A-20-840 Margo Loop, as guardian and conservator for Lorine Mueller (Appellee) v. Cheryl Mueller (Appellant) v. Margo Loop, individually (Appellee/Intervenor) v. Gary Mueller (Appellee)
In 2015, Margo Loop, in her role as the guardian and conservator for her mother Lorine Mueller, filed an action against Cheryl Mueller (Cheryl) in the district court for Platte County for breach of fiduciary duty, fraud, unjust enrichment, negligence, conversion, and declaratory judgment. On January 8, 2016, the court entered an order on a confession of judgment in favor of Loop and against Cheryl in the amount of $ 340,846.52. The confession of judgment and order of entry of judgment were made pursuant to a settlement and mutual release agreement, which stipulated that “Margo and Lorine’s estate shall not seek to collect the Confession of Judgment.” However, the agreement reserved Loop’s right to contest any actions taken in Lorine’s estate proceeding after her passing.
Lorine moved to Kansas, where she died testate on February 6, 2017. Loop filed a petition in Kansas to probate her mother’s 1979 will. The personal representative of Lorine’s estate filed a petition to probate Lorine’s 2007 will. The 2007 will left the majority of Lorine’s property to Cheryl. A will contest ensued and a special administrator was appointed. On November 20, 2017, Loop filed a motion in the probate case requesting that the court, in the event that Cheryl is entitled to receive a distribution from the estate, grant the special administrator the authority to register the Nebraska judgment and apply the amount owed against Cheryl’s distribution. On December 5, Cheryl, acting pro se, filed a responsive motion, with an affidavit and copy of the settlement agreement. Cheryl alleged that “the documentation or instrument attached hereto is fraudulent, . . . and that documentation or instrument should therefore not be accorded lien status.”
The probate court held a hearing and admitted the 2007 will to probate. Loop filed an appeal. The Kansas Court of Appeals affirmed. On March 3, 2020, the probate court heard arguments and found that it would grant Loop’s request to set off the Nebraska judgment against Cheryl’s distribution, but stayed enforcement pending Cheryl’s attempt to set aside the judgment in Nebraska.
Cheryl had, on November 19, 2019, filed a complaint in the district court for Platte County, Nebraska to vacate the 2016 judgment. Cheryl alleged that the judgment was procured by Loop’s fraudulent representation that the judgment would never be enforced. In her amended complaint filed November 27, Cheryl alleged that she did not discover sufficient evidence of the fraud within the time allowed by Neb. Rev. Stat. § 25-2008, for commencing the proceeding to vacate the judgment. The executor of the 2007 will filed an answer alleging that, under § 25-2008, the complaint was not filed with two years of the entry of judgment. Loop filed an answer as intervenor which raised the same defense, and alleged that no fraud exception applied, because Cheryl discovered the fraud within the two year period. Loop moved for summary judgment.
The court held a hearing on Loop’s motion for summary judgment on June 8, 2020. On October 30, the district court issued an order finding that Cheryl’s complaint, filed roughly 3 years and 10 months after the entry of judgment, was clearly commenced outside of the time constraints of § 25-2008. The court found that, an exception to the 2 year time limitation applies if fraud was not discovered within that 2-year period. However, the court also found the evidence established that, based on her filings in the probate case, Cheryl knew of the alleged fraud within two years of entry of judgment. The court granted Loop’s motion for summary judgment and dismissed Cheryl’s complaint to vacate. Cheryl appeals, arguing that the fraud exception does apply, because her motions in the probate case are insufficient proof that she knew of the fraud. Cheryl further argues that the statute of limitations should have been tolled due to the Kansas litigation.