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IN RE ESTATE OF FILSINGER

Cite as 29 Neb. App. 809

In 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 independently of the conclusion reached by the trial court.

5. Decedents’ Estates: Appeal and Error. An appellate court reviews probate 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.

Nebraska Supreme Court Online Library

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

05/11/2021 12:09 AM CDT
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IN RE ESTATE OF FILSINGER

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7. 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 personal 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 sections 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 personal 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 interpretation 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 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.
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IN RE ESTATE OF FILSINGER

Cite as 29 Neb. App. 809

18. Trial: Evidence. Where reasonable minds could draw different conclusions 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 terminate the action or constitute a final disposition of the case.

26. Decedents’ Estates: Final Orders: Claims: Fees. Fee orders in a probate 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. 809

Arterburn, 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 residence 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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A 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 parties 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 approximate 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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After 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 communication 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 interpretation 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 accounting 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 nonprobate 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 testate proceeding (the Formal Petition), which was file stamped 

by the county court on January 10, 2014. In the Formal 
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Petition, 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 additional asset, not previously inventoried, which was a promissory note of $60,000 payable to Orville’s estate. He disclosed 

that Berniece would receive, by virtue of joint tenancy ownership 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, payments, 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 affidavit 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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Cite as 29 Neb. App. 809

the Personal Representative’s attorney filed an affidavit stating that he mailed a notice of hearing of the complete settlement 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 accounting, 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 discharged 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, alleging 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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Cite as 29 Neb. App. 809

July 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 representative 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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Cite as 29 Neb. App. 809

distribution. Id. Under that order, Berniece, by virtue of joint 

tenancy ownership and transfer and assignment of the promissory 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 fraudulently 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 disclose 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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remained 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 agreement 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 proceeding 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 information 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 correctly 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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with what was in the online electronic court file. They asserted 

that the initial basis for their concerns was a postnuptial agreement that stated that Berniece would receive $1 million. They 

also stated that Berniece confirmed this agreement by executing 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 present 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. §§ 30-2485 

and 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 granting the Personal Representative’s motion for summary judgment. 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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determined that there was no evidence of fraud, misrepresentation, or inadequate disclosure that would toll the time for filing 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 judgment 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 application 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 settlement 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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judgment 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 assignment 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 requirements 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 judgment, we view the evidence in the light most favorable to the 

party against whom the judgment was granted, giving that 
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party 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 conclusion 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 knowledge 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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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. § 30-2464(a). 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. § 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, misrepresentation, or inadequate disclosure related to the settlement of the decedent’s estate.

[11,12] Under the plain language of this statute, the claimant 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 inadequate 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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was filed more than 6 months after the closing statement was 

filed and because there was no evidence of fraud, misrepresentation, 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 limitation 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 statement was filed. The Nebraska Probate Code does not specifically 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 comment 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 statement 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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must 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 disbursements. 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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published 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 provided 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 distributees 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 documents 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 representative 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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interpretation 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 statement was filed with the court on January 10. Because the closing 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 inadequate disclosure that would toll the time for filing a claim 

under this statute.” We find no error in this determination.
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[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 discovery 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 provided inadequate disclosure with respect to the following: failing 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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(Reissue 2016). The petition may request the court to determine testacy, consider the final account, approve an accounting 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 representative 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 publication. An affidavit of publication completed by the clerk of 

the Sidney Sun Telegraph was received in evidence establishing 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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Petition for complete settlement after the informal testate proceeding, 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 presumption 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 proceedings 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 interested 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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were 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 disclosure 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 assignment 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 tenancy 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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to 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 correspondence 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 inadequate 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 disclosure is apparent based on the misfiling or lack of filing of 
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the 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, misrepresentation, 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 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. 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 sufficient evidence to demonstrate that it is entitled to judgment 

as a matter of law. Id. When the parties’ evidence would support reasonable, contrary inferences on the issue for which a 

movant seeks summary judgment, it is an inappropriate remedy. Id. Where reasonable minds could draw different conclusions 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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all 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 perpetrated 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 alleging 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 denying 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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in 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 prosecuting a proceeding in good faith. The proceedings herein 

occurred under the Nebraska Probate Code and therefore constitute 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 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). See In re Guardianship & Conservatorship of 

Forster, supra.

We have previously determined that the fees for a temporary 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 conservator from his or her duties. See id. In In re Guardianship 
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& 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 representative. 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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to 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 attorney 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.