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Correa v. Estate of Hascall

Supreme Court of Nebraska

July 25, 2014

GLORIA CORREA, APPELLANT,
v.
ESTATE OF E. DEAN HASCALL, DECEASED, AND NEOMI D. HASCALL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF E. DEAN HASCALL, APPELLEES

Page 771

Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge.

Patrick E. McNamara and Ryan M. Hoffman, of Anderson, Bressman & Hoffman Law Firm, P.C., L.L.O., for appellant.

Karen Weinhold, of Engles, Ketcham, Olson & Keith, P.C., for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MILLER-LERMAN, and CASSEL, JJ. McCormack, J., not participating.

OPINION

Page 772

Heavican, C.J.

INTRODUCTION

Gloria Correa filed this negligence action against the estate of the decedent, E. Dean Hascall (Hascall), and the estate's personal representative, Neomi D. Hascall. The district court granted the estate's motion for summary judgment and denied Correa's motion for leave to file an amended complaint. Correa appeals. We conclude that the district court lacked jurisdiction over these motions and that likewise, this court [288 Neb. 663] lacks jurisdiction over Correa's appeal. Accordingly, we dismiss the appeal.

BACKGROUND

Correa and Hascall were involved in a motor vehicle accident in Sarpy County, Nebraska, on September 17, 2008. Hascall died on November 16, 2008, apparently of causes unrelated to the accident with Correa.

Hascall's death prompted the opening of his estate. On October 19, 2009, Hascall's widow, Neomi, was appointed personal representative of the estate. The estate was closed on September 24, 2010. Neomi was discharged as personal representative on September 1, 2011.

On September 14, 2012, Correa filed a complaint alleging Hascall's negligence in the September 17, 2008, accident. The complaint was served on the estate and Neomi on November 7, 2012. In their amended answer, filed April 5, 2013, the estate and Neomi alleged several affirmative defenses, including that Correa's suit failed to state a cause of action upon which relief could be granted, because an action could not be brought against an estate that had been closed or a personal representative that had been discharged.

On May 17, 2013, the estate and Neomi filed for summary judgment. On June 17, Correa's motion for an emergency order reopening the estate and appointing a special administrator was granted by the probate court. On that same day, Correa filed a motion for leave to file an amended complaint.

A hearing was held on July 1, 2013, on both the motion for summary judgment and the motion for leave to file an amended complaint. The hearing began with counsel for Correa presenting arguments on the motion for leave to file an amended complaint. Counsel for the estate and Neomi then presented their motion for summary judgment, arguing that dismissal

Page 773

would be appropriate because Correa filed suit against a closed estate and a discharged personal representative. The district court took the motion for leave to amend under advisement and indicated that it would " reset the Motion for Summary Judgment if necessary." On July 30, the district court granted [288 Neb. 664] the estate and Neomi's motion for summary judgment and denied as moot Correa's motion for leave to amend.

ASSIGNMENTS OF ERROR

Correa assigns, renumbered, that the district court erred in (1) denying Correa's motion for leave to file an amended complaint because all parties had notice of the claim; (2) denying Correa's motion for leave to file an amended complaint because the occurrence alleged in the amended complaint arose out of the same occurrence as the original complaint; (3) granting summary judgment without allowing Correa the opportunity to oppose the motion for summary judgment; and (4) ...


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