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02/17/2017 09:09 AM CST




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                                  Nebraska Supreme Court A dvance Sheets
                                          295 Nebraska R eports
                                                 HARRING v. GRESS
                                                 Cite as 295 Neb. 852




                       M arcia M. H arring, appellant, v. Janis J. Gress and
                       Fredrick Gress, Copersonal R epresentatives of the
                          Estate of Darin J. Gress, deceased, appellees.
                                                    ___ N.W.2d ___

                                        Filed February 17, 2017.   No. S-16-362.

                1.	 Motions to Dismiss: Appeal and Error. A district court’s grant of a
                    motion to dismiss is reviewed de novo.
                2.	 Courts: Justiciable Issues. Ripeness is a justiciability doctrine that
                    courts consider in determining whether they may properly decide a
                    controversy.
                3.	 Courts. The fundamental principle of ripeness is that courts should
                    avoid entangling themselves, through premature adjudication, in abstract
                    disagreement based on contingent future events that may not occur at all
                    or may not occur as anticipated.

                 Appeal from the District Court for Thayer County: Vicky
               L. Johnson, Judge. Reversed and remanded for further
               proceedings.
                    Daniel L. Werner, P.C., L.L.O., for appellant.
                 Sheri Burkholder, of McHenry, Haszard, Roth, Hupp,
               Burkholder & Blomenberg, P.C., L.L.O., for appellees.
                 Heavican, C.J., Wright, Miller-Lerman, Cassel, and
               Stacy, JJ.
                    Heavican, C.J.
                                    INTRODUCTION
                  Marcia M. Harring filed suit in the district court seeking
               the allowance of an unliquidated claim against the decedent’s
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                         HARRING v. GRESS
                         Cite as 295 Neb. 852

estate and the imposition of a lien against real property owned
by the estate or, in the alternative, a trust, constructive or oth-
erwise, to secure payment of that claim, as well as judgment
for attorney fees and costs. The estate’s motion to dismiss
was granted, and Marcia appeals. We reverse, and remand for
further proceedings.
                         BACKGROUND
   Marcia was previously married to the decedent, Darin J.
Gress. Justin Gress, son of Marcia and Darin, was born
in 2000.
   Marcia and Darin were divorced in 2009. That decree pro-
vided in part:
        “12. Pursuant to the stipulation of the parties in regard
     to Justin’s funds, the Court approves creation of a joint
     account requiring the signatures of both parties for dis-
     bursement for college expenses. Any savings held in the
     name of Justin and not used for his education shall be
     transferred to him when he reaches his age of majority or
     becomes otherwise emancipated.
        “13. Pursuant to the stipulation of the parties, Darin
     and Marcia are ordered to equally pay for Justin’s rea-
     sonable secondary educational expenses not otherwise
     covered by his savings accounts. Such expenses include
     tuition, books, and housing.”
   Darin died on May 15, 2015, and his estate is being pro-
bated in the Thayer County Court. Janis J. Gress and Fredrick
Gress are the copersonal representatives of the estate; Justin is
an heir at law.
   On August 4, 2015, Marcia filed a claim with Darin’s estate
on Justin’s behalf. The claim sought one-half of Justin’s rea-
sonable secondary educational expenses not otherwise covered
by his savings accounts, due upon incurring such expenses.
The claim indicated that it was contingent and unliquidated.
This claim was disallowed by the estate.
   Marcia filed suit in the district court against the estate, seek-
ing that the court order the claim filed on August 4, 2015, be
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                Nebraska Supreme Court A dvance Sheets
                        295 Nebraska R eports
                              HARRING v. GRESS
                              Cite as 295 Neb. 852

“allowed,” and further that the court confirm the lien of the
court’s judgement against real property owned by the estate.
Marcia also filed a second cause of action against Janis and
Fredrick, arguing that they owed a fiduciary duty to the estate
to pay all lawful claims and that this duty was breached when
the claim was disallowed. Marcia sought to impose a construc-
tive trust on the assets of the estate.
   The estate filed a motion to dismiss, which was granted. In
dismissing the action, the district court found that the issue
was not ripe for resolution because it was not possible to
know the amount of “‘reasonable’” educational expenses. The
district court also noted that Justin is a beneficiary of Darin’s
estate and that if the trustee failed to pay expenses as provided
by Darin’s instructions, Justin would have a cause of action
against the trustee. Thus, “[a]s there is already a trust in exis-
tence with the obligation to pay Justin’s college expenses, there
is no reason to create a constructive trust to do the exact same
thing Marcia requests.”
   Marcia appeals.

                  ASSIGNMENTS OF ERROR
   Marcia assigns that the district court erred in (1) finding
that Justin was a beneficiary of Darin’s estate and entitled to
one-third of Darin’s net estate; (2) determining that under the
terms of the trust, the trustee is required to pay the educa-
tional expenses of the minor children and Justin would have
a cause of action against the trustee for the failure to pay
such expenses; and (3) determining that the unliquidated and
contingent nature of the claim resulted in its being unfit for
judicial resolution.

                   STANDARD OF REVIEW
  [1] A district court’s grant of a motion to dismiss is reviewed
de novo.1

 1	
      Litherland v. Jurgens, 291 Neb. 775, 869 N.W.2d 92 (2015).
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                       HARRING v. GRESS
                       Cite as 295 Neb. 852

                           ANALYSIS
   On appeal, Marcia makes several arguments, but all are in
support of her primary contention that the district court erred
in dismissing her suit.
   Marcia’s suit is based upon her claim against Darin’s estate.
Some background is helpful to understand this process.
   Neb. Rev. Stat. § 30-2486 (Reissue 2016) provides for the
presentation of claims against an estate:
         (1) The claimant may file a written statement of the
      claim, in the form prescribed by rule, with the clerk of
      the court. The claim is deemed presented on the filing
      of the claim with the court. If a claim is not yet due,
      the date when it will become due shall be stated. If the
      claim is contingent or unliquidated, the nature of the
      uncertainty shall be stated. If the claim is secured, the
      security shall be described. Failure to describe correctly
      the security, the nature of any uncertainty, and the due
      date of a claim not yet due does not invalidate the pre-
      sentation made.
         (2) The claimant may commence a proceeding against
      the personal representative in any court which has sub-
      ject matter jurisdiction and the personal representative
      may be subjected to jurisdiction, to obtain payment of
      his or her claim against the estate, but the commence-
      ment of the proceeding must occur within the time lim-
      ited for presenting the claim. No presentation of claim
      is required in regard to matters claimed in proceedings
      against the decedent which were pending at the time of
      his or her death.
         (3) If a claim is presented under subsection (1), no
      proceeding thereon may be commenced more than sixty
      days after the personal representative has mailed a notice
      of disallowance; but, in the case of a claim which is not
      presently due or which is contingent or unliquidated, the
      personal representative may consent to an extension of
      the sixty-day period, or to avoid injustice the court, on
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                        HARRING v. GRESS
                        Cite as 295 Neb. 852

     petition, may order an extension of the sixty-day period,
     but in no event shall the extension run beyond the appli-
     cable statute of limitations.
Neb. Rev. Stat. § 30-2485 (Reissue 2016) provides:
        (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 unliq-
     uidated, 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:
        (1) Within two months after the date of the first publi-
     cation of notice to creditors if notice is given in compli-
     ance with sections 25-520.01 and 30-2483 . . . .
        (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, other than for costs and expenses of
     administration as defined in section 30-2487, against a
     decedent’s estate which arise at or after the death of the
     decedent, including claims of the state and any subdivi-
     sion thereof, whether due or to become due, absolute or
     contingent, liquidated or unliquidated, founded on con-
     tract, tort, or other legal basis, are barred against the
     estate, the personal representative, and the heirs and devi-
     sees of the decedent, unless presented as follows:
        (1) A claim based on a contract with the personal rep-
     resentative, within four months after performance by the
     personal representative is due;
        (2) Any other claim, within four months after it arises.
        (c) Nothing in this section affects or prevents:
        (1) Any proceeding to enforce any mortgage, pledge, or
     other lien upon property of the estate; or
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               Nebraska Supreme Court A dvance Sheets
                       295 Nebraska R eports
                              HARRING v. GRESS
                              Cite as 295 Neb. 852

        (2) To the limits of the insurance protection only, any
     proceeding to establish liability of the decedent or the
     personal representative for which he or she is protected
     by liability insurance.
  Neb. Rev. Stat. § 30-2492 (Reissue 2016) sets forth the
procedure to follow in the case of unliquidated or contin-
gent claims:
        (a) If a claim which will become due at a future time or
     a contingent or unliquidated claim becomes due or certain
     before the distribution of the estate, and if the claim has
     been allowed or established by a proceeding, it is paid in
     the same manner as presently due and absolute claims of
     the same class.
        (b) In other cases the personal representative or, on
     petition of the personal representative or the claimant in
     a special proceeding for the purpose, the court may pro-
     vide for payment as follows:
        (1) if the claimant consents, he may be paid the pres-
     ent or agreed value of the claim, taking any uncertainty
     into account;
        (2) arrangement for future payment, or possible pay-
     ment, on the happening of the contingency or on liqui-
     dation may be made by creating a trust, giving a mort-
     gage, obtaining a bond or security from a distributee,
     or otherwise.
  [2,3] The basis of the district court’s decision was that
Marcia’s claim was not ripe.
        Ripeness is a justiciability doctrine that courts con-
     sider in determining whether they may properly decide
     a controversy.2 The fundamental principle of ripeness is
     that courts should avoid entangling themselves, through
     premature adjudication, in abstract disagreements based
     on contingent future events that may not occur at all or
     may not occur as anticipated.3

 2	
      Shepard v. Houston, 289 Neb. 399, 407, 855 N.W.2d 559, 566 (2014).
 3	
      Id.
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           Nebraska Supreme Court A dvance Sheets
                   295 Nebraska R eports
                        HARRING v. GRESS
                        Cite as 295 Neb. 852

Specifically, the district court noted:
      [I]t would appear that additional factual development is
      necessary. First, one does not know whether sufficient
      savings were provided under the Decree’s provisions. One
      does not know the amount of “reasonable” educational
      expenses. Whether Justin qualifies for student financial
      aid is unknown. The amount of Justin’s share of the estate
      is unknown. Finally, and most importantly, it appears there
      are no post-secondary expenses yet incurred. Marcia’s
      claim recognized this by acknowledging that her claim
      was contingent and unliquidated. Given these unknowns,
      the issue is not yet fit for judicial resolution.
   We agree with the district court that there are a great number
of unknowns in this case. Indeed, Marcia acknowledges that
her claim was contingent and unliquidated. But the unknowns
presented by this case are insufficient, on the facts and situa-
tion presented, to make Marcia’s suit not ripe.
   Sections 30-2485 and 30-2492 plainly allow for such a
claim. Sections 30-2485 and 30-2486 require Marcia to make
this claim now; given the limitations on the filing of claims, a
claim made after resolution of the various unknowns would be
untimely and barred. We therefore reverse the district court’s
dismissal and remand the cause for further proceedings.
   Because we are reviewing the grant of a motion to dismiss,
for all relevant purposes, our record is limited to the pleadings
filed in this case. Having reviewed those pleadings, we note
that to the extent the district court and parties focus on an obli-
gation to provide for Justin’s college educational expenses, the
divorce decree, at least as set forth in the pleadings, does not
provide for payment of such expenses.
                       CONCLUSION
   We conclude that Marcia’s action was ripe. We accordingly
reverse, and remand for further proceedings.
	R eversed and remanded for
	                                further proceedings.
   K elch and Funke, JJ., not participating.
