In re Estate of Larson , 308 Neb. 240 ( 2021 )


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  • Nebraska Supreme Court Online Library
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    03/12/2021 08:10 AM CST
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    In re Estate of Blain Larson, deceased.
    Cindy Svoboda, Personal Representative of the
    Estate of Blain Larson, deceased, appellee,
    v. Matthew Larson, appellant.
    ___ N.W.2d ___
    Filed January 22, 2021.   No. S-20-340.
    1. Jurisdiction: Appeal and Error. A jurisdictional question which does
    not involve a factual dispute is determined by an appellate court as a
    matter of law.
    2. ____: ____. Before reaching the legal issues presented for review, it is
    the duty of an appellate court to determine whether it has jurisdiction
    over the appeal.
    3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
    to acquire jurisdiction of an appeal, there must be a final judgment or
    final order entered by the tribunal from which the appeal is taken.
    4. Final Orders: Words and Phrases. A substantial right under 
    Neb. Rev. Stat. § 25-1902
     (Supp. 2019) is an essential legal right.
    5. Final Orders: Appeal and Error. A substantial right is affected 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.
    6. Final Orders. Substantial rights under 
    Neb. Rev. Stat. § 25-1902
    (Supp. 2019) include those legal rights that a party is entitled to enforce
    or defend.
    7. Final Orders: Appeal and Error. A substantial right is not affected
    when that right can be effectively vindicated in an appeal from the
    final judgment.
    Appeal from the County Court for Colfax County: Andrew
    R. Lange, Judge. Appeal dismissed.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
    for appellant.
    Jeffery T. Peetz, of Endacott, Peetz & Timmer, P.C., L.L.O.,
    for appellee.
    Miller-Lerman, Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ.
    Papik, J.
    Cindy Svoboda (Cindy), in her capacity as personal repre-
    sentative of the estate of Blain Larson, filed a formal petition
    for complete settlement of the estate. In her petition, she asked
    the county court to enter an order approving her final account-
    ing and directing that she distribute assets of the estate in
    accordance with a proposed schedule of distribution. Blain’s
    son, Matthew Larson, objected to the proposed schedule of
    distribution, and now he appeals the county court’s dismissal
    of his objection. Because the county court has not ruled on
    Cindy’s petition, however, the phase of the probate proceed-
    ings she initiated has not concluded, and Matthew has not
    appealed from a final order. Consequently, we lack jurisdic-
    tion to address Matthew’s assigned errors, and we dismiss
    his appeal.
    BACKGROUND
    Blain’s Will and Will Contest
    Proceedings.
    Blain died on February 19, 2017. Cindy and Matthew were
    the beneficiaries under Blain’s will, which nominated Cindy
    to serve as his personal representative. In March 2017, Cindy
    began informal probate proceedings in the county court and
    was appointed Blain’s personal representative. Matthew and
    his sister attempted to prevent informal probate and to obtain
    an order that Blain died intestate. They alleged that Blain did
    not have sufficient mental capacity to sign the will at the time
    of its execution and that the will was invalid on the grounds
    of undue influence, fraud, and duress. The matter went to
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    trial in the district court, and Blain’s will was determined to
    be valid.
    Cindy’s Petition to Settle Estate
    and Matthew’s Objection to
    Proposal for Distribution.
    On February 7, 2020, Cindy filed in the county court
    a “Formal Petition for Complete Settlement After Informal
    Testate Proceeding.” Cindy requested approval of previous
    distributions, fees and expenses she incurred as personal repre-
    sentative, and her final accounting. She also asked for an order
    directing distribution of the estate in accordance with the final
    accounting and a proposed schedule of distribution. Soon after-
    ward, Cindy filed a final accounting.
    On March 6, 2020, Matthew filed an objection to the pro-
    posal for distribution, citing 
    Neb. Rev. Stat. § 30-24
    ,104(b)
    (Reissue 2016) of the Nebraska Probate Code. The objection
    alleged that the schedule of distribution failed to properly
    apportion inheritance taxes. It further alleged that many of the
    expenses incurred by Cindy as personal representative were
    unnecessary and unreasonable and that estate funds should not
    be used to pay the attorney fees Cindy incurred in defending
    the will contest.
    The county court conducted a hearing on Matthew’s objec-
    tion. At the outset of the hearing, the parties and the county
    court agreed that dollar amounts pertinent to the final account-
    ing and proposed schedule of distribution were uncertain. The
    parties suggested that if the county court ruled on the legal
    issues raised in Matthew’s objection, the parties could there-
    after reach an agreement as to the appropriate distribution of
    assets. The parties then submitted evidence and argument con-
    cerning Matthew’s objection.
    County Court’s Order Dismissing
    Matthew’s Objection.
    On April 7, 2020, the county court entered an order reject-
    ing the arguments made in Matthew’s objection. The county
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    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    court determined that the attorney fees Cindy incurred as per-
    sonal representative could be paid from the estate. The county
    court also determined that Cindy properly paid certain chal-
    lenged expenses from the estate. As to inheritance taxes, the
    county court found that
    the inheritance taxes should be paid from the estate and to
    the extent the residuary estate is unavailable for payment
    of these expenses, the specific devisees in proportion to
    the share owned by Cindy . . . and Matthew . . . should be
    reduced for [valid administration expenses] and inherit­
    ance tax.
    Cindy’s Supplemental
    Final Accounting.
    On April 17, 2020, Cindy filed a supplemental final
    accounting. The document stated that Cindy “accepts opposing
    counsel’s apportionment of administration expenses, funeral
    expenses, debts, taxes and claims 0.494 to Cindy . . . and
    0.506 to Matthew.” It set forth a final distribution, with
    amounts to be paid to both Cindy and Matthew. Our record
    does not contain any order of the county court approving a
    final accounting or otherwise ruling on Cindy’s petition for
    complete settlement.
    Matthew filed a notice of appeal in which he stated his
    intention to appeal the county court’s April 7, 2020, order dis-
    missing his objection to the proposed schedule of distribution.
    ASSIGNMENTS OF ERROR
    Matthew assigns that the county court erred in various
    respects when it dismissed his objection to Cindy’s proposed
    schedule of distribution in its April 7, 2020, order.
    STANDARD OF REVIEW
    [1] A jurisdictional question which does not involve a fac-
    tual dispute is determined by an appellate court as a matter
    of law. In re Estate of Adelung, 
    306 Neb. 646
    , 
    947 N.W.2d 269
     (2020).
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    ANALYSIS
    [2] In his objection to Cindy’s proposed schedule of distri-
    bution, Matthew argued that Cindy could not use estate funds
    to pay certain expenses. On appeal, he contends the county
    court’s order rejecting those arguments was erroneous. But
    before reaching the legal issues presented for review, it is the
    duty of an appellate court to determine whether it has juris-
    diction over the appeal. In re Estate of Abbott-Ochsner, 
    299 Neb. 596
    , 
    910 N.W.2d 504
     (2018). Here, we conclude that we
    do not.
    [3] Under 
    Neb. Rev. Stat. § 25-1911
     (Reissue 2016), for an
    appellate court to acquire jurisdiction of an appeal, there must
    be a final judgment or final order entered by the tribunal from
    which the appeal is taken. In re Interest of A.A. et al., 
    307 Neb. 817
    , 
    951 N.W.2d 144
     (2020). See, also, 
    Neb. Rev. Stat. § 30-1601
     (Cum. Supp. 2018). Our record shows, and the par-
    ties agree, that the county court has not entered a final judg-
    ment in this case. Thus, our jurisdiction depends on whether
    Matthew has appealed from a final order.
    In probate proceedings, we apply the rubric of 
    Neb. Rev. Stat. § 25-1902
     (Supp. 2019) to determine whether an order
    is final. See In re Estate of Gsantner, 
    288 Neb. 222
    , 
    846 N.W.2d 646
     (2014). As applied to this case, the relevant
    question raised by § 25-1902 is whether the order dismissing
    Matthew’s objection was “made during a special proceeding”
    and “affect[ed] a substantial right.” We have repeatedly said
    that a proceeding under the Nebraska Probate Code is a special
    proceeding. See, e.g., In re Estate of Gsantner, supra; In re
    Estate of McKillip, 
    284 Neb. 367
    , 
    820 N.W.2d 868
     (2012); In
    re Estate of Potthoff, 
    273 Neb. 828
    , 
    733 N.W.2d 860
     (2007).
    If Matthew has appealed from an order that affects a substan-
    tial right, then, it is a final order and we have jurisdiction to
    review it.
    [4-7] A substantial right under § 25-1902 is an essen-
    tial legal right. Western Ethanol Co. v. Midwest Renewable
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    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    Energy, 
    305 Neb. 1
    , 
    938 N.W.2d 329
     (2020). A substantial
    right is affected 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. 
    Id.
     Substantial rights under § 25-1902 include
    those legal rights that a party is entitled to enforce or defend.
    Western Ethanol Co., supra. A substantial right is not affected
    when that right can be effectively vindicated in an appeal from
    the final judgment. In re Estate of Potthoff, 
    supra.
     As one
    commentator has observed, in the context of multifaceted spe-
    cial proceedings that are designed to administer the affairs of a
    person, an order that ends a discrete phase of the proceedings
    affects a substantial right because it finally resolves the issues
    raised in that phase. See John P. Lenich, What’s So Special
    About Special Proceedings? Making Sense of Nebraska’s Final
    Order Statute, 
    80 Neb. L. Rev. 239
     (2001).
    Probate matters are an example of such a multifaceted
    special proceeding. 
    Id.
     Therefore, in deciding whether an
    order in a probate matter affects a substantial right, we have
    considered whether the order ended a discrete phase of the
    proceedings. In In re Estate of McKillip, supra, we addressed
    the finality of an order determining that physical partition
    of real estate was not possible without great prejudice to the
    owners and ordering the referee to sell the land at public sale.
    We concluded that the order was final because the distribution
    of real estate was a discrete phase of the probate proceed-
    ings and would finally resolve the issues in that phase of the
    probate estate. We observed that postponing review would not
    serve judicial economy because it would significantly delay
    distribution of the real estate, thereby delaying completion of
    the probate of the estate. Id. See, also, In re Estate of Potthoff,
    
    supra
     (order in proceedings for computation of probate estate
    final because it completely resolved separate issue of whether
    deceased’s interest in property was part of probate estate and
    matter could not be effectively considered in appeal from
    final judgment).
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    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    In In re Estate of Rose, 
    273 Neb. 490
    , 
    730 N.W.2d 391
    (2007), on the other hand, a party sought to appeal an order
    that did not end a discrete phase of the probate proceedings.
    In In re Estate of Rose, the surviving spouse of the decedent
    filed a petition in county court electing to take her elective
    share of 50 percent of the augmented estate and requesting a
    family allowance. After a hearing, the county court ordered the
    personal representative to pay the surviving spouse a monthly
    allowance and found that certain annuity contracts were part
    of the augmented estate. The county court’s order did not,
    however, finally determine the augmented estate for purposes
    of calculating the 50-percent elective share. Instead, the order
    stated that the court would retain jurisdiction to make a fur-
    ther determination of the augmented estate. Before the county
    court made that further determination, the personal representa-
    tive appealed.
    We found that we lacked appellate jurisdiction in In re
    Estate of Rose, 
    supra.
     We observed that the county court’s
    award of a family allowance reduced the size of the aug-
    mented estate and its finding regarding the annuity contracts
    increased the size of the augmented estate, but that the overall
    size of the augmented estate had not yet been determined. We
    explained that the county court’s treatment of items relevant
    to the calculation of the augmented estate could be effectively
    considered in an appeal following the final establishment of
    the augmented estate. Because the determinations made by the
    county court were merely “preliminary to a complete determi-
    nation of the size of the augmented estate which was the fun-
    damental issue before the county court,” we held they did not
    affect a substantial right and were not appealable. 
    Id. at 495
    ,
    
    730 N.W.2d at 395
    .
    Although our opinion in In re Estate of Rose did not use
    the “discrete phase” terminology we used in In re Estate of
    McKillip, 
    284 Neb. 367
    , 
    820 N.W.2d 868
     (2012), we under-
    stand the opinions to have applied the same concepts. As
    these opinions demonstrate, an order ending a discrete phase
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    Nebraska Supreme Court Advance Sheets
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    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    of probate proceedings is appealable, but one that is merely
    preliminary to such an order is not.
    Returning to this case, the order Matthew seeks to appeal
    did not end a discrete phase of the proceedings. Following the
    will contest proceedings, Cindy administered Blain’s estate
    informally for a time before she initiated independent formal
    proceedings to close the estate by filing a petition authorized
    by 
    Neb. Rev. Stat. § 30-24
    ,116 (Reissue 2016). See 
    Neb. Rev. Stat. § 30-2407
     (Reissue 2016) (each proceeding before
    court is independent of any other proceeding involving same
    estate). Her petition requested an order approving fees and
    expenses she claimed as personal representative, approving her
    final accounting, approving distributions previously made, and
    authorizing and directing her to distribute the estate. Citing
    § 30-24,104(b), Matthew filed his objection to the schedule of
    distribution. He raised challenges to Cindy’s proposed distri-
    bution. Counsel for both parties acknowledged at the subse-
    quent hearing that the evidence presented might be sufficient
    to address only the legal issues raised by Matthew’s objec-
    tion, and not the amounts that should be included in the final
    accounting and proposed distribution. After the hearing, the
    county court entered an order that ruled on those legal issues
    and dismissed Matthew’s objection, but it did not enter an
    order disposing of Cindy’s petition.
    The fact that the court did not dispose of Cindy’s petition
    in its order dismissing Matthew’s objection became especially
    apparent when, following that order, Cindy filed a supplemen-
    tal final accounting. No order of approval or complete settle-
    ment by the county court followed, and Matthew appealed.
    Statements by counsel for both parties at oral argument
    also support the conclusion that the phase of the proceed-
    ings addressing Cindy’s formal petition was not over when
    Matthew filed his appeal. Counsel for Matthew conceded
    that the county court’s order dismissing his objection gave
    guidance on issues of law but did not address what each
    party would receive in “dollars and cents.” He contended
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    IN RE ESTATE OF LARSON
    Cite as 
    308 Neb. 240
    that the county court’s ruling on the legal issues surrounding
    inheritance taxes was somewhat unclear and acknowledged
    that the issue would be clarified by an order approving a final
    accounting. Similarly, Cindy’s counsel suggested that if this
    court considered the merits of Matthew’s legal arguments, the
    unresolved schedule of distribution is a matter that could be
    addressed on remand.
    As these statements show, the county court’s order, much
    like the order we found unappealable in In re Estate of Rose,
    
    273 Neb. 490
    , 
    730 N.W.2d 391
     (2007), decided only some
    issues relevant to the phase of the proceedings before the court.
    That phase would not be completed, however, until the court
    entered an order disposing of Cindy’s petition. Because more
    remained to be done to end that phase, we conclude that the
    order did not affect a substantial right and that we therefore
    lack jurisdiction to consider it. To hold otherwise could invite
    the very outcomes our final order doctrine is designed to avoid:
    piecemeal review, chaos in trial procedure, and a succession of
    appeals granted in the same case to secure advisory opinions
    to govern further actions of the trial court. See In re Estate of
    Abbott-Ochsner, 
    299 Neb. 596
    , 
    910 N.W.2d 504
     (2018).
    CONCLUSION
    For reasons we have explained, Matthew has not appealed
    from a final order. Accordingly, we lack jurisdiction and dis-
    miss his appeal.
    Appeal dismissed.
    Heavican, C.J., not participating.