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IN RE ESTATE OF LAKIN

Cite as 310 Neb. 271

In re Estate of Charles E. Lakin, deceased. 

Charles E. Lakin Foundation, Inc., appellant, v. 

Thomas Pribil and William Kilzer, Copersonal 

Representatives of the Estate of 

Charles E. Lakin, appellees.

In re Trust of Charles E. Lakin, deceased. 

Charles E. Lakin Foundation, Inc. appellant, v. 

Thomas Pribil and William Kilzer, Cotrustees 

of the Charles E. Lakin Revocable 

Trust, et al., appellees.

Filed October 8, 2021. Nos. S-20-093, S-20-094.

1. Summary Judgment: Appeal and Error. An appellate court affirms 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.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Summary Judgment: Jurisdiction: Appeal and Error. When reviewing cross-motions for summary judgment, an appellate court acquires 

jurisdiction over both motions and may determine the controversy that 

is the subject of those motions.

4. Appeal and Error. An appellate court may specify the issues as to 

which questions of fact remain and direct further proceedings as the 

court deems necessary.

5. Jurisdiction: Appeal and Error. It is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before 

it, irrespective of whether the issue is raised by the parties.

Nebraska Supreme Court Online Library

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

10/22/2021 12:07 AM CDT
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6. Jurisdiction: Final Orders: Appeal and Error. Generally, for an 

appellate court to acquire jurisdiction of an appeal, there must be a final 

order entered by the court from which the appeal is taken.

7. Final Orders. When a trial court clearly intends its order to serve as a 

final adjudication of the rights and liabilities of the parties, the order’s 

silence on requests for relief can be construed as a denial of those 

requests.

8. Final Orders: Appeal and Error. Pursuant to Neb. Rev. Stat. 

§ 25-1902(b) (Cum. Supp. 2020), an order affecting a substantial right 

made during a special proceeding is a final order which may be vacated, 

modified, or reversed.

9. Decedents’ Estates. A proceeding under the Nebraska Probate Code is a 

special proceeding.

10. Decedents’ Estates: Final Orders: Appeal and Error. A proceeding 

under Neb. Rev. Stat. § 30-2454 (Reissue 2016) to remove a personal 

representative for cause is a special proceeding and can be a final, 

appealable order even though it may not terminate the action or constitute a final disposition of the case.

11. Final Orders: Appeal and Error. A substantial right is involved if an 

order affects the subject matter of the litigation, such as diminishing a 

claim or defense that was available to an appellant before the order from 

which an appeal is taken.

12. Decedents’ Estates: Final Orders: Appeal and Error. An order denying an application for the appointment of a special administrator in a 

probate dispute is a final, appealable order because the denial of such 

cannot be effectively vindicated on appeal from the judgment in which 

the probate estate would be finally established.

13. 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.

14. Judgments: Appeal and Error. The plain language of Neb. Rev. Stat. 

§ 25-1912(1) (Cum. Supp. 2020) provides that a notice of appeal must 

be filed within 30 days after the entry of the judgment, signed by either 

the appellant or appellant’s attorney, and that the appellant must pay the 

required docket fee.

15. Actions: Promissory Notes: Reformation: Equity: Courts. While an 

action on a promissory note is an action at law, reformation sounds in 

equity. And a court of equity will look to the substance of a transaction, 

rather than give heed to the mere form it may assume.

16. Promissory Notes: Words and Phrases. A promissory note is an 

unconditional written promise, signed by the maker, to pay absolutely 
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Cite as 310 Neb. 271

and in any event a certain sum of money either to, or to the order of, 

the bearer or a designated person.

17. Wages: Words and Phrases. Deferred compensation is defined as compensation which is earned in exchange for services rendered.

18. Employment Contracts: Limitations of Actions. Parties to a contract 

of employment may agree that compensation for the services to be furnished shall be deferred until the completion of the work, but in such 

cases, the statute of limitations does not begin to run until the work has 

been fully performed.

19. Decedents’ Estates: Limitations of Actions: Notice: Claims. Under 

Neb. Rev. Stat. § 30-2483 (Reissue 2016) of the Nebraska Probate Code, 

the clerk of the county court must give notice to creditors of an estate to 

present their claims within 2 months after the date of the first publication of the notice or be forever barred.

20. Decedents’ Estates: Limitations of Actions: Waiver. Only with the 

consent of all successors may a personal representative waive any 

defense of limitations available to the estate.

21. Decedents’ Estates: Limitations of Actions: Claims: Waiver. If the 

defense of limitations is not waived by the personal representative, no 

claim against the estate which was barred by any statute of limitations 

at the time of the decedent’s death shall be allowed or paid.

22. Decedents’ Estates: Employment Contracts. Recovery is permitted 

for services rendered to a decedent during his or her lifetime if evidence 

shows that services were rendered under an express contract, either written or oral, to pay for them.

23. Decedents’ Estates: Notice: Claims. Mere notice to a representative 

of an estate regarding a possible demand or claim against the estate 

does not constitute presenting or filing a claim under Neb. Rev. Stat. 

§ 30-2486 (Reissue 2016).

24. Decedents’ Estates: Claims: Limitations of Actions. All claims against 

a decedent’s estate which arose before the death of the decedent, if 

not barred by another statute of limitations, are barred against the 

estate, the personal representative, and the heirs and devisees of the 

decedent, unless presented according to Neb. Rev. Stat. § 30-2485(a) 

(Reissue 2016).

25. Decedents’ Estates: Claims. The purpose of Neb. Rev. Stat. § 30-2485 

(Reissue 2016) is to facilitate and expedite proceedings for distribution of a decedent’s estate, including an early appraisal of the respective rights of interested persons and the prompt settlement of demands 

against the estate.

26. ____: ____. As a result of the nonclaim statute, the probate court or the 

personal representative can readily ascertain the nature and extent of 
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the decedent’s debts, determine whether any sale of property is necessary to satisfy a decedent’s debts, and project a probable time at which 

the decedent’s estate will be ready for distribution.

27. Decedents’ Estates: Claims: Limitations of Actions. If presentation of 

a claim against a decedent’s estate is required, a claim that is not duly 

and timely presented generally is barred, unless the delay is excused or 

relief is granted, and a claim that is not duly presented does not constitute a charge against, or a lien on, the estate.

28. Malpractice. Whether a breach of fiduciary duty has occurred is a question of fact.

29. Summary Judgment. On a motion for summary judgment, the question 

is not how a factual issue is to be decided but whether any real issue of 

material fact exists.

30. ____. Entry of summary judgment is appropriate only if there are no 

genuine issues of fact and if, as a consequence, one party is entitled to 

judgment as a matter of law.

31. Summary Judgment: Parties. The fact that both parties simultaneously 

are arguing that there is no genuine dispute of fact does not establish 

that a trial is unnecessary.

32. Pleadings: Evidence: Waiver: Words and Phrases. A judicial admission, as a formal act done in the course of judicial proceedings, is a 

substitute for evidence and thereby waives and dispenses with the production of evidence by conceding for the purpose of litigation that the 

proposition of fact alleged by an opponent is true.

33. Pleadings: Intent. Judicial admissions must be deliberate, clear, and 

unequivocal, and they do not extend beyond the intent of the admission 

as disclosed by its context.

34. Pleadings. Formal acts that may operate as judicial admissions include 

statements made in pleadings.

Appeal from the County Court for Douglas County: 

Stephanie S. Shearer, Judge. Reversed and remanded for 

further proceedings.

Zachary W. Lutz-Priefert, Frederick D. Stehlik, William J. 

Lindsay, Jr., and John A. Svoboda, of Gross & Welch, P.C., 

L.L.O., for appellant.

Edward D. Hotz, Amanda M. Forker, and Benjamin C. 

Deaver, of Pansing, Hogan, Ernst & Bachman, L.L.P., for 

defendants-appellees Thomas L. Pribil and William A. Kilzer.
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Trenten P. Bausch and Megan S. Wright, of Cline, Williams, 

Wright, Johnson & Oldfather, L.L.P., for appellee Thomas L. 

Pribil in his individual capacity.

Cathy S. Trent-Vilim and Brian J. Brislen, of Lamson, 

Dugan & Murray, L.L.P., for appellee William A. Kilzer, an 

individual.

Heavican, C.J., Cassel, Stacy, Funke, and Freudenberg, 

JJ.

Funke, J.

The Charles E. Lakin Foundation, Inc., appeals from the 

granting of summary judgment in favor of Thomas Pribil and 

William Kilzer, appellees, who are the copersonal representatives of the estate of Charles E. Lakin and the cotrustees of the 

Charles E. Lakin Revocable Trust. The foundation contends 

appellees improperly paid Pribil approximately $7 million 

after Lakin’s death. On appeal, we conclude that because Pribil 

failed to file a claim for the debt with the estate, appellees’ 

payment of the debt was not authorized. Based upon the summary judgment record before this court, we conclude that a 

dispute of material fact exists regarding the foundation’s fiduciary duty claims against appellees as copersonal representatives and cotrustees. Therefore, we reverse, and remand for 

further proceedings consistent with this opinion.

I. BACKGROUND

1. Parties

Lakin amassed an estate worth approximately $170 million 

at the time of his death. Lakin’s businesses included ownership of numerous farms in Iowa and Arizona. Lakin operated 

his business as Lakin Enterprises, which was not incorporated 

or established as a limited liability company. In 1972, Pribil 

began working for Lakin.

In his “Last Will and Testament,” Lakin nominated 

Pribil and Kilzer, Lakin’s grandson, to serve as copersonal 
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representatives of his estate. Lakin executed a trust, appointed 

Pribil and Kilzer to serve as cotrustees of the trust, and made 

the trust the primary beneficiary of his will.

Lakin’s son, Charles E. Lakin III (Chuck), worked for him 

from 1977 until 2014. Initially, Chuck was a copersonal representative and cotrustee of Lakin’s estate and trust. In 2016, 

Lakin changed his will and trust agreement to remove Chuck 

from both representative positions and nominated Kilzer in 

his place.

2. Trust Agreement

Lakin named the foundation as the primary beneficiary of 

the trust. The trust authorized, but did not direct, the trustee 

to “pay or satisfy any other obligations of the Grantor’s estate 

(including without limitation debts of the Grantor and expenses 

of administration of the Grantor’s estate) as the Trustee in its 

sole discretion may deem appropriate.” Further, the trust agreement gave the trustee the power to dispose of any securities 

or property and to make payments and allocate principal or 

income or any property received as a result thereof.

3. Promissory Note

In 1984, Lakin wanted to increase Pribil’s salary, but did not 

want Chuck to know. As a result, Lakin made a confidential 

agreement to pay Pribil deferred wages in the future. Lakin 

and Pribil worked together to prepare a document entitled 

“Promissory Note” (note) setting forth their agreed-upon terms. 

The note reads:

ON DEMAND, FOR VALUE RECEIVED, [Lakin] 

promises to pay to [Pribil], or order, the sum of ONE 

MILLION TWO HUNDRED THOUSAND DOLLARS 

($1,200,000.00), plus an additional amount of FIFTY 

THOUSAND DOLLARS ($50,000.00) on each anniversary date of Pribil’s continuous employment by Lakin, 

together with interest, from date of demand at the rate of 

twelve percent (12%) per annum.
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The initial principal amount of this note represents 

additional compensation to Pribil from Lakin for the first 

twelve (12) years of Pribil’s employment with Lakin.

Demand for payment on this Note by Pribil cannot be 

made by Pribil until Pribil reaches the age of sixty (60) 

or the demise of Lakin, whichever date occurs first. This 

date shall then be the due date of this note.

The due date of this note, it is anticipated by Lakin, 

will be the date of the demise of Lakin and Lakin hereby 

directs the estate of Lakin to pay out to Pribil all monies, due under this Note, in whole or in part, from time 

to time, as specifically directed by Pribil within ten (10) 

days after receipt of notice, from Pribil.

In addition to the payment to Pribil of all monies due 

under this Note, Lakin agrees and directs that the principal part of this Note shall be paid to Pribil as a tax free 

gift to Pribil or with all federal and state income taxes 

paid in full so that the entire principal part of this note 

shall be net “tax free” monies to Pribil.

In addition to this note, this date, Lakin and Pribil have 

entered into an Incentive Compensation Agreement which 

is known to parties other than Lakin and Pribil; however, for family reasons of Lakin, Lakin has requested 

of Pribil, and Pribil agrees, to keep this note confidential 

between Lakin and Pribil. The only other party that has 

knowledge of this note is the party that typed it for Lakin 

and this party has agreed to Lakin to also keep it confidential. To Lakin’s knowledge, Pribil does not know who 

this party is.

With this note it is Lakin’s intent that Pribil shall 

have and for Pribil to know that Pribil will have forever 

financial security. Lakin feels this is justly due to Pribil 

for Pribil’s dedication to Lakin and superb performance 

in Lakin’s behalf and to provide to Pribil the additional 

incentive to remain in the continuous employ of Lakin.
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The validity of the written note is not contested. However, 

an alleged oral modification is contested. According to Pribil, 

he and Lakin orally agreed to reduce the interest rate to 6 percent annually and agreed that interest would accrue on Pribil’s 

60th birthday. Pribil claimed that in order to keep the agreement confidential, the note would become due upon Lakin’s 

death. Pribil testified that interest began when he turned 60 

years old in March 2007, even though he did not make a 

demand at that time. Pribil opined that the note was a compensation agreement for deferred wages due to him for his work 

with Lakin Enterprises.

4. Probate Proceedings

Lakin died in March 2016. In April 2016, Pribil and Kilzer 

filed an application for informal probate of the will and informal appointment of a personal representative to administer 

Lakin’s estate. In the application, Pribil and Kilzer stated that 

neither was indebted to the estate nor a creditor of the estate. 

During a deposition, Pribil was asked whether his statement 

from the application was accurate, to which he responded, 

“Outside of my wages, but I never — I never understood — 

I’m certainly not indebted, and I didn’t consider myself a 

creditor, because wages is ongoing[.]” Pribil also characterized 

the debt as “an obligation of [Lakin]” and as “wages owing by 

the Estate.”

Lakin’s will, which was admitted into probate, provides, in 

part, “My Personal Representative shall pay all enforceable 

debts, unsatisfied charitable pledges, funeral expenses, costs 

of administration including ancillary administration, costs of 

safeguarding and delivering devises, and other proper charges 

against my estate as soon as practicable.”

5. Payment

It is undisputed that Pribil did not file a claim in the estate 

proceedings. However, in April 2016, Pribil and Kilzer began 

discussions with their legal counsel regarding payment of the 

debt to Pribil. In June 2016, Pribil asked Lakin’s accountant 
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to calculate the debt. On September 26, with the consent 

of Kilzer but without approval from the court, Pribil paid 

himself $6,946,828.33 as payment due under the note, with 

$3,242,869.12 withheld for taxes, leaving a net payment of 

approximately $3.7 million. In order to make the full payment 

under the note, Pribil and Kilzer liquidated stocks held by the 

trust without a request to the court.

6. Petitions for Removal and Surcharge

In May 2018, the foundation filed a petition for suspension, 

removal, and surcharge of the personal representatives and 

for appointment of successor copersonal representatives or a 

special administrator. At the same time, the foundation filed a 

petition for suspension, removal, and surcharge of the trustees 

and for appointment of successor cotrustees or a special fiduciary. The foundation moved to compel distribution of assets 

from the estate to the foundation and filed similar motions in 

the trust case. Pribil and Kilzer objected to the motions and, 

subsequently, moved for summary judgment in each case. The 

foundation, in turn, moved for partial summary judgment in 

each case. The foundation later renewed its motions to compel 

distribution of assets. Pribil and Kilzer filed an objection in the 

probate case.

On June 26, 2018, in both cases, the court held a hearing on 

the foundation’s petitions for suspension and removal and took 

the matter under advisement. At the next hearing, the court 

informed the parties that it had not yet ruled on the matter from 

the previous hearing, and it advised that it would not be able to 

proceed that day due to new information that had come to light 

during the discovery process.

At a December 6, 2018, hearing, the foundation offered 

into evidence in the probate case the amended petitions for 

suspension, removal, and surcharge of copersonal representatives and appointment of successor copersonal representatives 

or a special administrator. The foundation offered into evidence Pribil and Kilzer’s answers in both cases. On December 

20, the court held a hearing regarding the motion to compel 
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distribution of assets, and it later held a hearing on a motion 

to stay payment of attorney fees.

7. County Court’s Order

On January 6, 2020, the county court entered a single order 

covering both cases. The court listed the motions that were 

pending to include (1) a motion for partial summary judgment 

filed by the foundation, (2) a motion for summary judgment 

filed by Pribil in his individual capacity, (3) a motion for summary judgment filed by Kilzer in his individual capacity, (4) 

a motion for summary judgment filed by Pribil and Kilzer in 

their representative capacities, (5) a motion to stay or set aside 

attorney fees, (6) the motion to compel distribution of assets, 

and (7) the renewed motion to compel distribution of assets.

The court granted summary judgment in favor of Pribil 

and Kilzer in their individual and representative capacities. In 

doing so, the court found that Pribil and Kilzer did not breach 

their fiduciary duties to the estate by paying the note or by 

delaying the administration of the estate. The court further 

found that Pribil and Kilzer did not breach their fiduciary 

duties to the trust by processing and disbursing the funds from 

the trust according to the terms of the note or by delaying the 

administration of the trust.

The court overruled the foundation’s motion for partial summary judgment in both matters. The court overruled the foundation’s motions to compel distribution and amended motions 

to compel distribution. However, the court’s order did not dismiss the foundation’s petitions, nor did it explicitly rule on the 

foundation’s requests that Pribil and Kilzer be surcharged or be 

directed to provide an accounting.

8. Appeals

On February 4, 2020, the foundation filed two notices of 

appeal. The notice of appeal in the probate case identified 

the foundation as the appealing party and was signed by the 

foundation’s attorney. The foundation filed a separate notice of 
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appeal in the trust case, signed by the same attorney, but incorrectly identified the trust as the appealing party. Over 2 months 

later, the foundation filed a motion to correctly identify the 

parties on appeal in the trust case, which the Nebraska Court 

of Appeals sustained. On our own motion, we moved the cases 

to our docket pursuant to our authority to regulate the dockets 

of the appellate courts.

II. ASSIGNMENTS OF ERROR

The foundation assigns, restated and consolidated, that the 

county court erred in (1) finding that the note was a deferred 

compensation agreement; (2) finding that the note was not 

barred by the applicable statute of limitations; (3) finding 

that Lakin and Pribil orally modified the note; (4) finding 

that Pribil was not required to file a claim with the estate, 

and thus concluding that Pribil and Kilzer in their representative capacities were allowed to pay the amount due under the 

note; (5) concluding that Pribil had not judicially admitted his 

status as a creditor; (6) concluding that Pribil and Kilzer did 

not breach their fiduciary duties to the estate or to the trust; 

(7) not removing Pribil and Kilzer and appointing a successor 

personal representative and trustees; (8) not requiring Pribil, 

under Neb. Ct. R. § 6-1437 (rev. 2020), to obtain the court’s 

permission to pay himself in excess of $250; and (9) concluding that Pribil and Kilzer were allowed to rely upon professional advice.

III. STANDARD OF REVIEW

[1,2] An appellate court affirms 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. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted, and gives that 
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party the benefit of all reasonable inferences deducible from 

the evidence. 1

[3,4] When reviewing cross-motions for summary judgment, 

an appellate court acquires jurisdiction over both motions and 

may determine the controversy that is the subject of those 

motions; an appellate court may also specify the issues as to 

which questions of fact remain and direct further proceedings 

as the court deems necessary. 2

IV. ANALYSIS

1. Jurisdictional Issues

(a) Final, Appealable Order

[5,6] It is the power and duty of an appellate court to 

determine whether it has jurisdiction over the matter before 

it, irrespective of whether the issue is raised by the parties. 3

Generally, for an appellate court to acquire jurisdiction of an 

appeal, there must be a final order entered by the court from 

which the appeal is taken. 4 Thus, as a threshold matter, we first 

address whether the county court’s order granting summary 

judgment is a final order.

[7] The county court’s order did not explicitly discuss the 

foundation’s petition for suspension, removal of, and surcharge of personal representatives and for appointment of successor copersonal representatives or a special administrator. 

However, when a trial court clearly intends its order to serve 

as a final adjudication of the rights and liabilities of the parties, the order’s silence on requests for relief can be construed 

as a denial of those requests. 5 Here, it is clear to us that the 

county court intended its order granting summary judgment 

1 Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).

2 Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015); Chicago 

Lumber Co. of Omaha v. Selvera, 282 Neb. 12, 809 N.W.2d 469 (2011).

3 In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).

4 Id.; State v. Riensche, 283 Neb. 820, 812 N.W.2d 293 (2012).

5 See In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).
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to serve as a final adjudication of the rights and liabilities of 

the parties.

The foundation asked the court for removal of appellees and 

for surcharge, based on the argument that appellees breached 

their fiduciary duties to the estate and the trust by paying 

Pribil’s note and delaying distribution of the trust assets. In 

granting appellees’ motions for summary judgment, the county 

court explicitly found that appellees did not breach their fiduciary duties owed to the estate or the trust. Additionally, the 

county court explicitly found that appellees properly paid 

Pribil’s claim and did not delay distribution of the trust assets. 

As such, the county court considered the foundation’s requests 

for affirmative relief and effectively, albeit implicitly, denied 

those requests. In this case, the court’s order can be understood 

as a dismissal of the foundation’s petitions, even if the order 

did not state so explicitly. We must next consider whether the 

order was final under Neb. Rev. Stat. § 25-1902(1)(b) (Cum. 

Supp. 2020).

[8-11] Under § 25-1902(1)(b), an order affecting a substantial right made during a special proceeding is a final order 

which may be vacated, modified, or reversed. This court has 

previously determined that a proceeding under the Nebraska 

Probate Code is a special proceeding. 6 More specifically, we 

have acknowledged that a proceeding under Neb. Rev. Stat. 

§ 30-2454 (Reissue 2016) to remove a personal representative for cause is a special proceeding within the meaning of 

§ 25-1902 and therefore can result in a final, appealable order 

even though it may not terminate the action or constitute a 

final disposition of the case. 7 Further, a substantial right is 

involved if an order affects the subject matter of the litigation, 

such as diminishing a claim or defense that was available to 

an appellant before the order from which an appeal is taken. 8

6 See In re Estate of McKillip, supra note 3.

7 See In re Estate of Seidler, 241 Neb. 402, 490 N.W.2d 453 (1992).

8 Id.
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It is clear to us that the court’s order disposed of the foundation’s petitions and, therefore, affected a substantial right of the 

foundation. Moreover, a substantial right is affected when that 

right cannot be effectively vindicated in an appeal from another 

possible final judgment in the case. 9

[12] In In re Estate of Muncillo,

 10 we determined that an 

order denying an application for the appointment of a special 

administrator in a probate dispute was a final, appealable order, 

because the denial of such could not be effectively vindicated 

on appeal from the judgment in which the probate estate would 

be finally established, and that thus, the denial affected an 

essential legal right. 11 Here, just as in In re Estate of Muncillo, 

the dismissal of the foundation’s petition seeking removal of 

appellees and the appointment of a special administrator cannot be effectively vindicated on appeal from any other potential final judgment or resolution of the case. The court’s order 

affected an essential legal right of the foundation. 12 The county 

court’s order operated as a final, appealable order.

(b) Defect in Notice of Appeal

As explained above, the notice of appeal filed in the trust case 

misidentified the appealing party. Kilzer argues this is a fatal 

flaw that deprives this court of proper appellate jurisdiction.

In Hearst-Argyle Prop. v. Entrex Comm. Servs.,

 13 we determined that a notice of appeal filed under the wrong docket 

number was not fatal to appellate jurisdiction. We recognized 

that the notice of appeal filed in that case correctly identified the parties and the order being appealed from and that no 

9 See id.

10 In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37 (2010).

11 Id.

12 See, e.g., Gillpatrick v. Sabatka-Rine, 297 Neb. 880, 902 N.W.2d 115 

(2017).

13 Hearst-Argyle Prop. v. Entrex Comm. Servs., 279 Neb. 468, 778 N.W.2d 

465 (2010).
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party was confused or misled by the notice. 14 Here, there is no 

claim that the defect in the notice of appeal confused or misled 

a party. In fact, in a stipulation, all parties acknowledged the 

pending appeal and sought to correct a different issue in the 

transcript. Any scrivener’s error in one of the notices of appeal 

had no impact on the parties and does not warrant a dismissal 

of this appeal.

Kilzer argues that this case can be distinguished from HearstArgyle Prop. because under Neb. Rev. Stat. § 25-1912 (Cum. 

Supp. 2020), the identity of an appealing party is a statutory 

requirement. We disagree.

Neb. Rev. Stat. § 30-1601(1) (Cum. Supp. 2020) provides 

that “[i]n all matters arising under the Nebraska Probate Code 

. . . appeals may be taken to the Court of Appeals in the 

same manner as an appeal from district court to the Court of 

Appeals.” Section 30-1601(2) provides that “[a]n appeal may be 

taken by any party and may also be taken by any person against 

whom the final judgment or final order may be made or who 

may be affected thereby.” Section 25-1912(1) provides:

The proceedings to obtain a reversal, vacation, or modification of judgments and decrees rendered or final orders 

made by the district court, including judgments and sentences upon convictions for felonies and misdemeanors, 

shall be by filing in the office of the clerk of the district 

court in which such judgment, decree, or final order 

was rendered, within thirty days after the entry of such 

judgment, decree, or final order, a notice of intention to 

prosecute such appeal signed by the appellant or appellants or his, her, or their attorney of record and, except as 

otherwise provided in sections 25-2301 to 25-2310 and 

29-2306 and subsection (4) of section 48-638, by depositing with the clerk of the district court the docket fee 

required by section 33-103.

[13,14] It is well established that in general, statutory language is to be given its plain and ordinary meaning, and an 

14 Id.
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appellate court will not resort to interpretation to ascertain the 

meaning of statutory words which are plain, direct, and unambiguous. 15 The plain language of § 25-1912(1) provides that a 

notice of appeal must be filed within 30 days after the entry of 

the judgment, signed by either the appellant or the appellant’s 

attorney, and that the appellant must pay the required docket 

fee. Looking at the plain language of § 25-1912(1), there is no 

requirement that a notice of appeal must include the appellant’s 

name. Therefore, we reject Kilzer’s argument.

Because the notice of appeal in the trust case was timely 

filed, was filed under the correct docket, correctly identified 

the order being appealed from, and was signed by the foundation’s counsel, we find the notice of appeal met all of the statutory requirements under § 25-1912.

We conclude that the court’s order operated as a final, 

appealable order, that both notices of appeal met statutory 

requirements, and that this court has appellate jurisdiction over 

the probate case and the trust case.

2. Note

The central dispute in this matter involves the 1984 agreement between Lakin and Pribil styled as a promissory note. 

The parties disagree as to whether the agreement is a promissory note or a deferred compensation agreement. In its order, 

the county court characterized the note as a deferred compensation agreement.

[15,16] “While an action on a promissory note is an action 

at law, reformation sounds in equity. And a court of equity will 

look to the substance of a transaction, rather than give heed to 

the mere form it may assume.” 16 A promissory note is “‘[a]n 

unconditional written promise, signed by the maker, to pay 

15 Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947 

N.W.2d 731 (2020); Metropolitan Utilities Dist. v. Balka, 252 Neb. 172, 

560 N.W.2d 795 (1997).

16 See Marcovitz v. Rogers, 276 Neb. 199, 205, 752 N.W.2d 605, 609-10 

(2008).
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absolutely and in any event a certain sum of money either to, 

or to the order of, the bearer or a designated person.’” 17

[17,18] Generally, deferred compensation is defined as compensation which is earned in exchange for services rendered. 18

Parties to a contract of employment may agree that compensation for the services to be furnished shall be deferred until 

the completion of the work, but in such cases, the statute 

of limitations does not begin to run until the work has been 

fully performed. 19

In this case, although the document bears the title “Promissory 

Note,” the substance of the document clearly reflects Lakin’s 

intention to provide Pribil with additional compensation for his 

services as an employee, as seen in a few key provisions. The 

second paragraph of the document provides, “The initial principal amount of this note represents additional compensation 

to Pribil from Lakin for the first twelve (12) years of Pribil’s 

employment with Lakin.” Additionally, the seventh paragraph 

of the document states:

With this note it is Lakin’s intent that Pribil shall 

have and for Pribil to know that Pribil will have forever 

financial security. Lakin feels this is justly due to Pribil 

for Pribil’s dedication to Lakin and superb performance 

in Lakin’s behalf and to provide to Pribil the additional 

incentive to remain in the continuous employ of Lakin.

This language demonstrates Lakin’s intent to pay Pribil compensation earned in exchange for the services Pribil rendered 

as an employee.

Therefore, though the parties styled their written agreement 

as a promissory note, the county court did not err in characterizing the document as a deferred compensation agreement.

17 Id. at 204, 752 N.W.2d at 609, quoting Black’s Law Dictionary 1089 (8th 

ed. 2004).

18 Dooling v. Dooling, 303 Neb. 494, 930 N.W.2d 481 (2019); Livingston v. 

Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475 (2005).

19 Weiss v. Weiss, 179 Neb. 714, 140 N.W.2d 15 (1966).
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3. Statute of Limitations

The foundation argues the note was unenforceable because 

the statute of limitations had run by the time the note was paid. 

Under Neb. Rev. Stat. § 25-205 (Reissue 2016), “an action 

upon a . . . contract, or promise in writing . . . can only be 

brought within five years.” The foundation argues that under 

the note, demand for payment could not be made until the 

earlier of Pribil’s 60th birthday, which occurred in 2007, or 

Lakin’s death, which occurred in 2016. As a result, the foundation contends that the demand date should have occurred in 

2007 and that since it did not, the statute of limitations expired 

in 2012.

However, as just discussed, we consider the written agreement to be a deferred compensation agreement. As we have 

previously held, under a deferred compensation agreement, 

the statute of limitations does not begin to run until the work 

has been fully performed. 20 The statute of limitations on the 

note did not commence to run until Pribil ceased to work for 

Lakin, 21 which occurred upon Lakin’s death in March 2016. 

Here, the statute of limitations did not expire until March 2021 

and, thus, did not bar payment under the note. The county court 

did not err in finding the note was not barred by the applicable 

statute of limitations.

4. Oral Modification

The foundation argues that the county court erred in finding 

that Lakin and Pribil orally modified the deferred compensation agreement. The foundation contends that because the 

parties reduced their agreement to writing, by operation of 

law, the agreement could not be orally modified. Appellees 

20 See id.

21 See, Sodoro, Daly v. Kramer, 267 Neb. 970, 679 N.W.2d 213 (2004); In 

re Estate of Baker, 144 Neb. 797, 14 N.W.2d 585 (1944); In re Estate of 

Skade, 135 Neb. 712, 283 N.W. 851 (1939); Phifer v. Estate of Phifer, 112 

Neb. 327, 199 N.W. 511 (1924).
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counter that the terms of a written executory contract may 

be orally modified by the parties thereto at any time after its 

execution and before a breach has occurred, without any new 

consideration.

The terms of the original agreement indicated that Pribil 

could make demand for payment of the note after he turned 

60 years of age. The agreement called for interest on the sums 

owed to Pribil to accrue at the rate of 12 percent per annum 

from the date of demand. In the trial court, appellees alleged 

that the agreement was orally modified to reduce the interest 

rate to 6 percent per annum and to fix the demand date as the 

date of Lakin’s death.

On appeal, the parties seem to agree that the agreement 

was orally modified, insofar as both advocate for a 6-percent 

interest rate. Having considered the foundation’s appeal, we 

conclude that the alleged oral amendment is irrelevant. As 

we explain in greater detail below, the debt was incurred during Lakin’s life and was subject to the claims-barred statute 

applicable in estate proceedings. This assignment of error is 

without merit.

5. Claim

[19-21] Under Neb. Rev. Stat. § 30-2483 (Cum. Supp. 

2020) of the Nebraska Probate Code, the clerk of the county 

court must give notice to creditors of an estate to present their 

claims within 2 months after the date of the first publication 

of the notice or be forever barred. Only with the consent of all 

successors may a personal representative waive any defense of 

limitations available to the estate. 22 If the defense of limitations 

is not waived by the personal representative, no claim against 

the estate which was barred by any statute of limitations at the 

time of the decedent’s death shall be allowed or paid. 23

22 Neb. Rev. Stat. § 30-2484 (Reissue 2016).

23 Id.
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(a) Necessity of Claim

The parties disagree as to whether Pribil was required to file 

a claim in the estate proceeding before the debt could be paid. 

The foundation contends that the debt was incurred by Lakin 

during his lifetime and that therefore, a claim was required. 

Appellees contend that the amounts owed to Pribil were merely 

wages earned after Lakin’s death or administrative expenses of 

the estate and that thus, no claim was required. The probate 

court agreed with appellees and ruled that since Pribil sought 

payment only after Lakin’s death, no claim was needed.

Appellees rely upon Neb. Rev. Stat. §§ 30-2476 and 

30-2487 (Reissue 2016) to support their argument. Section 

30-2476(3) authorizes personal representatives to perform the 

decedent’s contracts that continue as obligations of the estate. 

Additionally, § 30-2476 specifically provides that the personal 

representatives, “acting reasonably for the benefit of the interested persons, may properly . . . (24) continue any unincorporated business or venture in which the decedent was engaged 

at the time of death.” Under § 30-2487(a), when the assets of 

the estate are insufficient to pay all claims in full, costs and 

expenses of administration of an estate have the first priority 

for payment. Costs and expenses of administering an estate 

include “expenses incurred in taking possession or control of 

estate assets and the management, protection, and preservation 

of the estate assets, expenses related to the sale of estate assets, 

and expenses in the day-to-day operation and continuation of 

business interests for the benefit of the estate.” 24

Here, Lakin owed Pribil $1.2 million as of November 5, 

1984, as additional compensation for the first 12 years of 

Pribil’s employment. Additionally, the note indicated that Lakin 

would owe an additional $50,000 each year of Pribil’s continued employment thereafter; that Pribil could demand payment 

after he reached 60 years of age or at the time of Lakin’s 

death, whichever occurred first; and that Lakin’s estate was 

24 § 30-2487(c).
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directed to pay Pribil within 10 days of Pribil’s demand. The 

note further indicated that the note would become due upon 

either Pribil’s 60th birthday or Lakin’s demise.

[22] The record shows that the sums paid to Pribil were for 

periods of time Pribil worked for Lakin before his death. The 

note stated that the debt owed by Lakin arose during his lifetime. Though Pribil continued in his employment after Lakin’s 

death, for purposes of compensation due under the note, the 

fact that Lakin did not incorporate Lakin Enterprises indicates 

that at Lakin’s death, Pribil no longer worked for Lakin personally and any additional work would be chargeable to the 

estate. 25 Recovery is permitted for services rendered to a decedent during his or her lifetime if evidence shows that services 

were rendered under an express contract, either written or oral, 

to pay for them. 26

We conclude that the debt was for deferred wages earned by 

Pribil during Lakin’s life. As such, the debt was not for wages 

earned after Lakin’s death or for an administrative expense of 

the estate. In order for the debt to be a valid debt of the estate, 

a claim needed to be filed.

(b) Filing of Claim

Neb. Rev. Stat. § 30-2486 (Reissue 2016) sets forth two 

ways in which a claim against an estate may be presented. 

Under § 30-2486(1), the claim may be filed with the probate 

court. Alternatively, under § 30-2486(2), a claimant may file 

suit to recover the amount of the claim, so long as the suit is 

filed within the time period provided for filing claims with 

the estate.

Here, it is undisputed that Pribil did neither. Pribil did not 

file a written statement of his claim with the clerk of the court, 

nor did he commence a court proceeding against Kilzer, the 

copersonal representative of Lakin’s estate.

25 See, In re Estate of Skade, supra note 21; Phifer, supra note 21.

26 See In re Estate of Baker, supra note 21.
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Despite this record, appellees contend that on April 26, 

2016, approximately 29 days after Lakin’s death, Pribil discussed the note with Kilzer and with an attorney hired to 

represent the copersonal representatives. The next day, Pribil 

emailed a copy of the note, a letter, and his calculation of interest to the attorney and Kilzer. Appellees argue that the same 

should constitute notice of the claim.

[23] This court has held, however, that mere notice to a 

representative of an estate regarding a possible demand or 

claim against the estate does not constitute presenting or filing a claim under the statute. 27 In J.R. Simplot Co. v. Jelinek,

 28

a company provided crop services to the decedent’s estate. 

When payments for the services were not made, the company 

filed a “‘Demand for Notice’” with the county court and then 

filed an action against the estate’s personal representative. 29

The demand for notice simply stated that the company had a 

financial interest in the estate and held an outstanding claim, 

but failed to include either a basis for the claim or the amount 

due. 30 In determining whether the company’s demand for 

notice operated as a timely claim under § 30-2486, we looked 

to our past decision in In re Estate of Feuerhelm.

 31 In doing so, 

we explained that the claim in In re Estate of Feuerhelm was 

deficient, in part, because “‘[a]lthough the language of [the] 

claim did alert the personal representative to the possibility 

of a claim by the trust, [the] claim did not contain a demand 

. . . upon the estate for satisfaction of any obligation. . . .’” 32

We also explained that if notice were accorded the stature 

27 J.R. Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (2008); In re 

Estate of Feuerhelm, 215 Neb. 872, 341 N.W.2d 342 (1983).

28 J.R. Simplot Co., supra note 27.

29 Id. at 556, 748 N.W.2d at 25.

30 Id.

31 In re Estate of Feuerhelm, supra note 27.

32 J.R. Simplot Co., supra note 27, 275 Neb. at 557, 748 N.W.2d at 25.
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of a claim, the resultant state of flux and uncertainty would 

frustrate and avoid the purpose and objectives of the nonclaim statute. 33

Here, Pribil merely gave notice of the claim to Kilzer, but 

did so in a manner that failed to comply with the plain language of § 30-2486(2). Thus, we find no reason why Pribil’s 

letter or notice of his claim to Kilzer should be considered sufficient to constitute a proper demand or presentation of a claim 

under § 30-2486. As such, we conclude that Pribil failed to 

properly file or present a claim against Lakin’s estate.

(c) Failure to File Claim

[24] Neb. Rev. Stat. § 30-2485 (Reissue 2016) sets forth the 

limitations on presentation of claims and provides as follows:

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

before the death of the decedent, including claims of 

the state and any subdivision thereof, whether due or to 

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

if not barred earlier by other statute of limitations, are 

barred against the estate, the personal representative, and 

the heirs and devisees of the decedent, unless presented 

as follows:

Within two months after the date of the first publication of notice to creditors if notice is given in compliance 

with sections 25-520.01 and 30-2483, except that claims 

barred by the nonclaim statute at the decedent’s domicile 

before the first publication for claims in this state are also 

barred in this state. If any creditor has a claim against 

a decedent’s estate which arose before the death of the 

decedent and which was not presented within the time 

allowed by this subdivision, including any creditor who 

did not receive notice, such creditor may apply to the 

33 J.R. Simplot Co., supra note 27.
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court within sixty days after the expiration date provided 

in this subdivision for additional time and the court, upon 

good cause shown, may allow further time not to exceed 

thirty days;

(2) Within three years after the decedent’s death if 

notice to creditors has not been given in compliance with 

sections 25-520.01 and 30-2483.

(b) All claims . . . against a decedent’s estate which 

arise at or after the death of the decedent . . . are barred 

. . . unless presented as follows:

. . . .

(2) Any . . . claim [other than one based on a contract 

with the personal representative], within four months after 

it arises.

[25-27] The purpose of § 30-2485 is to facilitate and expedite proceedings for distribution of a decedent’s estate, including an early appraisal of the respective rights of interested 

persons and the prompt settlement of demands against the 

estate. 34 As a result of the nonclaim statute, the probate court or 

the personal representative can readily ascertain the nature and 

extent of the decedent’s debts, determine whether any sale of 

property is necessary to satisfy a decedent’s debts, and project 

a probable time at which the decedent’s estate will be ready for 

distribution. 35 If presentation of a claim against a decedent’s 

estate is required, a claim that is not duly and timely presented 

generally is barred, unless the delay is excused or relief is 

granted, and a claim that is not duly presented does not constitute a charge against, or a lien on, the estate. 36

34 In re Estate of Feuerhelm, supra note 27.

35 Id. See Neb. Rev. Stat. ch. 30, art. 24, part 8 (Reissue 1979) (statutory 

general comment).

36 34 C.J.S. Executors and Administrators § 545 (2009). See, In re Estate of 

Giventer, ante p. 39, 964 N.W.2d 234 (2021); In re Estate of Masopust, 

232 Neb. 936, 443 N.W.2d 274 (1989); J. J. Schaefer Livestock Hauling v. 

Gretna St. Bank, 229 Neb. 580, 428 N.W.2d 185 (1988).
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As early as Estate of Fitzgerald v. First Nat. Bank of 

Chariton,

 37 this court held: “An administrator [cannot] waive 

the defense of non-claim to the prejudice of his estate, either 

by agreement with the claimant or by neglecting to plead such 

defense.” In In re Estate of Golden,

 38 we reaffirmed that conclusion and, citing authorities, said:

Claims not filed within the time limited by the county 

court, after due notice, are forever barred. . . . Time and 

notice given by the county court were in strict compliance 

with the statutes. The statute of nonclaim as a bar is more 

rigorously applied than the general statute of limitations. . 

. . In Nebraska an administrator cannot waive the defense 

of nonclaim to the prejudice of the estate.

As a result of our conclusion that Pribil was required to file 

a claim, but failed to do so, the amount owed Pribil under the 

note was barred against the estate, the personal representatives, 

and Lakin’s heirs and devisees. Therefore, there is merit to 

the foundation’s contention that the county court should have 

found that Pribil was required to file a claim with the estate. 

Accordingly, the county county’s determination on that issue is 

hereby reversed.

6. Breach of Fiduciary Duty

In granting appellees summary judgment, the court noted 

that the question before it was whether the payment constituted 

“a breach of fiduciary duty by the personal representatives 

and trustees.” Relying upon § 30-2476(21), the court found 

that the foundation had failed to prove its claims against the 

copersonal representatives, because Pribil and Kilzer showed 

that they paid the note in a manner consistent with the advice 

37 Estate of Fitzgerald v. First Nat. Bank of Chariton, 64 Neb. 260, 261, 89 

N.W. 813, 813 (1902) (syllabus of the court).

38 In re Estate of Golden, 120 Neb. 226, 230, 231 N.W. 833, 836 (1930). 

Accord, In re Estate of Masopust, supra note 36; Supp v. Allard, 162 Neb. 

563, 76 N.W.2d 459 (1956).
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of legal counsel and an accountant. The court then rejected the 

foundation’s claim against the cotrustees, stating that appellees 

“distributed the assets of the Trust in a reasonable manner as 

permitted by the terms of the Trust and the directions of the 

Foundation.”

The foundation argues that since appellees paid a barred 

claim, the county court erred in determining appellees did not 

breach their fiduciary duties as copersonal representatives and 

cotrustees. The foundation contends that appellees abused their 

power and took actions contrary to the foundation, as the primary trust beneficiary. In addition, the foundation calls attention to the following undisputed facts: Appellees did not notify 

the foundation of the note, appellees never requested permission to pay the note, and appellees liquated trust assets in order 

to fully pay the note. The foundation further argues that appellees should be required to repay all sums due and owing and 

that appellees should be removed and replaced.

Appellees emphasize other undisputed facts in the record. 

Appellees rely on language from the note and trust to argue, 

summarized, that Lakin intended to entrust the management of 

his assets to Pribil, “‘a long time, trusted employee of [Lakin] 

with extensive background and expertise,’” and to Kilzer, 

Lakin’s grandson. Brief for appellees at 5. Further, appellees 

argue that they acted in accordance with all of Lakin’s specific 

instructions under the note, including to keep the payment 

confidential and to execute the payment so that it was made as 

a tax-free gift. Appellees contend that their actions fall within 

the discretion granted to personal representatives and trustees 

under Nebraska law and argue that even at the summary judgment stage, they are entitled to judgment as a matter of law.

[28] This court has held that a claim for breach of fiduciary 

duties is likened to professional malpractice. 39 The Court 

of Appeals has determined that in order to prove a cause of 

39 See Community First State Bank v. Olsen, 255 Neb. 617, 587 N.W.2d 364 

(1998).
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action for breach of a fiduciary duty, the moving party must 

prove the elements of negligence. 40 Therefore, in order for 

the foundation to prove that it is entitled to judgment on the 

breach of fiduciary duty cause of action, it must prove that 

appellees owed it a fiduciary duty, that appellees breached that 

duty, that their breach was the cause of the injury to it, and 

that it was damaged. Whether a breach of fiduciary duty has 

occurred is a question of fact. 41

Nebraska law governing personal representatives of an estate 

reflects that under Neb. Rev. Stat. § 30-2464 (Reissue 2016), a 

personal representative is a fiduciary, and that a fiduciary relationship exists between a personal representative and the estate 

of the deceased, as well as the heirs, beneficiaries, and all 

persons interested in the estate. 42 It is the personal representative’s 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, and as expeditiously and efficiently as is consistent with the best interests of the estate.” 43 A 

personal representative’s duty is to act on behalf of the estate 

with the end goal of distributing and closing that estate. 44

A personal representative shall use the authority conferred 

upon him or her by the Nebraska Probate Code; the terms 

of the will, if any; and any order in proceedings to which 

he or she is a party for the best interests of successors to the 

estate. A personal representative is liable to interested persons 

40 In re Louise V. Steinhoefel Trust, 22 Neb. App. 293, 854 N.W.2d 792 

(2014).

41 101 Am. Jur. Trials 1 (2006); 65 Am. Jur. Proof of Facts 3d 109 (2002). 

See, Gillmore v. Morelli, 472 N.W.2d 738 (N.D. 1991); In re Estate of 

Breeden v. Gelfond, 87 P.3d 167 (Colo. App. 2003); Union Miniere, S.A. v. 

Parday Corp., 521 N.E.2d 700 (Ind. App. 1988); Musselman v. Southwinds 

Realty, Inc., 146 Ariz. 173, 704 P.2d 814 (Ariz. App. 1985).

42 In re Estate of Rosso, 270 Neb. 323, 701 N.W.2d 355 (2005).

43 Id. at 331, 701 N.W.2d at 363.

44 J.R. Simplot Co., supra note 27.
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for damage or loss resulting from breach of his or her fiduciary duty. 45

It is established under Nebraska law that a trustee has 

the duty to administer the trust in good faith, in accordance 

with its terms and the purposes and the interests of the beneficiaries, and in accordance with the Nebraska Uniform Trust 

Code. 46 The Nebraska Uniform Trust Code states that trustees 

owe the beneficiaries of a trust duties that include loyalty, 

impartiality, prudent administration, protection of trust property, proper recordkeeping, and informing and reporting. 47 A 

violation by a trustee of a duty required by law, whether willful, fraudulent, or resulting from neglect, is a breach of trust, 

and the trustee is liable for any damages proximately caused 

by the breach. 48

[29,30] We pause to call attention to the summary judgment 

procedural posture of this case. As an appellate court, this court 

is considering the county court’s summary judgment disposition of the foundation’s fiduciary duty claims. Under Nebraska 

law, the party moving for summary judgment has the burden 

of proving that party’s entitlement to judgment as a matter 

of law. 49 On a motion for summary judgment, the question is 

not how a factual issue is to be decided but whether any real 

issue of material fact exists. 50 Entry of summary judgment is 

appropriate only if there are no genuine issues of fact and if, 

as a consequence, one party is entitled to judgment as a matter 

of law. 51

45 See Neb. Rev. Stat. § 30-2473 (Reissue 2016).

46 In re William R. Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807 

(2021); In re Estate of Forgey, 298 Neb. 865, 906 N.W.2d 618 (2018).

47 Id.

48 Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).

49 Bogardi v. Bogardi, 249 Neb. 154, 542 N.W.2d 417 (1996).

50 Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018); Healy v. 

Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994); Schlines v. Ekberg, 172 

Neb. 510, 110 N.W.2d 49 (1961).

51 Blankenship v. Omaha P. P. Dist., 195 Neb. 170, 237 N.W.2d 86 (1976).
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[31] The summary judgment standard is not affected where 

the parties file cross-motions. The fact that both parties simultaneously are arguing that there is no genuine dispute of fact 

does not establish that a trial is unnecessary. 52 As stated by the 

U.S. Court of Appeals for the Third Circuit in Rains v. Cascade 

Industries, Inc.,

 53 if an issue of material fact exists on crossmotions for summary judgment, “it must be disposed of by a 

plenary trial and not on summary judgment.”

We have thus far held that a claim was required to be 

filed with the estate in this case as a matter of law. Despite 

no claim’s being filed, appellees cite to various provisions 

of the Nebraska Probate Code to argue that the payment was 

nevertheless authorized. Appellees’ arguments here are without 

merit and contrary to Nebraska law. Our conclusion that the 

estate’s payment of the note was invalid creates a different 

perspective from which to view the undisputed facts contained 

in the summary judgment record. The often-stated rule in 

Nebraska is that in reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted, and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. 54

Having given full consideration to the record and the parties’ 

arguments, we conclude that the foundation has raised genuine issues of material fact regarding its breach of fiduciary 

52 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720 

(4th ed. 2016), citing F. H. McGraw & Co. v. New England Foundation 

Co., 210 F.2d 62 (1st Cir. 1954); Home Ins. Co. v. Aetna Cas. & Sur. Co., 

528 F.2d 1388 (2d Cir. 1976); Levine v. Fairleigh Dickinson University, 

646 F.2d 825 (3d Cir. 1981); Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 

1994); Capital Films Corp. v. Charles Fries Productions, 628 F.2d 387 

(5th Cir. 1980); and B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587 

(6th Cir. 2001).

53 Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir. 1968). 

Accord Peterson v. Homesite Indemnity Co., 287 Neb. 48, 840 N.W.2d 885 

(2013).

54 Sundermann, supra note 1.
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claims against appellees. Summary judgment should not have 

been granted. 55 The judgment of the trial court is reversed 

and the cause is remanded for further proceedings according 

to law.

7. § 6-1437

The foundation argues, pursuant to § 6-1437 of the Supreme 

Court rules, that Pribil breached his duties as a copersonal representative, because he failed to obtain court permission prior 

to paying himself in excess of $250. However, we conclude 

that a dispute of material fact exists on this issue as well. Our 

record is not clear on the source of the payment, who made the 

payment, and in what capacity. While the record does contain 

Pribil’s deposition testimony on this issue, the check is not in 

our record. Resolution of this issue must be remanded to the 

trial court.

8. Judicial Admission

Because the issue will likely recur on remand, we address 

whether Pribil made a judicial admission in his application for 

informal probate. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where 

those issues are likely to recur during further proceedings. 56

The foundation argues that Pribil made a judicial admission 

concerning his status as a creditor when he filed his application for informal probate of the will and informal appointment 

of a personal representative. Specifically, the foundation relies 

on paragraph 8, which indicates that “the nominated personal 

representative is neither indebted to the estate nor a creditor of 

the estate.”

55 See, e.g., Valentine Production Credit Assn. v. Spencer Foods, Inc., 196 

Neb. 119, 241 N.W.2d 541 (1976); Youngs v. Wagner, 172 Neb. 735, 111 

N.W.2d 629 (1961); Ingersoll v. Montgomery Ward & Co., Inc., 171 Neb. 

297, 106 N.W.2d 197 (1960).

56 Fitzgerald v. Community Redevelopment Corp., 283 Neb. 428, 811 N.W.2d 

178 (2012).
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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

IN RE ESTATE OF LAKIN

Cite as 310 Neb. 271

[32-34] A judicial admission, as a formal act done in the 

course of judicial proceedings, is a substitute for evidence and 

thereby waives and dispenses with the production of evidence 

by conceding for the purpose of litigation that the proposition 

of fact alleged by an opponent is true. 57 Judicial admissions 

must be deliberate, clear, and unequivocal, and they do not 

extend beyond the intent of the admission as disclosed by its 

context. 58 Formal acts that may operate as judicial admissions 

include statements made in pleadings. 59

Contrary to the foundation’s argument, the record indicates 

that at the time Pribil executed the application for informal 

probate, he did not believe himself to be a creditor, as he considered the amount owed to him ordinary wages which could 

be paid as an ongoing business expense. Any such admission of Pribil was not deliberate, clear, and unequivocal. This 

assignment of error is without merit.

V. CONCLUSION

The county court erred in determining that Pribil’s failure 

to file a claim with the estate did not bar the claim. Disputed 

issues of material fact remain regarding the foundation’s fiduciary duty claims. As a result, the court erred in granting 

appellees’ motions for summary judgment. This matter must 

be and is remanded to the county court for further proceedings 

consistent with this opinion.

Reversed and remanded for 

further proceedings.

Miller-Lerman and Papik, JJ., not participating.

57 State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).

58 Id.

59 Id.