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Cite as 313 Neb. 173

Cheryl M. Mueller, appellant, v. Jeffrey T. Peetz, 

Personal Representative of the Estate of 

Lorine H. Mueller, deceased, and Gary 

Mueller, appellees, and Margo Loop, 

intervenor-appellee.

___ N.W.2d ___

Filed January 6, 2023. No. S-21-1030.

1. Declaratory Judgments. Whether to entertain an action for declaratory 

judgment is within the discretion of the trial court.

2. Declaratory Judgments: Parties. In a declaratory judgment action, a 

party seeks a declaration as to the rights, status, or other legal relations 

between the parties.

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

Steinke, Judge. Affirmed as modified.

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

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

Klutman & Valorz, L.L.C., for appellee Margo Loop, and 

Burke C. Brown III, of Burke Brown Law, L.L.C., for appellee 

Gary Mueller.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Marsh, District Judge.

Papik, J.

After Lorine H. Mueller died, disputes over the administration of her estate arose. One of the disputes was whether 

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

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a Nebraska judgment entered in favor of Lorine and against 

Cheryl M. Mueller, the widow of Lorine’s deceased son, 

should be set off against the share of Lorine’s estate that 

would otherwise pass to Cheryl. In probate proceedings commenced in Kansas, the state where Lorine resided at death, 

Lorine’s living children, Margo Loop and Gary Mueller, took 

the position that setoff should be applied. Cheryl disagreed, 

arguing that an agreement between Cheryl and Margo precluded setoff. Cheryl also sought to halt the pursuit of setoff 

by filing a lawsuit in Nebraska in which she sought an order 

declaring that the agreement precluded setoff. The district 

court disagreed with Cheryl’s reading of the agreement and 

dismissed the action. Cheryl now appeals that ruling to us. As 

we will explain, we find that the merits of Cheryl’s lawsuit 

should not have been entertained. We thus modify the order 

of dismissal in certain respects, but otherwise affirm.

BACKGROUND

The district court resolved this case upon cross-motions for 

summary judgment filed by Cheryl and by Margo and Gary. 

The evidence offered by the parties at the summary judgment 

hearing included various filings in other court proceedings 

involving the parties. Because our decision in this case turns 

in large part on the filings in those other proceedings, we discuss them in some detail below.

2016 Judgment and Settlement Agreement.

In 2015, Margo, as guardian and conservator for Lorine, 

filed an action in the district court for Platte County, 

Nebraska, against Cheryl. In 2016, Cheryl filed a confession of judgment in the amount of $340,846.52. The parties 

stipulated that judgment should be entered against Cheryl 

and in favor of Lorine in accordance with the confession of 

judgment. The district court entered a judgment as stipulated (the 2016 judgment).
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The 2016 judgment was entered pursuant to a “Settlement 

Agreement and Mutual Release” (the settlement agreement) 

involving a number of parties including Margo, individually 

and as Lorine’s guardian and conservator, and Cheryl. The 

settlement agreement provided that Cheryl would enter the 

confession of judgment. It also included various other provisions regarding the 2016 judgment. It stated that “Margo, 

and Lorine’s estate shall not seek to collect the [2016 judgment],” but it also stated that the 2016 judgment “shall not be 

forgiven.” The settlement agreement additionally stated that 

“Margo . . . shall not institute, promote, participate in, assist 

with, submit, file or permit to be filed on her . . . behalf any 

lawsuit, charge, claim, complaint, grievance . . . or other proceeding whether judicial, administrative, or arbitration, against 

Cheryl” with the exception of certain rights reserved elsewhere 

in the agreement. The agreement further provided the following: “For purposes of clarification, Margo is not waiving or 

relinquishing any rights to file a will contest action, a challenge to a personal representative or any actions in any estate 

proceeding of Lorine after her passing.”

The settlement agreement also contained a paragraph 

regarding choice of law and forum selection. That paragraph 

provided that the settlement agreement would be governed by 

Nebraska law. With respect to forum selection, it stated:

The parties hereby agree that any act to enforce the terms 

of this Agreement, or for any other remedy arising out 

of said Agreement, shall be brought only in the state 

or federal courts located in Columbus, Platte County, 

Nebraska, and in no other court, and each party specifically acknowledges and submits to the personal jurisdiction of said court and waives as to such court any defense 

of inconvenient forum or improper venue.

Lorine’s Death and Commencement 

of Kansas Probate Proceedings.

Lorine died in 2017 as a resident of Kansas, and probate 

proceedings were commenced there. Margo filed a motion in 
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those proceedings in November 2017 in which she asserted 

that the court should order that the 2016 judgment be set off 

against any distribution to which Cheryl would be entitled 

from Lorine’s estate. The next month, Cheryl filed an affidavit in which she asserted that the relief sought by Margo 

was precluded by the terms of the settlement agreement. In 

June 2018, Cheryl made another filing in the Kansas probate proceedings. In that filing, Cheryl contended that under 

the settlement agreement, only the district court for Platte 

County, Nebraska, could construe the settlement agreement. 

Cheryl also argued that setoff was precluded by the settlement agreement.

Commencement of Legal Proceedings 

in Nebraska.

In addition to resisting setoff in the Kansas probate proceedings, Cheryl also sought legal relief in Nebraska. Our record 

indicates that on November 13, 2019, Cheryl filed the lawsuit 

at issue in this appeal in the district court for Platte County. 

The lawsuit initially was filed against the personal representative of Lorine’s estate. Subsequently, Margo intervened and 

Cheryl added Gary as a defendant. In the operative complaint, 

Cheryl alleged that Margo and Gary were seeking to enforce 

the 2016 judgment in the Kansas probate proceedings and that 

the settlement agreement precluded them from doing so. She 

requested that the court enter an order “enforcing” the settlement agreement and barring Lorine’s estate, Margo, and Gary 

from pursuing an order setting off the 2016 judgment against 

Cheryl’s share of Lorine’s estate.

On November 19, 2019, Cheryl filed a motion in the case in 

which the 2016 judgment was entered. Cheryl asked that the 

district court for Platte County vacate the 2016 judgment.

Kansas Probate Proceedings.

Margo and Gary and Cheryl continued to make various filings in the Kansas probate proceedings after the commencement of the Nebraska legal proceedings. Our record includes 
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various filings from the Kansas probate proceedings in late 

2019 and early 2020. In those filings, Margo and Gary argued 

that the Kansas probate court should set off the judgment 

against Cheryl’s distributive share of Lorine’s estate, and 

Cheryl argued that the Kansas probate court lacked jurisdiction 

to determine whether setoff should be applied and that even if 

it had jurisdiction, the terms of the settlement agreement precluded setoff.

Our record also includes a partial transcript of a hearing in 

the Kansas probate proceedings. There appears to be no dispute the hearing took place in March 2020. At that hearing, the 

judge said the following:

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

judgment. The judgment doesn’t reference in the judgment the side agreement or the agreement between the 

parties and it is not contingent upon those. It is simply a 

judgment for the amount of $340,846.52. And whether the 

claim turns out to be frivolous or time barred or however 

it is, the reality is that’s the 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; however, what I will do at this point, I will 

order that the stock be placed back into 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 since now 

the stock is back in the estate.

. . . .

That’s where I’m going to go right now. I have 

explained what I believe, and I will withhold ordering the 

executor to apply that equitable setoff until they have had 

the opportunity to determine whether or not they’re able 

to set aside that judgment. There’s no point in ordering 

that $340,000 judgment setoff and then find out Nebraska 
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has now set aside that judgment. But the property is back 

in the estate.

Cheryl’s Attempt to Vacate 

2016 Judgment Fails.

In October 2020, the district court dismissed Cheryl’s complaint to vacate the 2016 judgment. The Nebraska Court of 

Appeals later affirmed. See Loop v. Mueller, 30 Neb. App. 300, 

967 N.W.2d 749 (2021).

Additional Probate Proceedings in Kansas.

In February 2021, Margo filed a petition in the Kansas 

probate court styled as a “Petition to Bar Collateral Attack on 

Setoff and for Executor to Provide Accounting and Collect 

Rent.” In it, she observed that Cheryl had failed to vacate 

the confessed judgment, but was seeking an order precluding 

setoff in the lawsuit at issue in this appeal. Margo requested 

that the Kansas probate court enter an order that Cheryl’s 

“collateral attack . . . seeking to overturn this court’s March 

3, 2020 order that the Estate’s $340,846.52 judgment in Platte 

County, Nebraska District Court CI15-356 be [set off] against 

[Cheryl’s] distributive share of the estate will not be recognized in this court.” The petition also requested other relief 

regarding the executor of the estate.

In April 2021, the Kansas court entered an order granting 

Margo’s petition in part and denying it in part. It granted 

some of the relief Margo sought regarding the executor of 

the estate. With respect to Margo’s request that the court 

bar Cheryl from seeking relief in the lawsuit at issue in this 

appeal, the order stated, “The Court will allow the present lawsuits filed in Platte County, Nebraska to proceed to 

conclusion.”

District Court’s Order at Issue on Appeal.

In September 2021, after a hearing on the cross-motions for 

summary judgment, the district court entered the order that is 

at issue in this appeal. In the order, the district court found 
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that Margo and Gary were entitled to summary judgment and 

dismissed Cheryl’s action with prejudice. The district court 

stated that disposition of the case required it to interpret the 

settlement agreement. It determined that the terms of the settlement agreement did not preclude the pursuit of setoff. The 

district court concluded as follows: “Lorine died a resident of 

Kansas. Her estate is being probated in Kansas in accordance 

with Kansas law. It is for the Kansas court to determine if 

there is merit to Margo’s claim for setoff.”

Cheryl filed a motion to alter or amend. In support of 

the motion, Cheryl contended that Lorine’s estate included 

Nebraska real property, that Lorine’s will devised that real 

property to Cheryl, and that, under Nebraska law, setoff could 

not be applied to that real property. At the hearing on the 

motion to alter or amend, Cheryl offered as an exhibit a “Proof 

of Authority of Domiciliary Foreign Personal Representative” 

filed on November 12, 2019, in the county court for Platte 

County, Nebraska. Cheryl’s attorney argued that this document 

demonstrated that there was an ancillary probate proceeding 

in Nebraska for the purpose of administering Nebraska real 

property Lorine owned at her death.

In an order addressing the motion to alter or amend, the 

district court found that Cheryl could have offered the evidence regarding the ancillary probate proceeding at the earlier 

hearing. For this reason, the district court refused to receive it 

into evidence. The district court overruled the motion to alter 

or amend.

Cheryl filed a timely appeal. We moved the case to our 

docket.

ASSIGNMENTS OF ERROR

Cheryl assigns three errors, each of which challenge the 

district court’s conclusion that the terms of the settlement 

agreement did not preclude Margo and Gary from pursuing an 

order setting off the 2016 judgment against Cheryl’s share of 

Lorine’s estate.
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STANDARD OF REVIEW

[1] Whether to entertain an action for declaratory judgment is within the discretion of the trial court. Mansuetta v. 

Mansuetta, 295 Neb. 667, 890 N.W.2d 485 (2017). See, also, 

Neb. Rev. Stat. § 25-21,154 (Reissue 2016).

ANALYSIS

Cheryl’s arguments on appeal challenge the district court’s 

conclusion that the terms of the settlement agreement did 

not preclude Margo and Gary from pursuing setoff. Cheryl 

contends that if the agreement is properly interpreted under 

Nebraska law, the setoff claim cannot be pursued and the district court erred by concluding otherwise. Before we analyze 

the merits of Cheryl’s lawsuit, however, we must first explore 

a different question—whether the issue Cheryl raised in this 

lawsuit should have been considered by the district court at all. 

See Mansuetta, supra.

[2] The need to explore whether the merits of Cheryl’s 

lawsuit should have been entertained arises from the nature 

of Cheryl’s lawsuit. Although not expressly titled as such, 

Cheryl’s lawsuit was, in substance, that of an action for a 

declaratory judgment. In a declaratory judgment action, a 

party seeks a declaration as to the rights, status, or other 

legal relations between the parties. See Vlach v. Vlach, 286 

Neb. 141, 835 N.W.2d 72 (2013). See, also, Neb. Rev. Stat. 

§ 25-21,149 (Reissue 2016). In this case, Cheryl sought an 

order from the district court declaring the parties’ rights 

under the settlement agreement as it related to the possibility 

of setoff. At oral argument, Cheryl’s counsel acknowledged 

that her lawsuit was, in substance, an action for a declaratory judgment and that Cheryl hoped to use a declaration to 

preclude Margo and Gary from pursuing setoff in probate 

proceedings. It is our practice to treat filings of litigants 

according to their substance, as opposed to their title. See, 

e.g., Gerber v. P & L Finance Co., 301 Neb. 463, 919 N.W.2d 

116 (2018).
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The fact that Cheryl’s lawsuit was an action for a declaratory 

judgment is significant because although, as a general matter, 

district courts have subject matter jurisdiction to hear and 

decide declaratory judgment actions, see Sandoval v. Ricketts, 

302 Neb. 138, 922 N.W.2d 222 (2019), we have recognized that 

there are situations in which courts should decline to reach the 

merits of such actions. See, Cain v. Lymber, 306 Neb. 820, 947 

N.W.2d 541 (2020); Mansuetta, supra. See, also, § 25-21,154. 

For example, we have held that a declaratory judgment action 

will not be entertained if there is pending, at the time of the 

commencement of the declaratory action, another action or 

proceeding to which the same persons are parties, in which 

are involved and may be adjudicated the same issues that are 

involved in the declaratory action. See U.S. Specialty Ins. Co. 

v. D S Avionics, 301 Neb. 388, 918 N.W.2d 589 (2018), modified on denial of rehearing 302 Neb. 283, 923 N.W.2d 367 

(2019). In fact, we have held that a court abuses its discretion 

when it entertains jurisdiction over a declaratory judgment 

action in such a situation. Id. This rule applies when the other 

action or proceeding is pending in a court outside Nebraska. 

See Woodmen of the World Life Ins. Soc. v. Yelich, 250 Neb. 

345, 549 N.W.2d 172 (1996). We have also recognized a similar principle—that an action for a declaratory judgment will 

not lie where another equally serviceable remedy is available. 

Sandoval, supra.

This appears to be a case in which the district court should 

have declined to exercise jurisdiction pursuant to the abstention principles discussed above. The evidence adduced at the 

summary judgment hearing revealed that at the time Cheryl 

filed this action, probate proceedings were pending in the 

Kansas court and Margo, Gary, and Cheryl were litigating 

the question of whether the settlement agreement precluded 

setoff in those proceedings. In addition, Cheryl appeared to 

have a remedy that was equally as serviceable as her declaratory judgment action—the Kansas probate court could rule 

that the settlement agreement precluded an order of setoff. 
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Indeed, Cheryl argued that the Kansas probate court should 

deny setoff on that basis.

In the face of the potential applicability of the foregoing 

declaratory judgment abstention doctrines, Cheryl contends 

that the district court nonetheless should have decided whether 

the settlement agreement precluded the pursuit of setoff. She 

claims this is so for multiple reasons. First, she contends that 

the Kansas probate court will not determine how the property 

in Lorine’s estate will be distributed. Second, she argues that 

the issue of whether the settlement agreement precluded setoff 

could be decided only by a Nebraska court as a result of the 

settlement agreement’s forum selection clause. Finally, she 

finds significance in the Kansas probate court’s rejection of 

Margo’s request in February 2021 that it bar Cheryl from seeking relief in the lawsuit at issue in this appeal. We address each 

of these points below.

The parties disagree about whether the property in Lorine’s 

estate is subject to the Kansas probate proceedings or the 

ancillary probate proceeding in Nebraska. Cheryl contends 

that the estate consists of primarily Nebraska real property which is subject to the ancillary probate proceeding in 

Nebraska and that even if the estate also includes personal 

property, it too is subject to the ancillary probate proceeding, because Lorine was under a Nebraska conservatorship at 

the time of her death. Margo and Gary dispute that Lorine’s 

estate includes Nebraska real property and take the position 

that because Lorine died as a resident of Kansas, it is for the 

Kansas probate court to decide how the personal property of 

the estate will be distributed. We need not resolve the parties’ dispute on this issue. As we will explain, in either case, 

Cheryl has a remedy that is equally serviceable to the declaratory judgment she seeks.

If the property in Lorine’s estate is subject to the Kansas 

probate proceedings, Cheryl can, as we have already discussed, raise her argument that the settlement agreement precludes setoff in those proceedings. And even if Cheryl is 
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correct and some or all of the property in Lorine’s estate is 

actually subject to the Nebraska ancillary probate proceeding, 

nothing would prevent her from arguing to the county court 

in that proceeding that the settlement agreement precludes 

setoff. Cheryl’s counsel conceded that point at oral argument, 

but claimed that the Nebraska county and district courts would 

have concurrent jurisdiction over the issue. But even if there 

is concurrent jurisdiction in the county and district courts, the 

fact that Cheryl would have an equally serviceable remedy in 

the ancillary probate proceeding in county court would mean 

that a declaratory judgment action in district court would 

not lie. See Sandoval v. Ricketts, 302 Neb. 138, 922 N.W.2d 

222 (2019).

As for Cheryl’s argument that the district court was the 

correct court to decide whether the settlement agreement precluded setoff because of its forum selection clause, we again 

disagree. Initially, we observe that if Cheryl is correct that all 

of the property in Lorine’s estate is subject to the ancillary 

probate proceeding in county court, an argument relying on 

the forum selection clause fails to even get off the ground. The 

language of the forum selection clause allows for the parties to 

take action to enforce the terms of the settlement agreement in 

state court in Platte County but does not differentiate between 

district and county court.

And if Gary and Margo are correct that the Kansas probate 

court will decide how the assets in Lorine’s estate will be 

distributed, we still disagree with Cheryl’s contention that the 

forum selection clause required the district court to decide 

whether the settlement agreement precluded setoff. Cheryl’s 

counsel suggested at oral argument that because of the settlement agreement’s forum selection clause, the Kansas court 

lacked jurisdiction to decide issues regarding the settlement 

agreement. This is plainly incorrect as there is widespread 

consensus that parties may not deprive a court of subject 

matter jurisdiction by their own agreement. See, e.g., Boyd 

v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018). See, also, 
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The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12, 92 S. 

Ct. 1907, 32 L. Ed. 2d 513 (1972) (explaining that idea that 

parties can deprive court of jurisdiction is “hardly more than 

a vestigial legal fiction”); Restatement (Second) of Conflict of 

Laws § 80 (1971). And, even if Cheryl’s argument is reframed 

in nonjurisdictional terms, we still disagree that the presence 

of the forum selection clause required the district court to 

reach the merits of Cheryl’s declaratory judgment action. Our 

decision in Woodmen of the World Life Ins. Soc. v. Yelich, 

250 Neb. 345, 549 N.W.2d 172 (1996), lights the way on 

this issue.

In Yelich, supra, an employee brought suit against his former employer in West Virginia state court in the county in 

which he lived and worked. He did so despite a provision in 

his employment contract providing that the exclusive venue 

for any legal proceeding arising out of the contract was to be 

in Douglas County, Nebraska. But when the employer sought 

to have the case dismissed based on the forum selection 

clause, the West Virginia court denied the employer’s motion. 

At that point, the employer brought a new lawsuit in the district court in Douglas County. There, the employer sought and 

obtained a declaration that the forum selection clause was 

enforceable and an order enjoining the terminated employee 

from further pursuing the West Virginia action. On appeal, 

however, we reversed. We relied on our rule that a declaratory judgment action should not be entertained if, at the 

commencement of the declaratory judgment action, another 

action is pending in which the same persons are parties and 

in which the issues involved in the declaratory action can be 

adjudicated. We found that because the enforceability of the 

forum selection clause was raised in the West Virginia action, 

it was an abuse of discretion for the district court to entertain 

the declaratory judgment action in Nebraska. And because we 

found that the declaratory judgment action should have been 

dismissed, we did not decide whether the forum selection 

clause was enforceable.
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Just as in Yelich, supra, when the declaratory judgment 

action was initiated in this case, the issue that is the subject 

of that declaratory action—whether the settlement agreement 

precludes setoff—had already been raised in another action 

involving the same parties that was pending in the court of 

another state. Accordingly, under Yelich, the district court in 

this case should have declined to reach the merits of Cheryl’s 

declaratory judgment action and the enforceability of the forum 

selection clause.

Finally, we also disagree with Cheryl to the extent she 

claims that the district court should have reached the merits 

of her declaratory judgment action as a result of the Kansas 

probate court’s rejection of Margo’s request in February 2021 

that it bar Cheryl from seeking relief in the lawsuit at issue in 

this appeal. The Kansas probate court did not provide much 

explanation for that decision, and we can discern nothing in 

its order suggesting that it would not consider the question of 

whether the settlement agreement precluded an order of setoff. See Polk Cty. Rec. Assn. v. Susquehanna Patriot Leasing, 

273 Neb. 1026, 734 N.W.2d 750 (2007) (rejecting argument 

that because Pennsylvania court had stayed case involving 

same parties and issues, district court should have reached 

merits of declaratory judgment action).

Finding no merit in any of Cheryl’s arguments to the contrary, we conclude that the district court abused its discretion 

to the extent it reached the merits of this action. We emphasize 

that we reach this conclusion without expressing any view as 

to whether property in Lorine’s estate is subject to the Kansas 

probate proceedings or the ancillary probate proceedings in 

Nebraska. We need not make any determination on that issue 

because, either way, the district court should have declined to 

reach the merits.

Although we find that the district court abused its discretion to the extent it entertained the merits of this declaratory 

judgment action, it correctly dismissed Cheryl’s declaratory 

judgment action. Accordingly, we modify its order dismissing 
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the action to vacate any determinations regarding the settlement agreement’s effect on setoff and to vacate the specification of a dismissal “with prejudice” but otherwise affirm 

the dismissal.

CONCLUSION

For the reasons we have discussed, we affirm the district 

court’s dismissal of the action as modified herein.

Affirmed as modified.

Heavican, C.J., not participating.