Johnson v. Antoniutti

- 465 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
Nancy Johnson and Arld Johnson, husband
and wife, appellants, v. Giulia Antoniutti,
Special Administrator of the Estate of
Domenico Zurini, deceased, appellee.
___ N.W.3d ___
Filed February 14, 2025. 	No. S-24-128.
1. Motions to Vacate: Time: Appeal and Error. A court has inherent
power to vacate or modify its own judgments at any time during the
term in which those judgments are pronounced, and a decision to vacate
will be reversed only if the district court abused its discretion.
2. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
3. Limitations of Actions: Motions to Dismiss. When a motion to dismiss
is based on the statute of limitations, it can succeed only when the face
of the complaint shows that the action is time barred.
4. Actions: Complaints: Parties: Death. As a general rule, an action is
commenced on the day that the complaint is filed. But a complaint that
names a deceased person individually as the sole defendant is a legal
nullity and does not validly commence an action under Nebraska law.
5. Actions: Complaints: Parties: Death: Decedents’ Estates. An action
to recover for the negligence of a person who died before the complaint
was filed is not validly commenced unless the complaint is filed against
a duly appointed personal representative or special administrator of the
deceased person’s estate.
6. Actions: Complaints: Parties: Death. No action is validly commenced
by filing a complaint that names, as the only defendant, a person who is
deceased or an entity that does not exist in the eyes of the law; such a
complaint is considered a legal nullity.
7. Actions: Complaints: Parties: Death: Abatement, Survival, and
Revival: Statutes. No question of revivor is presented where there
has been no action commenced. A statute that provides for revival of
an action after the death of a party applies only to an action that has
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:10 AM CDT

- 466 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
actually been commenced before, and is pending at, the time of death.
An action cannot be revived where it was dead from its inception
because the named defendant or plaintiff was not living when the com-
plaint was filed.
Appeal from the District Court for Douglas County, LeAnne
M. Srb, Judge. Affirmed.
Angela L. Burmeister and Ashley R. Palma, of Berkshire &
Burmeister, for appellants.
John Andrew McWilliams and Thomas A. Grennan, of
Gross, Welch, Marks & Clare, P.C., L.L.O., for appellee.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik, and
Freudenberg, JJ.
Stacy, J.
Nancy Johnson and Domenico Zurini were involved in a
motor vehicle accident in Omaha, Nebraska. A few days before
the 4-year statute of limitations expired, 1 Johnson and her
husband, Arld Johnson, filed a negligence complaint against
Zurini in the district court for Douglas County. After attempt-
ing unsuccessfully to serve summons, the Johnsons learned
that Zurini had died before the complaint was filed. The
Johnsons had a special administrator appointed and moved
to revive the action in the name of the special administrator.
The district court initially granted that motion, after which
the Johnsons filed an amended complaint naming the special
administrator of Zurini’s estate as the only defendant. The
special administrator entered a voluntary appearance and then
moved to vacate the order of revivor and dismiss the amended
complaint, arguing that no viable action had been commenced
within the statute of limitations. The district court agreed, and
it entered an order vacating the revivor and dismissing the
action as time barred.
1 See Neb. Rev. Stat. § 25-207 (Reissue 2016).

- 467 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
The Johnsons filed this timely appeal, which we moved to
our docket on our own motion. For reasons we will explain,
we affirm.
I. BACKGROUND
The primary issue in this appeal is whether the Johnsons
properly commenced their negligence action within the appli-
cable statute of limitations. Because an understanding of the
timeline is critical to our analysis, we discuss the timeline first
and then summarize the critical dates in a chart.
1. Timeline
On May 24, 2019, Nancy and Zurini were involved in
a motor vehicle accident. Nearly 4 years later, on May 21,
2023, the Johnsons filed a complaint in the district court
for Douglas County, naming Zurini individually as the only
defendant. According to the allegations of the complaint,
Nancy was stopped at an intersection in Omaha when Zurini’s
vehicle struck her vehicle from behind. The complaint alleged
that Zurini’s negligence proximately caused the accident and
resulted in injury to Nancy’s head, neck, back, and ankle. It
sought to recover damages for Nancy’s permanent injury, dis-
ability, medical expenses, diminished earning capacity, and
pain and suffering, and for her husband’s loss of consortium.
After filing the complaint, the Johnsons attempted to serve
summons on Zurini. The record shows they attempted personal
service at a residential address in Omaha, but the return of
service indicated the deputy sheriff was told that Zurini “does
not live at the address.” The Johnsons also attempted personal
service at other Omaha addresses without success.
The record also shows that several months before the
Johnsons filed suit, in December 2022, Zurini’s niece filed
a petition for determination of inheritance tax in the county
court for Douglas County, stating that Zurini died on October
17, 2022. But nothing in the record shows that an estate was

- 468 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
opened for Zurini or that a personal representative or special
administrator was appointed before the Johnsons’ original com-
plaint was filed.
It is undisputed that the Johnsons first learned of Zurini’s
death on or about August 3, 2023. Shortly thereafter, the
Johnsons asked the county court to appoint an attorney as the
special administrator of Zurini’s estate, which it did on August
29, 2023.
That same day, the Johnsons filed what they titled a “Showing
of Death and Motion to Revive and Substitute” in the district
court. The motion recited that Zurini had died October 17,
2022, and that a special administrator had been appointed on
August 29, 2023. The motion asked the court to “take notice of
the death,” to “revive this case,” and to “substitute” the special
administrator as the named defendant.
On September 15, 2023, without holding a hearing on the
Johnsons’ revivor motion, 2 the district court sustained the
motion and entered an “Order of Revivor and Substitution.”
The order took notice of the date of Zurini’s death, purported
to “revive[]” the action, substituted the special administrator as
the named defendant, and directed that the caption of the case
be changed accordingly.
On September 21, 2023, pursuant to an agreement of the
parties, Zurini’s niece was substituted by the county court as
the special administrator of Zurini’s estate. On September 25,
the Johnsons filed in the district court an amended complaint,
which contained the same allegations as the original complaint
but which named as the sole defendant the special adminis-
trator of Zurini’s estate. The special administrator entered a
voluntary appearance that same day, expressly reserving “all
defenses and the right to further plead” in response to the
amended complaint.
2 But see Neb. Rev. Stat. § 25-1408 (Reissue 2016) (setting out procedure
when adverse party does not consent to revivor).

- 469 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
In chart form, the critical dates are as follows:
May 24, 2019 	The motor vehicle accident occurs.
October 17, 2022 	Zurini dies.
May 21, 2023 	The Johnsons file the negligence
complaint naming Zurini as the sole
defendant.
May 24, 2023 	The 4-year statute of limitations runs.
August 3, 2023 	The Johnsons learn Zurini was
deceased when the complaint
was filed.
August 29, 2023 	The Johnsons have the special
administrator appointed by the county
court and file the motion for revivor
and substitution in the district court.
September 15, 2023 	The district court issues the order of
revivor and substitutes the special
administrator as the defendant.
September 25, 2023 	The Johnsons file the amended
complaint naming the special
administrator as the defendant; the
voluntary appearance is filed.
2. Motion to Vacate and Motion to Dismiss
On October 25, 2023, the special administrator moved to
vacate the order of revivor and substitution, arguing it had
been improperly granted. On the same date, the special admin-
istrator also moved to dismiss the amended complaint for fail-
ure to state a claim, arguing it was filed outside the applicable
statute of limitations. A hearing on these motions was set, then
continued to December 21.
At the December 21, 2023, hearing, the special adminis-
trator challenged the merits of the revivor and substitution
order, generally arguing there was no viable action to revive

- 470 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
because the original complaint named a deceased person as
the only defendant and was therefore a legal nullity. The spe-
cial administrator also argued that although the amended com-
plaint named a viable defendant, it was time barred because
it was filed after the limitations period expired, and that
Nebraska’s relation back statute, Neb. Rev. Stat. § 25-201.02
(Reissue 2016), did not apply.
In a single order entered January 30, 2024, the court granted
both the motion to vacate and the motion to dismiss. Regarding
the motion to vacate, the court noted its inherent authority to
vacate its own orders during term, 3 and it observed that the
motion to vacate had been filed during the same term as the
order of revivor and substitution. 4 The court then concluded
that “[u]pon further reflection,” the order of revivor and sub-
stitution was improper and must be vacated. Reasoning that
the original complaint was a legal nullity because Zurini was
deceased when it was filed, the court concluded that on the
date the order of revivor and substitution was entered, there
was no viable action pending that was subject to either revivor
or substitution.
The order of January 30, 2024, also granted the special
administrator’s motion to dismiss the amended complaint as
time barred. In doing so, the court reasoned that although the
amended complaint properly named the special administrator
of Zurini’s estate as the defendant, it was filed after the appli-
cable limitations period had expired, and that Nebraska’s rela-
tion back statute either did not apply or had not been satisfied.
The court therefore dismissed the action as time barred, “[t]o
the extent that a matter remains pending.”
The Johnsons filed this timely appeal, which we moved to
our docket on our own motion.
3 See Neb. Rev. Stat. § 25-2001 (Reissue 2016).
4 See Rules of Dist. Ct. of Fourth Jud. Dist. 4-1(C) (rev. 2022) (setting term
of court as July 1, 2023, to June 30, 2024).

- 471 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
II. ASSIGNMENTS OF ERROR
The Johnsons assign, consolidated and restated, that the
district court erred in (1) concluding the original complaint
was a legal nullity, (2) concluding the amended complaint was
time barred and did not relate back to the original complaint
under § 25-201.02, and (3) vacating the order of revivor and
dismissing the action as time barred.
III. STANDARD OF REVIEW
[1] A court has inherent power to vacate or modify its
own judgments at any time during the term in which those
judgments are pronounced, and a decision to vacate will be
reversed only if the district court abused its discretion. 5
[2,3] A district court’s grant of a motion to dismiss is
reviewed de novo. 6 When the motion is based on the statute of
limitations, it can succeed only when the face of the complaint
shows that the action is time barred. 7
IV. ANALYSIS
As stated, the primary issue in this appeal is whether the
Johnsons’ negligence action was properly commenced within
the applicable limitations period. In Nebraska, a negligence
action such as this must be commenced within 4 years. 8
Because the motor vehicle accident occurred on May 24,
2019, the last day of the 4-year limitations period was May
24, 2023. However, the parties appear to agree that Zurini’s
death extended the 4-year limitations period by 2 months pur-
suant to Neb. Rev. Stat. § 30-2484 (Reissue 2016). That statute
provides that the “running of any statute of limitations mea-
sured from some other event than death and advertisement for
5 See Kibler v. Kibler, 287 Neb. 1027, 845 N.W.2d 585 (2014).
6 Schaeffer v. Frakes, 313 Neb. 337, 984 N.W.2d 290 (2023).
7 Schuemann v. Timperly, 314 Neb. 298, 989 N.W.2d 921 (2023).
8 See § 25-207(3). See, also, Susman v. Kearney Towing & Repair Ctr., 310
Neb. 910, 970 N.W.2d 82 (2022).

- 472 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
claims against a decedent is suspended during the two months
following 	the 	decedent’s 	death 	but 	resumes 	thereafter.” 9
Assuming without deciding that § 30-2484 applies on the
facts of this case, 10 we agree it would extend the running of
the limitations period to July 24, 2023.
The original complaint was filed May 21, 2023, within the
limitations period. The Johnsons argue the original complaint
timely commenced an action, even though they concede it
named a deceased person as the sole defendant. Relying on
the premise that the original complaint timely commenced an
action, the Johnsons contend that their amended complaint—
which named the special administrator as the defendant, but
which was filed outside the limitations period—related back 11
to the date the original complaint was filed and thus was
timely and should not have been dismissed. Alternatively, the
Johnsons argue the district court abused its discretion in vacat-
ing its order of revivor and substitution. 12
[4] As a general rule, “an action is commenced on the day
that the complaint is filed.” 13 But as we will explain, because
the Johnsons’ original complaint named a deceased person as
the sole defendant, it was a legal nullity and did not validly
commence an action under Nebraska law.
1. Nebraska Statutes
We begin with a review of the Nebraska statutes that govern
commencement of actions and relation back.
9 § 30-2484.
10 See Sparks v. Mach, 314 Neb. 724, 993 N.W.2d 119 (2023).
11 See, Neb. Rev. Stat. § 25-217 (Cum. Supp. 2024); § 25-201.02.
12 See, Neb. Rev. Stat. §§ 25-1403 to 25-1417 (Reissue 2016 & Cum. Supp.
2024) (governing revivor of actions); Neb. Rev. Stat. § 25-322 (Reissue
2016) (governing substitution of parties).
13 Johnson v. Johnson, 282 Neb. 42, 45, 803 N.W.2d 420, 423 (2011). See
Fox v. Nick, 265 Neb. 986, 660 N.W.2d 881 (2003). Accord § 25-217.

- 473 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
Section 25-217 is the general statute governing commence-
ment of actions, and it currently provides:
(1) An action is commenced on the day the complaint
is filed with the court.
(2) Each defendant in the action must be properly
served within one hundred eighty days of the commence-
ment of the action. If the action is stayed or enjoined dur-
ing the one-hundred-eighty-day period, then any defend-
ant who was not properly served before the action was
stayed or enjoined must be properly served within ninety
days after the stay or injunction is terminated or modified
so as to allow the action to proceed.
(3) If any defendant is not properly served within the
time specified by subsection (2) of this section then the
action against that defendant is dismissed by operation
of law. The dismissal is without prejudice and becomes
effective on the day after the time for service expires.
The procedure for commencing an action against a dece-
dent’s estate is governed by Neb. Rev. Stat. §§ 30-2404 and
30-2486 (Reissue 2016). Section 30-2404 provides in relevant
part that “[n]o proceeding to enforce a claim against the
estate of a decedent or his successors may be revived or com-
menced before the appointment of a personal representative.”
And § 30-2486 provides in relevant part that a “claimant may
commence a proceeding against the personal representative
in any court which has subject matter jurisdiction . . . but the
commencement of the proceeding must occur within the time
limited for presenting the claim.”
Once an action has been commenced, whether an amended
pleading relates back to the date of the original pleading is
governed by § 25-201.02, which provides:
(1) An amendment of a pleading that does not change
the party or the name of the party against whom the
claim is asserted relates back to the date of the origi-
nal pleading if the claim or defense asserted in the
amended pleading arose out of the conduct, transaction,

- 474 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
or occurrence set forth or attempted to be set forth in the
original pleading.
(2) If the amendment changes the party or the name of
the party against whom a claim is asserted, the amend-
ment relates back to the date of the original pleading if
(a) the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original plead-
ing, and (b) within the period provided for commencing
an action the party against whom the claim is asserted
by the amended pleading (i) received notice of the action
such that the party will not be prejudiced in maintain-
ing a defense on the merits and (ii) knew or should have
known that, but for a mistake concerning the identity
of the proper party, the action would have been brought
against the party.
With this statutory framework in mind, we turn to the
Johnsons’ assigned errors.
2. Original Complaint Did Not
Commence Action
In their first assignment, the Johnsons take issue with the
district court’s conclusion that the original complaint was a
legal nullity and did not commence an action because the
only named defendant was deceased when the complaint was
filed. Several Nebraska appellate opinions have addressed
the effect of complaints filed under similar circumstances. 14
In the sections that follow, we summarize the relevant legal
principles from those opinions, and then apply them to the
instant appeal.
14 See, e.g., Sparks, supra note 10; Correa v. Estate of Hascall, 288 Neb.
662, 850 N.W.2d 770 (2014); Reid v. Evans, 273 Neb. 714, 733 N.W.2d
186 (2007); Babbitt v. Hronik, 261 Neb. 513, 623 N.W.2d 700 (2001). See,
also, Estate of Hansen v. Bergmeier, 20 Neb. App. 458, 825 N.W.2d 224
(2013); Mach v. Schmer, 4 Neb. App. 819, 550 N.W.2d 385 (1996).

- 475 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
(a) Babbitt v. Hronik
In Babbitt v. Hronik, 15 the parties were involved in an
automobile accident in September 1994. Unbeknownst to the
plaintiff, the defendant died of unrelated causes 2 months after
the accident. A few days before the 4-year limitations period
expired, the plaintiff filed a negligence complaint naming
the defendant individually. When the plaintiff attempted to
serve summons, she learned the defendant had died. She also
learned an estate had been opened several years earlier but the
personal representative had been discharged before the com-
plaint was filed.
After the statute of limitations expired, the plaintiff in
Babbitt caused the personal representative to be reappointed
“for the sole purpose of being served with civil process.” 16
The plaintiff also filed motions to “revive” the action in the
name of the personal representative, which were overruled.
Thereafter, within 6 months of the date the original complaint
was filed, the personal representative was served with sum-
mons and a copy of the original complaint that named the
defendant individually.
The personal representative moved for summary judgment
on the ground no valid action had been timely commenced.
She argued the original complaint was a nullity because it was
filed against a defendant who was deceased. And she argued
that no complaint had been timely filed against the decedent’s
estate, because the only complaint filed named the decedent
individually as the sole defendant. The district court agreed,
and it dismissed the action on summary judgment. The plain-
tiff appealed, and we affirmed.
In doing so, we rejected the plaintiff’s contention that
the provisions of § 25-217 governed commencement of an
action brought against a deceased person individually. We
15 Babbitt, supra note 14.
16 Id., 261 Neb. at 515, 623 N.W.2d at 703.

- 476 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
reasoned that § 25-217 only “provides the guidelines for the
commencement of actions generally” and does not affect
the substantive common-law rule that “the death of a party
terminates a lawsuit.” 17 We emphasized that at common law,
a cause of action for injuries to a person did not survive the
death of either the injured person or the wrongdoer. 18 And
although we recognized that the Legislature modified the
common-law rule in part by enacting a statutory procedure
for bringing claims against a decedent’s estate, we explained
that the right to proceed against an estate exists only to the
extent authorized by statute, and the statutory procedure must
be followed.
Babbitt noted that under the statutes governing the proce-
dure for commencing an action against a decedent’s estate,
no claim “‘may be revived or commenced before the appoint-
ment of a personal representative.’” 19 And although the plain-
tiff in Babbitt had the personal representative reappointed and
served with summons and the original complaint, we held that
did not validly commence an action against the estate because
the complaint was filed against the deceased defendant “in
her individual capacity, not against the personal representative
of her estate.” 20 Moreover, reasoning that the complaint filed
against the decedent individually “was a nullity,” 21 we con-
cluded in Babbitt that no valid action had been commenced
and that therefore, the relation back provisions of § 25-201.02
were inapplicable because there was nothing for any amended
complaint to relate back to.
17 Id. at 516, 623 N.W.2d at 703.
18 Babbitt, supra note 14, citing Rhein v. Caterpillar Tractor Co., 210 Neb.
321, 314 N.W.2d 19 (1982).
19 Babbitt, supra note 14, 261 Neb. at 517, 623 N.W.2d at 704 (quoting
§ 30-2404).
20 Id. at 519, 623 N.W.2d at 705.
21 Id. at 518, 623 N.W.2d at 704.

- 477 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
(b) Sparks v. Mach
We considered similar facts in Sparks v. Mach. 22 In that
case, the parties were involved in a motor vehicle accident in
March 2017. Six months later, the defendant died of unrelated
causes. An estate was opened and a special administrator was
appointed, but the estate was closed in 2019 and the special
administrator was discharged.
Apparently 	unaware 	that 	the 	special 	administrator 	had
been discharged, the plaintiff filed a negligence complaint on
February 24, 2021, naming the special administrator as the
only defendant. After learning the estate was closed and the
special administrator had been discharged, the plaintiff had
the estate reopened and the special administrator reappointed.
Then, on April 21, the plaintiff filed an amended complaint
against the reappointed special administrator. And on April
23 (a date within 6 months of the original complaint’s filing
and within 4 years 2 months from the date of the accident),
the special administrator was served with summons and the
amended complaint.
After filing an answer, the special administrator moved for
summary judgment, arguing in part that the original complaint
was a legal nullity because it was filed before the special
administrator was reappointed. The district court agreed and
granted the motion, and the plaintiff appealed. The Nebraska
Court of Appeals affirmed, but on further review, we reversed.
In doing so, we recited the rule that “when an estate is
closed and the personal representative discharged, there is no
viable entity or person to sue.” 23 Because the original com-
plaint in Sparks had been filed against a person who was no
longer the special administrator, we held the original com-
plaint “was not effective and, in that sense, was a nullity.” 24
22 Sparks, supra note 10.
23 Id., 314 Neb. at 741-42, 993 N.W.2d at 132.
24 Id., 314 Neb. at 745, 993 N.W.2d at 134.

- 478 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
But we went on to consider whether the plaintiff had rem-
edied the situation by validly commencing an action against
a viable entity before the limitations period expired. We con-
cluded she had done so, because within the applicable limita-
tions period as extended by § 30-2484, the decedent’s estate
was reopened, the special administrator was reappointed, a
first amended complaint was filed naming a viable entity (the
reappointed special administrator) as the defendant, and sum-
mons was timely served on that defendant. Sparks thus held
that although the original complaint was a nullity because it
did not sue a viable entity, the amended complaint validly
commenced an action against the reappointed special admin-
istrator within the applicable limitations period, and that the
lower courts erred in concluding otherwise.
(c) Reid v. Evans
This court took a somewhat different approach to analyz-
ing similar issues in Reid v. Evans. 25 In that case, the parties
were involved in a motor vehicle accident on December 26,
2000, and the plaintiff filed a negligence complaint against the
defendant individually on September 27, 2004. Unbeknownst
to the plaintiff, the defendant had died before the complaint
was filed.
When the plaintiff learned of the defendant’s death, she had
an estate opened and a special administrator appointed. On
March 19, 2005, the plaintiff served the special administrator
with summons and a copy of the original complaint (which
named only the defendant individually).
On April 15, 2005, the special administrator filed a motion
asking the court to enter an order formalizing that the lawsuit
stood dismissed by operation of law because the only named
defendant had not been served within the time specified by
§ 25-217. At the time, that statute provided that an “‘action
shall stand dismissed without prejudice as to any defendant
25 Reid, supra note 14.

- 479 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
not served within six months from the date the complaint was
filed.’” 26 In response to the special administrator’s motion, the
plaintiff filed a motion seeking leave to file an amended com-
plaint that named the special administrator as the defendant
and arguing that the amended complaint would relate back to
the date of the original filing under § 25-201.02. The county
court concluded that the lawsuit stood dismissed by operation
of law under § 25-217, and it denied leave to amend. The dis-
trict court affirmed.
On further appeal, this court stated that because the case
“was treated as one subject to dismissal under § 25-217 by
the lower courts, . . . our analysis on appeal is framed by the
manner in which the case was litigated and decided below.” 27
When making that statement, Reid included a “compare” cita-
tion to Babbitt, 28 acknowledging the holding in Babbitt that
a complaint filed against a deceased person individually is a
legal nullity that does not commence an action. But rather than
analyze the appeal in Reid under the rule from Babbitt, the
court in Reid elected to confine its analysis to the § 25-217
arguments raised and addressed in the lower courts. And the
Reid opinion was careful to use quotation marks when noting
that the plaintiff’s “lawsuit was ‘commenced’ on September 27,
2004, the day she filed her complaint.” 29
Reid held that after filing the complaint, the plaintiff failed
to serve the only named defendant within 6 months, and that
thus, her complaint stood dismissed by operation of law under
26 Id., 273 Neb. at 718-19, 733 N.W.2d at 189, quoting § 25-217 (Cum.
Supp. 2006). Compare § 25-217 (Cum. Supp. 2024) (providing “[e]ach
defendant in the action must be properly served within one hundred
eighty days of the commencement of the action” and if any defendant is
not properly served within that timeframe, “then the action against that
defendant is dismissed by operation of law . . . effective on the day after
the time for service expires”).
27 Reid, supra note 14, 273 Neb. at 718, 733 N.W.2d at 189.
28 Babbitt, supra note 14.
29 Reid, supra note 14, 273 Neb. at 719, 733 N.W.2d at 189.

- 480 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
§ 25-217. Reid also concluded that service on the personal
representative was “of no effect” because the personal rep-
resentative was not the defendant named in the complaint. 30
Finally, Reid soundly rejected the plaintiff’s relation back
argument, reasoning that because the action stood dismissed
by operation of law under § 25-217, there was no action pend-
ing and “her subsequent motion to amend and take advantage
of relation back was a nullity.” 31
[5] We do not understand our opinion in Reid to be in ten-
sion with the rule from Babbitt that an action is not validly
commenced by filing a complaint that names a deceased per-
son individually as the only defendant. But to the extent such
a reading is possible, it is contrary to Nebraska statutes and
our settled precedent and is expressly disapproved. Instead, as
Sparks and Babbitt illustrate, an action to recover for the neg-
ligence of a person who died before the complaint was filed is
not validly commenced unless the complaint is filed against a
duly appointed personal representative or special administra-
tor of the deceased person’s estate.
Applying 	that 	settled 	rule 	here, 	we 	conclude 	that 	the
Johnsons’ original complaint, which named Zurini individually
as the sole defendant, was a legal nullity that failed to validly
commence an action under Nebraska law, because Zurini was
deceased when the complaint was filed. We therefore agree
with the district court that the original complaint was a legal
nullity, and we find no merit to the Johnsons’ first assignment
of error.
3. Amended Complaint Filed Outside
Limitations Period and Relation
Back Statute Inapplicable
The Johnsons’ second assignment of error challenges the
district court’s determinations that the amended complaint
was untimely filed and that it did not relate back to date the
30 Id. at 719, 733 N.W.2d at 190.
31 Id. at 721, 733 N.W.2d at 191.

- 481 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
original complaint was filed under § 25-201.02. We find no
error in either determination.
The Johnsons acknowledge that their amended complaint
(naming the special administrator as the defendant) was filed
several months after the applicable limitations period expired.
But they contend that under § 25-201.02, the amended com-
plaint relates back to the date the original complaint was filed
and thus was timely filed.
The district court rejected that argument, reasoning pri-
marily that the substantive requirements of the relation back
statute were not met on this record. We do not elaborate on
the court’s reasoning, because we conclude the relation back
statute simply has no application under these circumstances.
[6] Sparks and Babbitt teach that no action is validly com-
menced by filing a complaint that names, as the only defend-
ant, a person who is deceased or an entity that does not exist
in the eyes of the law; such a complaint is considered a legal
nullity. And when the original complaint is a nullity, the rela-
tion back provisions of § 25-201.02 are inapplicable, 32 because
there is nothing to relate back to. Thus, although our reasoning
differs somewhat from that of the district court, we agree the
relation back statute does not apply here.
Moreover, our de novo review shows that the district court
correctly dismissed the amended complaint as time barred.
Although the Johnsons’ amended complaint properly named
the special administrator of Zurini’s estate as the defendant,
it was filed on September 25, 2023, and the last day of any
extended limitations period was July 24, 2023. As such,
unlike the plaintiff in Sparks, the Johnsons failed to timely
commence an action within the statute of limitations. Because
the amended complaint demonstrated on its face that it was
32 See, Sparks, supra note 10; Babbitt, supra note 14; Reid, supra note 14.
See, also, Kelly v. Saint Francis Med. Ctr., 295 Neb. 650, 889 N.W.2d 613
(2017) (holding initial complaint filed on behalf of estate by nonlawyer
was legal nullity so amended complaint filed by counsel could not relate
back).

- 482 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
time barred and the relation back statute does not apply, the
district court correctly granted the special administrator’s
motion to dismiss. 33
4. Revivor Statutes Inapplicable
In their final assignment of error, the Johnsons contend that
the district court abused its discretion in vacating the order of
revivor. We find no abuse of discretion and instead agree with
the district court’s rationale.
[7] The district court relied on the following general rule:
No question of revivor is presented where there has
been no action. A statute which provides only for revival,
after the death of either party, of an action brought before
death applies only to an action which has been actually
instituted before, and is pending at, the time of death,
and it does not authorize the bringing of an action after
the death of a person who would have been a party. A
proceeding cannot be revived where it was dead from its
inception by reason of the fact that the nominal relator or
petitioner was not living when it was instituted. 34
The Nebraska statutes governing revivor and substitution
are consistent with this general rule and authorize revivor and
substitution when a party to a pending action dies. 35 That did
not occur here. There was no action pending against Zurini
when he died; rather, it is undisputed that Zurini was already
deceased when the Johnsons filed their original complaint.
On the facts of this case, Nebraska’s revivor and substitu-
tion statutes are simply inapplicable. The district court did
not abuse its discretion in vacating its order of revivor and
substitution, and the Johnsons’ arguments to the contrary have
no merit.
33 See Schuemann, supra note 7.
34 1 C.J.S. Abatement and Revival § 176 at 207 (2016).
35 See, e.g., § 25-1405 (authorizing revivor “[w]here one of the parties to
an action dies . . . before the judgment”); § 25-322 (allowing substitution
“[i]n the case of the death or other disability of a party”).

- 483 -
Nebraska Supreme Court Advance Sheets
318 Nebraska Reports
JOHNSON v. ANTONIUTTI
Cite as 318 Neb. 465
V. CONCLUSION
Because the only named defendant was deceased when
the original complaint was filed, the district court correctly
determined that the complaint was a legal nullity and failed
to validly commence an action. And although the Johnsons’
amended complaint was filed against the duly appointed spe-
cial administrator and thus commenced an action against the
decedent’s estate, the amended complaint was filed after the
applicable limitations period had expired and the relation back
statute does not apply. Therefore, the amended complaint was
properly dismissed as time barred on its face. And finally,
because the revivor and substitution statutes are inapplicable
on the facts of this case, the district court did not abuse its
discretion in vacating the order of revivor and substitution.
The judgment of the district court is affirmed.
Affirmed.