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SPARKS V. MAC

Cite as 31 Neb. App. 461

Kayleen Sparks, appellant, v. David Mach, 

Special Administrator of the Estate 

of Leo Mach, deceased, appellee.

___ N.W.2d ___

Filed November 15, 2022. No. A-21-1041.

1. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusion.

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 the facts and 

that the moving party is entitled to judgment as a matter of law.

3. ____: ____. In reviewing the grant of a motion for 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. Decedents’ Estates: Statutes. The Nebraska Probate Code provides the 

procedure for bringing a claim against a decedent’s estate.

5. Decedents’ Estates: Claims. Under Neb. Rev. Stat. § 30-2404 (Reissue 

2016), a claim against a decedent’s estate cannot be commenced before 

the county court has appointed a personal representative.

6. 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.

7. Decedents’ Estates: Executors and Administrators: Statutes. Because 

a personal representative is not a natural person, but, rather, an entity 

created by statute through a court order of appointment, when an estate 

is closed and the personal representative discharged, there is no viable 

entity or person to sue.

Nebraska Supreme Court Online Library

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

11/22/2022 09:06 AM CST
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SPARKS V. MAC

Cite as 31 Neb. App. 461

8. Limitations of Actions. Under certain situations as set forth in Neb. 

Rev. Stat. § 25-201.02 (Reissue 2016), an amended complaint may 

relate back to the commencement date of an earlier complaint.

Appeal from the District Court for Douglas County: Todd 

O. Engleman, Judge. Affirmed.

William J. Pfeffer, of Pfeffer Law Offices, for appellant.

Kyle Wallor, of Lamson, Dugan & Murray, L.L.P., for 

appellee.

Moore, Riedmann, and Welch, Judges.

Moore, Judge.

INTRODUCTION

Kayleen Sparks filed this negligence action against David 

Mach, as special administrator of the estate of the decedent, 

Leo Mach (Mach). At the time of Sparks’ original complaint, 

Mach’s estate was closed and David had been discharged as 

special administrator. Sparks’ motion to reopen the estate and 

reappoint David was granted, and she subsequently filed an 

amended complaint, which she sought to relate back to her 

original pleadings. The district court found Sparks’ complaint 

to be a legal nullity and granted David’s motion for summary 

judgment. We affirm.

STATEMENT OF FACTS

Sparks and Mach were involved in a motor vehicle accident 

in Douglas County, Nebraska, on March 3, 2017. Mach died 

on September 6, apparently of causes unrelated to the accident 

with Sparks.

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

November 20, 2018, Mach’s son, David, was appointed special 

administrator of the estate. The estate was closed on December 

11, 2019, and David was discharged as special administrator.

On February 24, 2021, Sparks filed a complaint against 

“DAVID MACH, Special Administrator for THE ESTATE OF 

LEO MACH,” which alleged Mach’s negligence in the March 
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Cite as 31 Neb. App. 461

3, 2017, accident. Upon learning that the estate had previously 

closed, Sparks filed a motion on March 4, 2021, in Douglas 

County Court to reopen the estate and reappoint David as special administrator. The motion was granted the following day. 

David was served with the original complaint on March 8.

On April 7, 2021, David filed a motion to dismiss, alleging 

a lack of jurisdiction, insufficiency of process, and a failure by 

Sparks to state a claim upon which relief could be granted.

Sparks filed an amended complaint on April 21, 2021. The 

amended complaint added the assertion that although David 

had been discharged as special administrator in December 

2019, Mach’s estate had been reopened and David reappointed 

as special administrator on March 5. The amended complaint 

was again filed against David as the special administrator of 

Mach’s estate. On April 23, Sparks filed a motion requesting 

leave to again amend her complaint. David was served with the 

amended complaint the same day.

A hearing on David’s motion to dismiss was held on May 

14, 2021. Both parties agreed that David was not the special 

administrator of Mach’s estate at the time Sparks filed her 

original negligence complaint. However, Sparks argued that 

because David was reappointed as special administrator of 

Mach’s reopened estate between the filing and service of the 

original complaint, and because Sparks’ amended complaint 

related back to her original complaint, any alleged defect in 

the original complaint was cured. David argued that based 

on Nebraska case law, an estate must first be opened and a 

personal representative or special administrator appointed in 

order for there to be an entity to sue. Because David had been 

discharged as the special administrator from Mach’s closed 

estate at the time Sparks filed her original complaint, David 

argued that the suit was a legal nullity and could not be related 

back to the original complaint. The court took the matter 

under advisement.

In a detailed order entered on May 27, 2021, the district 

court denied David’s motion to dismiss. The court first noted 
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Cite as 31 Neb. App. 461

that, because David had been reappointed as special administrator and was served by certified mail on March 8, the allegations in his motion to dismiss related to jurisdiction and service 

failed. Turning to David’s allegation that Sparks had failed to 

state a claim upon which relief could be granted, the court 

observed that Nebraska appellate courts have not previously 

addressed whether a plaintiff may cure an improperly filed 

claim against a former special administrator of a closed estate 

or whether such a filing is a legal nullity and thus incurable. 

The court distinguished the facts of the present case with those 

cited by David. Because the court found the case involved 

a novel question of law, it declined to decide it on a motion 

to dismiss.

The court also granted Sparks’ motion for leave to amend 

and assumed, without deciding, that Sparks’ amended complaint stated a claim for relief.

On June 1, 2021, Sparks filed a second amended complaint. 

The second amended complaint added a paragraph related to 

Sparks’ age and life expectancy. David was served with the 

second amended complaint on June 3.

On July 2, 2021, David filed an answer to Sparks’ second 

amended complaint and a motion for summary judgment. In 

his answer, David noted that he was not reappointed as special 

administrator, and Mach’s estate not reopened, until March 

5—2 days after the statute of limitations for negligence had 

run. On July 15, Sparks filed responses to David’s affirmative 

defenses and motion for summary judgment.

A hearing was held on David’s motion for summary judgment on August 3, 2021. A bill of exceptions from this hearing is not included in our record. In an order entered on 

September 16, the district court granted David’s motion for 

summary judgment and dismissed Spark’s complaint with 

prejudice. Specifically, the court found that Spark’s original complaint was an attempt to assert a claim against a 

closed estate and its discharged representative, and thus was 

a legal nullity. The court determined that neither the amended 
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SPARKS V. MAC

Cite as 31 Neb. App. 461

complaint nor the second amended complaint related back to 

the original complaint to cure the alleged defects because the 

original complaint was a nullity. The court further found that 

because Sparks failed to properly commence her claim against 

David as the special administrator of Mach’s estate, she therefore failed to comply with the applicable 4-year statute of 

limitations, which ran on March 3.

On September 24, 2021, Sparks filed a motion to reconsider 

and vacate. While that motion was pending, Sparks appealed 

the district court’s grant of summary judgment to this court. 

On October 25, we dismissed Sparks’ appeal in case No. 

A-21-828 for lack of jurisdiction. On December 9, the district 

court entered an order denying Sparks’ motion to reconsider 

and vacate.

Sparks appeals.

ASSIGNMENTS OF ERROR

Sparks assigns, reordered, that the district court erred in (1) 

finding that Sparks’ original complaint was a legal nullity, (2) 

finding that Sparks’ amended complaint did not relate back 

to the original complaint, and (3) granting Mach’s motion for 

summary judgment.

STANDARD OF REVIEW

[1] When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s conclusion. Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174 

(2022).

[2] 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 the facts 

and that the moving party is entitled to judgment as a matter 

of law. Id.

[3] In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light 

most favorable to the party against whom the judgment was 
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Cite as 31 Neb. App. 461

granted, giving that party the benefit of all reasonable inferences deducible from the evidence. Id.

ANALYSIS

The pertinent facts are undisputed, and we see this appeal as 

purely a question of law.

Legal Nullity.

Sparks alleges that the district court erred in finding her 

original complaint to be a legal nullity. She asserts that her 

corrective actions, namely moving to reopen Mach’s estate and 

reappoint David, are specifically addressed in Nebraska case 

law, but were ignored by the court.

[4-6] The Nebraska Probate Code provides the procedure 

for bringing a claim against a decedent’s estate. Babbitt v. 

Hronik, 261 Neb. 513, 623 N.W.2d 700 (2001). Neb. Rev. 

Stat. § 30-2404 (Reissue 2016) states in part that “[n]o proceeding to enforce a claim against the estate of a decedent 

or his successors may be revived or commenced before the 

appointment of a personal representative.” An action is commenced on the date the complaint is filed with the court. Neb. 

Rev. Stat. § 25-217 (Cum. Supp. 2020). 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. In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 

94 (2022).

[7] Nebraska appellate courts have long held that a personal representative is not a natural person, but, rather, an 

entity created by statute through a court order of appointment. See Pilger v. State, 120 Neb. 584, 585, 234 N.W. 403, 

404 (1931) (“[e]xecutors and administrators in Nebraska are 

creatures of statute”). Thus, when an estate is closed and the 

personal representative discharged, there is no viable entity 

or person to sue. See, Correa v. Estate of Hascall, 288 Neb. 

662, 850 N.W.2d 770 (2014); Estate of Hansen v. Bergmeier, 

20 Neb. App. 458, 825 N.W.2d 224 (2013). We turn to the 
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Nebraska appellate cases which discuss suits initiated against 

closed estates.

Neb. Rev. Stat. § 30-2457 (Reissue 2016) permits a special 

administrator to be appointed after notice when a personal 

representative cannot or should not act and also permits the 

appointment of a special administrator without notice when an 

emergency exists. A special administrator appointed by order 

of the court in any formal proceeding has the power of a personal representative except as limited in the appointment and 

duties as prescribed in the order. Neb. Rev. Stat. § 30-2460 

(Reissue 2016). In 2018, the county court appointed David as 

special administrator of Mach’s estate for the purpose of executing “any and all documents” and assisting creditors in their 

claims against Mach’s estate “with the power of a Personal 

Representative.” Thus, we find that the case law describing 

the personal representative’s role in managing a claim against 

a decedent’s estate to be applicable to David’s role as special administrator.

Babbitt v. Hronik, 261 Neb. 515, 623 N.W.2d 700 (2001), 

involved a suit by Barbara A. Babbitt against Blanche M. 

Hronik for damages caused by a motor vehicle accident. The 

action was filed after Hronik was deceased, her estate had been 

closed, and her personal representative discharged. At Babbitt’s 

request, the personal representative was reappointed for the 

sole purpose of being served with process. The personal representative was then served with the suit, which named Hronik 

personally. The personal representative moved for summary 

judgment. The district court granted summary judgment and 

determined that the cause of action had not been properly commenced, because Babbitt had failed to file a petition against the 

personal representative.

On appeal, Babbitt argued that she was unaware Hronik 

was deceased until after she had filed her petition and the 

summons was returned unserved. Once she received this information, however, she complied with the correct statutory procedures for bringing a claim against a decedent. The Nebraska 
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Supreme Court found that Babbitt’s claim against Hronik’s 

estate could not have commenced before the county court 

reappointed the personal representative. Id. Further, because 

Babbitt’s suit was directed against Hronik individually, rather 

than against the personal representative acting in her repre

sentative capacity, the action was a nullity. See id.

In Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 825 

N.W.2d 224 (2013), a claimant filed a negligence action related 

to a motor vehicle accident against a discharged personal representative of a closed estate. In his answer to the complaint, 

the former personal representative alleged that the claimant 

had failed to state a claim upon which relief could be granted 

and filed a motion for summary judgment. The district court 

granted summary judgment, finding that an action could not 

be initiated against a former personal representative while the 

estate remained closed.

This court affirmed the district court’s grant of summary 

judgment. We reasoned that

a personal representative is not a natural person, but, 

rather, an entity created by statute through a court order 

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

the estate is closed and the personal representative is 

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

because the tort-feasor is deceased, his or her estate is 

closed, and there is no longer a personal representative.

Id. at 466, 825 N.W.2d at 231. We further found that the 

attempt to assert a claim against a closed estate and its discharged representative constituted a legal nullity. Estate of 

Hansen v. Bergmeier, supra.

Correa v. Estate of Hascall, 288 Neb. 662, 850 N.W.2d 

770 (2014), involved a negligence action arising out of a 

motor vehicle accident, filed against the estate and the estate’s 

personal representative. Prior to Gloria Correa’s filing her 

action, E. Dean Hascall’s estate had been closed and the personal representative discharged. Several months into the suit, 

the estate and its former personal representative moved for 
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summary judgment and Correa filed a motion for an emergency order to reopen the estate, which was granted by the 

probate court. The district court granted the estate’s motion 

for summary judgment.

The Supreme Court, citing our reasoning in Estate of 

Hansen v. Bergmeier, supra, affirmed the district court’s grant 

of summary judgment and found that Correa had failed to 

properly commence her suit against the estate or the personal 

representative, because the estate had been closed and the 

personal representative had been discharged. Correa v. Estate 

of Hascall, supra. Although Correa argued on appeal that her 

motion to reopen the estate related back to her original negligence action, the Supreme Court noted that Correa’s suit 

had been dismissed by operation of law because the newly 

appointed personal representative was not served within 6 

months after the suit’s filing. Id.

Sparks points to Mach v. Schmer, 4 Neb. App. 819, 550 

N.W.2d 385 (1996), in which a claimant filed an action against 

a former personal representative for injuries sustained in a 

motor vehicle accident. In that case, this court held that the 

former personal representative was entitled to summary judgment because she had been discharged and the estate remained 

closed. See Mach v. Schmer, supra. Sparks argues that the 

present case is distinguishable, because the claimant had not 

at any time moved to reopen the estate and have the personal 

representative reappointed. Id. We disagree that such distinction changes the outcome here.

We find that the plain and ordinary meaning of § 30-2404 

prohibits the commencement of a claim against an estate prior 

to the appointment of a special administrator. In this case, 

Sparks’ original complaint failed to comply with § 30-2404, 

because it was filed against David as special administrator 

of Mach’s estate on February 24, 2021. On that date, David 

had been discharged as special administrator and was not 

reappointed until March 5. Although Sparks argues that she 

“quickly rectified the fact that the estate had been closed,” 
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brief for appellant at 17, the fact remains that there was no 

estate open or special administrator appointed at the time 

the complaint was filed. Nor are we persuaded by the fact 

that David was served with the original complaint after he 

was reappointed as special administrator. The controlling fact 

remains that Sparks filed her original complaint, and thus commenced a proceeding to enforce a claim against Mach’s estate, 

before the estate was reopened and David was reappointed. 

Sparks’ actions to rectify the situation occurred after the statute 

of limitations had run.

Sparks’ attempt to assert a claim against a closed estate and 

its discharged special administrator was a nullity. See Estate 

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

(2013). This assignment of error fails.

Relation-Back Doctrine.

Next, Sparks asserts that the district court erred in finding 

that the relation-back doctrine did not apply. She argues that 

her amended pleadings comply with the relevant statutory 

language because she did not change the name of the party 

against whom her original claim was asserted, nor the substance of the claim. Further, the claim asserted in all of Sparks’ 

pleadings was related to the same motor vehicle accident in 

March 2017. Sparks contends that because she obtained an 

order reappointing David special administrator before filing 

her amended complaint, the relation-back doctrine applies and 

allows her original complaint to reach Mach’s estate.

[9] Sparks is generally correct that her pleadings comply with the relation-back doctrine found in Neb. Rev. Stat. 

§ 25-201.02(1) (Reissue 2016). Under certain situations as 

set forth in § 25-201.02, an amended complaint may relate 

back to the commencement date of an earlier complaint. 

Correa v. Estate of Hascall, 288 Neb. 662, 850 N.W.2d 770 

(2014). However, the Nebraska Supreme Court has held that 

an amended complaint does not relate back to the original 

complaint under § 25-201.02 when the original complaint was 
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a nullity. See, Kelly v. Saint Francis Med. Ctr., 295 Neb. 650, 

889 N.W.2d 613 (2017); Reid v. Evans, 273 Neb. 714, 733 

N.W.2d 186 (2007).

In Reid v. Evans, supra, Monica Reid filed a negligence 

action related to a motor vehicle accident against Donald 

Evans, who had died prior to the filing. A copy of the complaint naming Evans as the sole defendant was served on 

the personal representative of Evans’ estate. The personal 

representative filed a motion to dismiss, and Reid sought to 

amend her complaint to add the personal representative under 

the relation-back doctrine. The county court determined that 

because Reid’s complaint naming Evans as the sole defend

ant had not been served on the only-named party defendant 

within the 6-month service of process period, Reid’s action 

stood dismissed by operation of law. The county court also 

denied relief to Reid on her motion to amend. On appeal, the 

Supreme Court agreed that Reid’s complaint was properly 

dismissed by operation of law and that once the case stood 

dismissed, Reid’s subsequent motion to amend and relate back 

was a nullity. As recognized in a concurrence, there must 

be an action pending at the time in order for § 25-201.02 to 

allow relation back. Reis v. Evans, supra (Miller-Lerman, J., 

concurring).

Kelly v. Saint Francis Med. Ctr., supra, involved a pro se 

wrongful death action against a medical center, among other 

defendants. Ann Kelly later filed, through counsel, a motion 

for leave to file an amended complaint. The district court 

concluded that an amended complaint could not relate back 

to the date of the original filing and dismissed the action as 

untimely.

On appeal, the Supreme Court found Kelly’s complaint 

to be a legal nullity because Kelly was a nonattorney at the 

time she filed her original complaint. Id. Relying on Reid v. 

Evans, supra, the Supreme Court observed that the relationback doctrine was inapplicable when the original complaint is 

a nullity. The court concluded that “a nonexistent complaint 
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. . . cannot be corrected.” Kelly v. Saint Francis Med. Ctr., 

295 Neb. at 666, 889 N.W.2d at 624.

Based upon the foregoing authority, we conclude that 

§ 25-201.02 does not allow for relation back to cure the defect 

which rendered the original complaint in this action a legal 

nullity. See Kelly v. Saint Francis Med. Ctr., supra. Because 

Mach’s estate was closed and the special administrator discharged, there was no action pending at the time of Sparks’ 

original complaint and nothing for the amended complaint to 

relate back to. This assignment of error fails.

Summary Judgment.

Finally, Sparks asserts that the district court erred in granting David’s motion for summary judgment.

We determined above that Sparks’ original complaint was 

a nullity and that the relation-back doctrine did not apply to 

Sparks’ amended complaint. Thus, there is no genuine issue 

as to any material facts and David is entitled to judgment as a 

matter of law. See Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 

174 (2022).

CONCLUSION

Because the estate was not reopened and David was not 

reappointed as special administrator prior to Sparks’ filing 

her original complaint, the complaint was a legal nullity. The 

relation-back doctrine did not apply, and Sparks’ amended 

complaint did not cure defects which rendered the original 

complaint a nullity. Thus, no genuine issue of material fact 

existed and David’s motion for summary judgment was properly granted by the district court.

Affirmed.