirm the 

decision of the district court to grant Margo’s motion for summary judgment and to dismiss Cheryl’s complaint to vacate.
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BACKGROUND

In 2015, Margo was acting as the guardian and conservator 

for her mother, Lorine. In her capacity as Lorine’s guardian 

and conservator, Margo initiated an action against Cheryl, the 

widow of one of Lorine’s two sons (2015 district court proceedings). The action alleged, among other claims, that Cheryl 

had breached her fiduciary duties and had committed acts of 

fraud, unjust enrichment, negligence, and conversion.

On January 8, 2016, Margo and Cheryl jointly filed a confession of judgment in the 2015 district court proceedings. 

The confession of judgment provided that Cheryl “understands 

and confesses that Judgment should be and hereby is entered 

in favor of [Margo] against [Cheryl] in the amount of Three 

Hundred Forty Thousand, Eight Hundred Forty-Six and 52/100 

Dollars ($340,846.52).” That same day, Margo and Cheryl 

also jointly filed a stipulation for entry of judgment. Therein, 

they agreed that pursuant to the confession of judgment, a 

judgment should be entered against Cheryl in the amount of 

$340,846.52. The district court accordingly entered such judgment against Cheryl.

Cheryl’s decision to confess judgment was apparently the 

result of a broader settlement agreement entered into by Cheryl, 

Margo, and other related parties, which agreement resolved not 

only the 2015 district court proceedings, but also resolved 

other pending and future claims between all the parties to the 

settlement agreement. The agreement explains:

[T]he parties, without admitting liability, fault or indebtedness, successfully negotiated a resolution of all issues, 

complaints and claims, and the parties desire to formalize 

their settlement of any and all claims, known or unknown, 

that they have or may have against each other, including, 

but not limited to, any claims raised or which could have 

been raised relating to their disputes, claims, and defenses 

in the Pending Litigation.

As is relevant to the 2015 district court proceedings, the 

settlement agreement provided as follows:
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Cheryl shall execute the Confession of Judgment in the 

District Court Lawsuit . . . simultaneously with the execution of this Agreement. Cheryl shall instruct her legal 

counsel to execute the Joint Stipulation for Entry of 

Judgment and the Order for Entry of Judgment . . . simultaneously with the execution of this Agreement. Margo 

shall file the executed Confession of Judgment, the Joint 

Stipulation for Entry of Judgment and proposed Order for 

Entry of Judgment in the District Court Lawsuit. Each 

party shall bear her own attorney fees, expert fees and 

costs. Margo, and Lorine’s estate shall not seek to collect 

the Confession of Judgment. The Confession of Judgment 

shall not be forgiven.

Later on in the settlement agreement, the parties, “[f]or purposes of clarification,” stated that under the terms of the 

agreement, “Margo is not waiving or relinquishing any rights 

to file a will contest action, a challenge to a personal represent

ative or any actions in any estate proceeding of Lorine after 

her passing.”

Lorine died in February 2017, a little over a year after 

Cheryl agreed to confess judgment in the 2015 district court 

proceedings. At the time of her death, Lorine was a resident 

of Kansas. Shortly after Lorine’s death, Margo filed a petition 

in the district court for Sedgwick County, Kansas, to probate 

a will authored by Lorine in 1979. This will identified Margo 

and her surviving brother, Gary Mueller, as the devisees.

One week after Margo filed her petition to probate the 1979 

will, Ryan G. Tessendorf also filed a petition to probate a will 

authored by Lorine. However, this will was authored in 2007 

and identified the devisees as Margo, Gary, and Cheryl. In fact, 

the 2007 will devised to Cheryl the majority of Lorine’s estate. 

In the 2007 will, Tessendorf was appointed by Lorine to serve 

as her personal representative.

Ultimately, in an order dated October 10, 2019, the district court in Kansas determined that the 2007 will should 
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be probated. The court appointed Tessendorf as the personal 

representative.

During the pendency of the will contest proceedings, the 

district court in Kansas appointed a special administrator for 

Lorine’s estate in order to preserve the assets of the estate and 

to pay all necessary expenses of the estate, pending the decision regarding which will to probate. In November 2017, a few 

months after the special administrator was appointed, Margo 

filed a motion with the Kansas district court, asking that the 

special administrator be given the authority to obtain a certified copy of the confession of judgment entered by Cheryl in 

the 2015 district court proceedings. Margo further requested 

that the special administrator register that confession of judgment in the Kansas district court “for the purpose of offset of 

the obligation due under the Confession of Judgement and, to 

the extent not otherwise satisfied, for execution against the 

assets of Cheryl.” In the motion, Margo explained her request 

as follows:

In the event that the Court determines that Cheryl . . . is 

a beneficiary under the Estate of Lorine . . . and would 

otherwise be entitled to a distribution from the Estate, 

the amount due to the Estate under the Confession of 

Judgment should be repaid prior to [Cheryl’s] receipt 

of any distribution from the Estate. In the event Cheryl 

. . . has not satisfied the judgment or any other obligation prior to any potential distribution from the Estate, the 

Court should order that any distribution due to Cheryl . . . 

be applied to any remaining obligation due the Estate.

In response to Margo’s motion requesting the special 

administrator to register the confession of judgment from the 

2015 district court proceedings in the Kansas district court, 

on December 5, 2017, Cheryl filed a motion indicating that 

the confession of judgment was fraudulently obtained and 

should not be accorded “lien status” in the estate proceedings. Specifically, Cheryl asserted that Margo was attempting 

to collect the judgment from her in direct violation of the 
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terms of the settlement agreement which provided, “Margo, 

and Lorine’s estate shall not seek to collect the Confession 

of Judgment.”

In addition to the motion filed in the Kansas district court, 

Cheryl also filed a verified motion for an ex parte order for 

enforcement of the settlement agreement in the district court 

for Platte County, Nebraska, in November 2017. Cheryl’s 

motion indicates it was filed using the same case number as 

the 2015 district court proceedings. Therein, Cheryl requested 

that the district court enforce the terms of the parties’ settlement agreement by prohibiting Margo or any other party from 

registering the confession of judgment in the Kansas probate 

proceedings. There is nothing in our record which indicates 

the district court took any action on the verified motion for an 

ex parte order.

Cheryl filed a third motion objecting to the registration of 

the confession of judgment in the Kansas probate proceedings 

in the Kansas district court in June 2018. Essentially, Cheryl 

argued that the Kansas district court lacked the authority to 

consider the confession of judgment.

The Kansas district court considered whether it should 

enforce the confession of judgment. At the close of a hearing 

held on March 3, 2020, related to this topic, the court stated:

I’ll just say, I believe I have jurisdiction to enforce a 

judgment. . . .

With that said and to that end, after considering the 

arguments of the parties, I do believe that I have authority 

to set off the amount of the confession of judgment plus 

accrued interest against [Cheryl’s] distributive share of 

the estate . . . . I’ll withhold enforcing that judgment until 

you have had an opportunity to go through the process 

up in Platte County, Nebraska, to attempt to set aside the 

judgment . . . .

The court concluded that it would withhold ordering the 

executor to apply the equitable setoff until the Nebraska court 
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had an opportunity to determine whether the judgment should 

be set aside.

A few months prior to that hearing in the Kansas district 

court, on November 19, 2019, in the district court for Platte 

County, Cheryl had filed a complaint to vacate the January 

2016 confession of judgment and resulting court order pursuant to Neb. Rev. Stat. § 25-2001 (Reissue 2016). The complaint 

listed the name of the case and the case number from the 2015 

district court proceedings. On November 27, Cheryl filed an 

amended complaint.

Tessendorf filed an answer to Cheryl’s complaint. In addition, Margo intervened in the proceedings and filed her own 

answer. In Margo’s answer, she asserted that Cheryl’s complaint was not timely filed pursuant to the statute of limitations espoused in Neb. Rev. Stat. § 25-2008 (Reissue 2016), 

which required that proceedings to vacate a judgment pursuant 

to § 25-2001(4) be commenced no later than 2 years after the 

entry of the judgment or order. Subsequently, Margo filed a 

motion for summary judgment. Margo asserted that Cheryl’s 

“Complaint and Amended Complaint should be dismissed in 

their entirety as they fail to state a claim upon which relief 

can be granted because [Cheryl] is time barred from purposing 

this action.”

Subsequently, on June 8, 2020, Cheryl filed a second 

amended complaint, which became the operative pleading. In 

the second amended complaint, Cheryl again asked that the 

district court vacate the January 2016 confession of judgment 

and resulting court order pursuant to § 25-2001(4), as the judgment “was procured by the fraudulent representations of Margo 

. . . in representing that the Confession of Judgment would 

never be enforced.” However, in this complaint, Cheryl for the 

first time explained that it was her understanding that Margo 

agreed not to collect the judgment entered against Cheryl 

because it would, instead, be used “to offset substantial capital 

gain tax that would be incurred by Lorine . . . as a result of 

her selling appreciated farm real estate.” Cheryl indicated that 
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she learned in December 2019 that the judgment had not been 

used in this manner. Also in the second amended complaint, 

Cheryl affirmatively alleged that she did not discover sufficient 

evidence of Margo’s alleged fraud within the time allowed by 

§ 25-2008 for commencing the proceeding to vacate the confession of judgment.

On the same day that the second amended complaint was 

filed, a hearing was held on Margo’s motion for summary 

judgment. After the hearing, the district court entered an 

order granting Margo’s motion. The district court found that 

Cheryl’s complaint to vacate was filed “roughly 3 years and 

10 months after the entry of the judgment on January 8, 2016” 

and that, as a result, “it was clearly commenced outside the 

[2-year] time constraints of §25-2008.” The court further 

found that because the evidence established Cheryl “knew of, 

or in the exercise of reasonable diligence could have discovered, Margo’s alleged fraud” within 2 years after the entry 

of the January 2016 judgment, there was no valid reason to 

extend the 2-year time limitation provided by § 25-2008. The 

district court concluded:

[H]aving determined that [Cheryl’s] complaint to vacate 

the January 8, 2016, judgment is time-barred as a matter of law, the Court finds that the motion for summary 

judgment filed by [Margo] on March 19, 2020, shall be 

sustained. That said, [Cheryl’s] operative second amended 

complaint to vacate order for entry of judgment filed on 

June 8, 2020, is ordered dismissed with prejudice.

Cheryl appeals from the district court’s decision to grant 

Margo’s motion for summary judgment and dismiss her complaint to vacate with prejudice.

ASSIGNMENTS OF ERROR

On appeal, Cheryl argues that the district court erred in 

determining that the statute of limitations bars her complaint to 

vacate the January 2016 judgment against her. She also argues 

that the district court erred in not finding that the statute of 
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limitations was tolled pending the outcome of the will contest 

proceedings in the Kansas district court.

STANDARD OF REVIEW

[1,2] Summary judgment is proper when the pleadings and 

the evidence admitted at the hearing disclose that there is no 

genuine issue as to any material fact 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. Meyer 

Natural Foods v. Greater Omaha Packing Co., 302 Neb. 

509, 925 N.W.2d 39 (2019). 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. Id.

[3] In reviewing a trial court’s action in vacating, or refusing 

to vacate, a judgment or order, an appellate court will uphold 

and affirm the trial court’s action in the absence of an abuse of 

discretion. See In re Estate of West, 226 Neb. 813, 415 N.W.2d 

769 (1987).

ANALYSIS

On appeal, Cheryl challenges the decision of the district 

court to grant Margo’s motion for summary judgment. Cheryl 

alleges that the court erred in determining that the 2-year 

statute of limitations to bring her complaint to vacate was not 

extended due to her lack of knowledge regarding the alleged 

fraud perpetrated by Margo in the execution of the settlement 

agreement and the resulting confession of judgment. Upon 

our review, we find no error in the district court’s decision to 

grant Margo’s motion for summary judgment on the basis that 

Cheryl’s complaint to vacate was not timely filed.

[4] Our law is well settled that after the final adjournment 

of the term of court at which a judgment has been rendered, 

the court has no authority or power to vacate or modify the 

judgment except for the reasons stated in § 25-2001 and 
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within the time limits specified by § 25-2008. See Woodcock v. 

Navarrete-James, 26 Neb. App. 809, 923 N.W.2d 769 (2019). 

While a court’s jurisdiction under § 25-2001 is concurrent with 

its equity jurisdiction, this does not mean a party can seek to 

set aside a judgment or order as an equitable remedy where a 

remedy exists under the statute. Rather, “a litigant seeking to 

proceed in equity must show that § 25-2001 is not applicable, 

because equitable relief does not lie where there is a remedy 

at law.” Western Fertilizer v. City of Alliance, 244 Neb. 95, 

101, 504 N.W.2d 808, 813 (1993). See, also, Hornig v. Martel 

Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000) (affirming 

court’s exercise of equity jurisdiction to vacate judgment where 

it was clear that none of provisions in § 25-2001(4) could have 

served parties seeking to vacate judgment).

In her complaint to vacate, Cheryl sought to vacate the 

confession of judgment and the resulting entry of judgment 

against her in the 2015 district court proceedings. Cheryl filed 

her complaint to vacate in November 2019. The judgment 

she sought to vacate was entered against her in January 2016. 

As such, her complaint to vacate was clearly filed after the 

adjournment of the term of court at which the judgment had 

been rendered. In fact, her complaint to vacate was filed almost 

4 years after the judgment had been rendered.

Cheryl sought vacation of the judgment entered against her 

in January 2016 based on § 25-2001(4), which provides, in 

part: “A district court may vacate or modify its own judgments 

or orders after the term at which such judgments were made 

. . . (b) for fraud practiced by the successful party in obtaining the judgment or order . . . .” The fraud alleged by Cheryl 

was Margo’s agreement that she would not seek to collect on 

the judgment entered against Cheryl and Margo’s subsequent 

action to see that Cheryl’s inheritance from Lorine’s estate was 

offset by the amount of the January 2016 judgment.

[5] Section 25-2008 requires:

Proceedings to vacate or modify a judgment or order, 

for the causes mentioned in subsection (4) of section 

25-2001 must be commenced no later than two years 
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after the entry of the judgment or order unless the party 

entitled thereto is an infant or person of unsound mind, 

and then no later than two years after removal of such 

disability.

However, notwithstanding the time limitation prescribed by 

§ 25-2008, the Nebraska Supreme Court has adopted a discovery rule for cases involving a claim of a fraudulently obtained 

judgment. See In re Estate of West, 226 Neb. 813, 415 N.W.2d 

769 (1987). Such rule provides that when the fraud has not 

been discovered, or in the exercise of reasonable diligence 

could not have been discovered, during the 2 years immediately following the fraudulently obtained judgment, an exception to the strict application of the 2-year time limitation prescribed by § 25-2008 exists. See, In re Estate of West, supra; 

Katz v. Swanson, 147 Neb. 791, 24 N.W.2d 923 (1946).

In this case, the district court concluded that the fraud exception to the 2-year time limitation prescribed by § 25-2008 did 

not apply because Cheryl knew, or in the exercise of reasonable diligence could have known, of the alleged fraud perpetrated by Margo within 2 years of the entry of the January 2016 

judgment. We agree with the finding of the district court.

Cheryl asserts that Margo committed fraud in inducing her 

to enter the confession of judgment by promising not to collect 

on the judgment in the settlement agreement, but all the while 

intending to attempt to offset the judgment against Cheryl’s 

inheritance from Lorine’s estate. In so doing, Cheryl equates 

the attempt to offset with collection. The evidence before the 

court reveals that Cheryl was made aware of Margo’s intentions to attempt to offset the judgment against Cheryl’s inherit

ance as early as November 2017, when Margo filed a motion 

with the Kansas district court, asking that the special administrator of Lorine’s estate be given the authority to obtain a 

certified copy of the confession of judgment signed by Cheryl 

in the 2015 district court proceedings. In that motion, Margo 

explicitly requested that the special administrator register that 

confession of judgment in the Kansas district court “for the 
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purpose of offset of the obligation due under the Confession of 

Judgement and, to the extent not otherwise satisfied, for execution against the assets of Cheryl.” At that point in time, Cheryl 

was very clearly put on notice of Margo’s position that seeking 

an offset was not a “collection” effort and thus not barred by 

the settlement agreement. At the summary judgment hearing, 

Cheryl’s counsel admitted that in November 2017, Cheryl “certainly suspected some fraud.”

By November 2017, when Margo filed this motion, Cheryl 

still had at least 2 months to file her complaint to vacate 

the January 2016 judgment pursuant to the time limitation 

in § 25-2008. However, she chose not to do so. Instead, on 

November 28, she filed a verified motion for an ex parte order 

in the Platte County District Court. In that verified motion, 

Cheryl acknowledged that Margo was attempting to offset 

from Cheryl’s inheritance the amount of the January 2016 

order. Cheryl argued that this violated the terms of the parties’ 

settlement agreement. Cheryl next filed a motion in the Kansas 

district court on December 5, which motion explicitly asserted 

that Margo’s actions in attempting to register the confession of 

judgment and resulting order in the probate proceedings was 

“fraudulent.” Cheryl’s motions, both filed within the 2-year 

period after the date of the January 2016 judgment, indicate 

that Cheryl was aware of the alleged fraud by Margo. In fact, 

contrary to Cheryl’s assertions in her brief to this court, the 

substance of the motions and the affidavit attached to her 

motion filed in Kansas indicate Cheryl’s full understanding of 

the implications of Margo’s actions. In her affidavit, Cheryl 

clearly stated her belief that Margo was not honoring the settlement agreement and was in fact seeking to collect the debt by 

way of offset. Given Cheryl’s knowledge of the alleged fraud 

prior to the passage of the 2-year statute of limitations, the district court was correct in concluding that the fraud exception to 

the time constraints in § 25-2008 does not apply.

To the extent that Cheryl also asserts that Margo committed 

fraud by telling Cheryl that instead of collecting the January 
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2016 judgment entered against her, Lorine was going to use the 

judgment in order to offset certain capital gains taxes, we find 

Cheryl also had notice of these facts within 2 years after the 

judgment was entered against her. In the affidavit accompanying Cheryl’s December 5, 2017, motion which was filed in the 

Kansas district court, Cheryl explains as follows:

Margo . . . and her attorney . . . represented to me and 

my attorney . . . that the Confession of Judgment would 

benefit Lorine . . . by allowing her to take a loss deduction on her income tax return to offset the substantial 

capital gain tax she owed that resulted from the sale of 

real estate. I would not have agreed to the Settlement 

and Mutual Release Agreement but for the fact that it 

was stipulated that the confessed judgment would never 

be collected and but for the fact that Margo . . . and her 

attorney represented to me and my attorney that it would 

assist Lorine . . . regarding her income tax obligations.

The language in Cheryl’s affidavit again clearly indicates her 

awareness of any potential fraud being perpetrated by Margo 

as it related to the settlement agreement and the confession of 

judgment. And, while Cheryl argues that she did not definitively learn that the judgment was not used to assist Lorine in 

her income tax obligations until December 2019, which was 

after the 2-year statute of limitations for filing the complaint 

to vacate had passed, by the time of her December 5, 2017, 

affidavit, Cheryl had notice of the bottom line. Margo was 

seeking to offset the judgment against any distribution Cheryl 

may receive from Lorine’s estate, which was the ultimate 

basis for the alleged fraud. Again, given Cheryl’s knowledge 

of the alleged fraud prior to the passage of the 2-year statute 

of limitations, the district court was correct in concluding that 

the fraud exception to the time constraints in § 25-2008 does 

not apply.

In her brief on appeal, Cheryl also asserts that the 2-year 

statute of limitations in § 25-2008 should have been tolled 

or extended during the will contest proceedings. Specifically, 
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Cheryl asserts that until the Kansas district court determined 

that the 2007 will should be probated and the Kansas appellate 

court affirmed that decision, there was no personal representative of the estate (or executor of the estate, as it is referred to 

under Kansas law) whom she could have served with her complaint to vacate. We find Cheryl’s assertion in this regard to be 

without merit.

In July 2017, while the will contest proceedings were pending, the Kansas district court appointed a special administrator 

for Lorine’s estate. Kansas law allows for the appointment of 

such a special administrator:

For good cause shown a special administrator may 

be appointed pending the appointment of an executor or 

administrator . . . . The appointment may be for a specified time, to perform duties respecting specific property, 

or to perform particular acts. The duties of a special 

administrator shall be stated in the order of appointment. 

The special administrator may be required to give bond 

in such sum as the court shall direct. Such administrator shall make such reports as the court shall direct, and 

shall account to the court upon the termination of his or 

her authority.

Kan. Stat. Ann. § 59-710 (2005).

In its letters of appointment, the Kansas district court 

ordered the special administrator to perform a variety of specific duties, including paying taxes that had come due on real 

estate owed by Lorine, maintaining certain insurance policies, 

making payments for incurred debts, and collecting payment 

from existing debtors. In addition, the special administrator 

was to “[p]erform all other acts necessary to preserve the assets 

and to pay all necessary expenses of the Estate.”

While Cheryl argues in her brief on appeal that the special 

administrator appointed during the pendency of the will contest proceedings was not given the explicit authority to accept 

service of complaints or claims filed against the estate, we find 

that the general authority provided to the special administrator 
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in the letters of appointment provides such authority. In the 

letters of appointment, the Kansas district court authorized 

the special administrator to perform necessary acts to preserve 

the assets of the estate. We read this language to include the 

authority to accept service of a claim made against the estate 

regarding a potential asset pending the will contest.

Upon our review, we find that Cheryl could have filed her 

complaint to vacate and served the special administrator with 

that complaint prior to the expiration of the 2-year period of 

limitation from the date the agreed-to judgment was entered. 

Cheryl learned of Margo’s intent to offset Cheryl’s inheritance 

in November 2017 and almost immediately took action to 

oppose Margo’s actions in both Nebraska and Kansas. She had 

the ability to file and serve her complaint at that time, but did 

not do so. Her claim that she could not file her complaint to 

vacate until after an executor or personal representative was 

appointed is without merit.

CONCLUSION

We affirm the decision of the district court to grant Margo’s 

motion for summary judgment and to dismiss Cheryl’s complaint to vacate the January 2016 judgment entered against her. 

Cheryl’s complaint to vacate was not filed within the 2-year 

statute of limitations espoused in § 25-2008 and no exceptions 

apply to that time constraint. As such, Cheryl’s complaint is 

time barred as a matter of law.

Affirmed.

Bishop, Judge, participating on briefs.