In re Estate of Gsantner ( 2014 )

Nebraska Advance Sheets
222 288 NEBRASKA REPORTS
In re Estate of Jack H. Gsantner, deceased.
Ryan Gray, Personal R epresentative of the Estate
of Jack H. Gsantner, deceased, appellant, v.
K evin J. Gustafson et al., appellees.
___ N.W.2d ___
Filed May 23, 2014. No. S-13-633.
1. Judgments: Jurisdiction. Jurisdictional questions that do not involve a factual
dispute present questions of law.
2. Decedents’ Estates: Appeal and Error. Appeals of matters arising under the
Nebraska Probate Code are reviewed for error on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
6. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders that an appellate court may review are (1) an
order that affects a substantial right and that determines the action and prevents
a judgment, (2) an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right made on summary
application in an action after a judgment is rendered.
7. Decedents’ Estates. A proceeding under the Nebraska Probate Code is a spe-
cial proceeding.
8. Final Orders: Words and Phrases. A substantial right under Neb. Rev. Stat.
§ 25-1902 (Reissue 2008) is an essential legal right.
9. Final Orders: Appeal and Error. A substantial right is involved 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.
10. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Reissue 2008)
include those legal rights that a party is entitled to enforce or defend.
11. Decedents’ Estates: Appeal and Error. In reviewing the judgment awarded by
the probate court in a law action, an appellate court does not reweigh evidence,
but considers the evidence in the light most favorable to the successful party and
resolves evidentiary conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence.
Nebraska Advance Sheets
IN RE ESTATE OF GSANTNER 223
Cite as 288 Neb. 222Appeal from the County Court for Douglas County:
Lawrence E. Barrett, Judge. Affirmed.
Andrew C. Sigerson and Lyndsay N. Bonwell, of Andrew C.
Sigerson, P.C., L.L.O., for appellant.
Dean F. Suing and David A. Castello, of Katskee, Henatsch
& Suing, for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Wright, J.
NATURE OF CASE
Ryan Gray, personal representative of the estate of Jack H.
Gsantner, appeals from the orders of the county court award-
ing him a fee of $25,000 and overruling his motion to alter or
amend the award. Finding no error on the record, we affirm the
award of a personal representative fee of $25,000.
SCOPE OF REVIEW
[1] Jurisdictional questions that do not involve a factual
dispute present questions of law. Pinnacle Enters. v. City of
Papillion, 286 Neb. 322, 836 N.W.2d 588 (2013).
[2,3] Appeals of matters arising under the Nebraska Probate
Code are reviewed for error on the record. See In re Estate of
Failla, 278 Neb. 770, 773 N.W.2d 793 (2009). When review-
ing a judgment for errors appearing on the record, an appellate
court’s inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. Krings v. Garfield Cty. Bd. of
Equal., 286 Neb. 352, 835 N.W.2d 750 (2013).
FACTS
Gsantner died in February 2012. He was survived by neither
a spouse nor children. His funeral services were provided by
an Omaha, Nebraska, mortuary, of which Gray is the manag-
ing officer. Several months after the funeral, the estate owed
$3,120.55 in funeral expenses.
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As a creditor of Gsantner’s estate, the mortuary sought
appointment of Gray as personal representative in intestacy.
In April 2012, he was informally appointed to serve in that
capacity. In November, the county court entered an order of
intestacy and formally appointed Gray as personal representa-
tive of the estate.
At the time of Gray’s informal appointment, the value of
the estate was estimated to be $127,400. Following Gray’s
informal appointment, he discovered the estate had extensive
assets that were previously unknown to him. Gray also learned
that Gsantner had executed a will. The final value of the estate
was $5,180,514.23.
In December 2012, Gray filed a petition for formal probate
of the will, determination of heirs, tentative determination of
the inheritance tax, partial distribution of the estate, and pay-
ment of attorney fees and the personal representative fee. He
submitted a request for fees in the amount of 5 percent of the
gross estate, to be distributed equally between attorney fees
and the personal representative fee. Five heirs of the estate
(appellees) objected to Gray’s request for fees as “excessive
and unwarranted” under Neb. Rev. Stat. § 30-2480 (Reissue
2008). At appellees’ request, the county court scheduled an
evidentiary hearing to determine reasonable fees.
After the evidentiary hearing was scheduled but before it
took place, appellees recommended a partial award of the per-
sonal representative fee in the amount of $17,500, “without
prejudice” to the county court’s final determination regarding
the fee. The court granted appellees’ request and awarded Gray
a “partial fee” of $17,500.
At the evidentiary hearing, Gray and appellees adduced
evidence to support a wide range of personal representative
fees. The county court ultimately received all the exhibits
into evidence.
In support of Gray’s request for a personal representative fee
in the amount of 21⁄2 percent of the estate, Gray offered affi-
davits from five attorneys with experience in probate matters.
These attorneys commented on (1) the size and complexity of
Gsantner’s estate, (2) the amount of work Gray had expended
on his duties as personal representative (over 400 hours),
Nebraska Advance Sheets
IN RE ESTATE OF GSANTNER 225
Cite as 288 Neb. 222(3) the opportunity costs Gray had forgone in his regular
employment while serving as personal representative, and (4)
the quality and skill of Gray’s work. Based on these facts, the
various attorneys stated that a reasonable fee for Gray would
range between 1 and 3 percent of the estate or between $150
and $225 per hour.
One of the affidavits submitted by Gray was from Thomas
B. Thomsen, the attorney representing Gsantner’s estate.
Thomsen opined that Gray’s performance was comparable to
that of “any large bank trust department” and “any attorney
[Thomsen had] ever worked with as personal representative”
and that Gray “earned the maximum fee to be paid to a per-
sonal representative under Nebraska law.” Another one of the
attorneys providing an affidavit in support of Gray’s posi-
tion stated that Gray’s “standard of work and detail in this
estate approache[d] the level of professional fiduciary services
and . . . merit[ed] fees approaching the level of a profes-
sional fiduciary.”
Appellees offered the affidavit of a sixth Nebraska attorney,
who opined, based on his experience, that a personal repre-
sentative fee constituting 21⁄2 percent of the gross estate was
“excessive” and “would not be reasonable compensation as
contemplated by Neb. Rev. Stat. §30-2480.” This attorney also
stated that he would expect a court to award a fee of $15 to $25
per hour to a lay personal representative with no preexisting
fee arrangement with the decedent.
The county court determined that Gray was entitled to a
personal representative fee in the amount of $25,000. The court
noted that Gray had “maintained a log that recorded his mile-
age and hours expended on behalf of the estate,” that this log
was not offered into evidence, and that the “only indication in
the other affidavits was that . . . Gray had spent approximately
400 hours in his duties.” As compensation for those 400 hours,
the award of $25,000 equated to $62.50 per hour.
On May 8, 2013, Gray filed a “motion to Reconsider” pursu-
ant to Neb. Rev. Stat. § 25-1329 (Reissue 2008). On June 5, he
filed an “Amended Motion to Reconsider.” Because Gray filed
each of these motions pursuant to § 25-1329, they functioned
as motions to alter or amend.
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In the amended motion, Gray alleged that at a prior hear-
ing, he had attempted “to submit a log, or statement of the
Personal Representative’s time and efforts expended,” and
that he had only recently learned the documentation had not
been received as an exhibit. At the hearing on Gray’s motion,
he asked the county court for “the ability to enter the log
book” so that the award of fees could be reconsidered in light
of that evidence.
The county court orally overruled the motion to reconsider
at the conclusion of the hearing. On July 5, 2013, the court
entered an order consistent with that ruling, which stated in its
entirety: “This matter came on for hearing on June 21, 2013[,]
on the Personal Representative’s Motion to Reconsider. Motion
to Reconsider is overruled.”
Gray timely appeals. Pursuant to our statutory author-
ity to regulate the dockets of the appellate courts of this
state, we moved the case to our docket. See Neb. Rev. Stat.
§ 24-1106(3) (Reissue 2008). Appellees moved for summary
dismissal for lack of jurisdiction, claiming that the order
awarding personal representative fees was not a final order.
We overruled the motion and allowed the case to proceed to
oral argument.
ASSIGNMENT OF ERROR
Gray assigns that the county court erred in finding that the
personal representative fee awarded to him was reasonable
under § 30-2480.
ANALYSIS
Jurisdiction
[4] We first address whether the order awarding the per-
sonal representative fee was a final order. Before reaching the
legal issues presented for review, it is the duty of an appellate
court to determine whether it has jurisdiction over the matter
before it. Becerra v. United Parcel Service, 284 Neb. 414, 822
N.W.2d 327 (2012).
[5,6] For an appellate court to acquire jurisdiction of an
appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is
Nebraska Advance Sheets
IN RE ESTATE OF GSANTNER 227
Cite as 288 Neb. 222without jurisdiction to entertain appeals from nonfinal orders.
Id. Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the three
types of final orders that an appellate court may review are
(1) an order that affects a substantial right and that determines
the action and prevents a judgment, (2) an order that affects a
substantial right made during a special proceeding, and (3) an
order that affects a substantial right made on summary applica-
tion in an action after a judgment is rendered. In re Estate of
McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012).
We have not previously considered whether an order award-
ing a personal representative fee is a final, appealable order. In
In re Estate of Lehman, 135 Neb. 592, 283 N.W. 199 (1939),
we addressed the finality of orders awarding executors’ fees.
The orders in that case were for “partial distribution and allow-
ances of executors’ fees.” See id. at 601, 283 N.W. at 203.
The first awarded $1,400 in partial fees to each executor for
his or her actions from April 30, 1928, to October 31, 1931.
The second ordered $4,000 in partial fees for the executors’
actions from October 31, 1931, to October 31, 1935. Each
order was a partial fee and did not constitute a final award of
executors’ fees. On these facts, we held that the orders award-
ing partial executors’ fees were “interlocutory orders and not
final orders.” Id. Our holding was specifically limited to “such
orders sought to be appealed from” in that case. Id. Therefore,
we did not create a bright-line rule that would be applicable in
the case at bar. We did not make our determination of final-
ity based upon § 25-1902, which, at that time, was codified at
Comp. Stat. § 20-1902 (1929).
It is now standard practice for an appellate court to consider
the finality of an order entered in probate proceedings under
the rubric of § 25-1902. See, e.g., In re Estate of McKillip,
supra; In re Estate of Muncillo, 280 Neb. 669, 789 N.W.2d 37(2010); In re Estate of Potthoff, 273 Neb. 828, 733 N.W.2d 860(2007); In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23(2000); In re Estate of Snover, 233 Neb. 198, 443 N.W.2d 894(1989). Thus, we employ § 25-1902 to determine whether the
order awarding Gray a personal representative fee of $25,000
was a final order.
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[7] The first and third categories of final orders in § 25-1902
are not at issue in the case at bar, so the question is whether
the order awarding a personal representative fee of $25,000
affected a substantial right and was made in a special proceed-
ing. A proceeding under the Nebraska Probate Code is a special
proceeding. See In re Estate of McKillip, supra. The question
is whether the order affected a substantial right.
[8-10] A substantial right under § 25-1902 is an essential
legal right. In re Estate of McKillip, supra. A substantial right
is involved if an order “affects the subject matter of the litiga-
tion, such as diminishing a claim or defense that was avail-
able to an appellant before the order from which an appeal is
taken.” Id. at 373, 820 N.W.2d at 875. Substantial rights under
§ 25-1902 include those legal rights that a party is entitled to
enforce or defend. In re Estate of McKillip, supra.
Gray argues that the order awarding a personal representative
fee of $25,000 affected a substantial right, because as personal
representative, he had a substantial legal right to reasonable
compensation under § 30-2480. We agree. The order affected a
substantial right because under the facts of this case, the order
finally determined Gray’s claim for reasonable compensation.
Under § 30-2480, a personal representative is “entitled to rea-
sonable compensation for his services.” Gray was formally
appointed as personal representative of Gsantner’s estate and
was entitled to “reasonable compensation.” It was the award
of $25,000 that determined the amount of compensation Gray
was to receive.
At the time of the county court’s order awarding a personal
representative fee of $25,000, the estate had been partially
distributed and Gray continued to serve as personal repre­
sentative. Nonetheless, the court awarded Gray the entire
amount of compensation to which the court found he was
entitled for his services. Whereas the court’s previous award
of $17,500 noted that the award was a partial fee, the order
in question did not include any language that would indicate
the award was subject to later revision or augmentation. When
Gray brought his application for fees, he had not requested
hourly compensation, which would change in the event of fur-
ther work, but a percentage of the estate. Also, the award was
Nebraska Advance Sheets
IN RE ESTATE OF GSANTNER 229
Cite as 288 Neb. 222made after the court conducted a special evidentiary hearing
on the issue of fees. Thus, we conclude that the court’s order
awarding a personal representative fee of $25,000 was a final
order that determined what constituted reasonable compensa-
tion for Gray’s services.
In setting the amount of reasonable compensation at $25,000,
the order disposed of Gray’s claim under § 30-2480. The order
awarded the only personal representative fee Gray was going
to receive. The order was dispositive of Gray’s claim for rea-
sonable compensation under § 30-2480 and thus affected a
substantial right.
Appellees argue that under § 25-1902, it is not sufficient that
the order awarding a personal representative fee of $25,000
affected a substantial right of Gray. They assert that in order to
be final, the order must affect a substantial right of the estate,
not a substantial right of the personal representative. We dis-
agree. The only support appellees provide for this proposition
is In re Adoption of Amea R., 282 Neb. 751, 807 N.W.2d 736(2011), which is not applicable to the case at bar.
In re Adoption of Amea R., supra, considered whether a
son could appeal from an order prohibiting him from par-
ticipating in adoption proceedings initiated by his father. The
son had sought to intervene in the proceedings not in his own
behalf, but in a representative capacity as his father’s “next
friend.” Id. at 753, 807 N.W.2d at 739. Because the son did
not have a direct interest in the adoption proceedings, we
concluded that his right to participate was vicarious to that of
his father and, consequently, was not a substantial right under
§ 25-1902.
Appellees compare Gray’s right to reasonable compen-
sation to those of the son in In re Adoption of Amea R.,
supra. According to appellees’ motion for summary dismissal,
Gray’s right is “vicarious and ancillary to the rights of the
underlying estate” and is not a substantial right for purposes
of § 25-1902.
But appellees’ reliance on In re Adoption of Amea R.,
supra, is clearly misplaced. The relationship between Gray
and Gsantner’s estate is not analogous to that between the son
and his father in that case. As a properly appointed personal
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representative, Gray had a right to reasonable compensation
under § 30-2480. That right existed independently of the rights
of the estate. It was not dependent upon the rights of another
party, as in In re Adoption of Amea R., supra. Additionally,
because of the right bestowed by § 30-2480, Gray had a direct
interest in the proceedings giving rise to the order from which
he now appeals.
Because Gray’s right to reasonable compensation was not
vicarious, In re Adoption of Amea R., supra, provides no sup-
port for appellees’ argument that under § 25-1902, a final order
does not exist unless a substantial right of the underlying estate
is affected. The county court’s order awarding a personal repre-
sentative fee of $25,000 determined the total amount of Gray’s
compensation, and as such, it affected Gray’s substantial right
and was a final order. See § 25-1902. Thus, we have jurisdic-
tion to consider Gray’s appeal from that order.
Amount of P ersonal
R epresentative Fee
Gray assigns that the county court erred in awarding him
a personal representative fee of only $25,000. We review the
award for error appearing on the record. See In re Estate of
Failla, 278 Neb. 770, 773 N.W.2d 793 (2009). As such, our
inquiry is “whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable.” See Krings v. Garfield Cty. Bd. of
Equal., 286 Neb. 352, 356, 835 N.W.2d 750, 753 (2013).
Under § 30-2480, Gray was entitled to “reasonable compen-
sation.” The term “reasonable compensation” is not defined in
§ 30-2480. However, Neb. Rev. Stat. § 30-2482(2) (Reissue
2008) provides a list of factors “to be considered as guides in
determining the reasonableness of a fee” awarded to a personal
representative. These factors are provided to aid in reviewing
a personal representative fee when it is before a court on the
petition for review of an interested person. See § 30-2482. The
factors to be considered are as follows:
(a) The time and labor required, the novelty and dif-
ficulty of the questions involved, and the skill requisite to
perform the service properly;
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IN RE ESTATE OF GSANTNER 231
Cite as 288 Neb. 222(b) The likelihood, if apparent to the personal repre-
sentative, that the acceptance of the particular employ-
ment will preclude the person employed from other
employment;
(c) The fee customarily charged in the locality for simi-
lar services;
(d) The amount involved and the results obtained;
(e) The time limitations imposed by the personal repre-
sentative or by the circumstances;
(f) The nature and length of the relationship between
the personal representative and the person performing the
services; and
(g) The experience, reputation, and ability of the per-
son performing the services.
§ 30-2482(2). These factors provide an indication of what facts
the Legislature intended to be considered when determining a
reasonable fee.
The affidavits adduced by Gray and appellees provided
information relevant to many of these factors. The affidavits
presented by Gray opined that Gsantner’s estate was complex
and required extraordinary amounts of work by Gray, which
he performed competently, professionally, and at great oppor-
tunity cost. These affidavits stated that a customary personal
representative fee was between 1 and 3 percent of the estate or
between $150 and $225 per hour.
In contrast, the affidavit proffered by appellees described
the estate as “fairly ‘liquid’” and emphasized that Gray was
a “lay” personal representative. According to appellees’ evi-
dence, a lay personal representative typically received between
$15 and $25 per hour. After weighing this evidence, the
county court determined that Gray was entitled to $25,000 for
his services.
[11] Gray asks us to reverse the award of $25,000, because
the award disregards the evidence he submitted. In doing so,
he asks us to reweigh the evidence. We decline to do so. In
reviewing the judgment awarded by the probate court in a
law action, an appellate court does not reweigh evidence, but
considers the evidence in the light most favorable to the suc-
cessful party and resolves evidentiary conflicts in favor of the
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232 288 NEBRASKA REPORTS
successful party, who is entitled to every reasonable infer-
ence deducible from the evidence. In re Trust of Hrnicek, 280
Neb. 898, 792 N.W.2d 143 (2010). When viewed in the light
most favorable to appellees, the evidence supports the county
court’s award of a $25,000 personal representative fee.
The county court was presented with a wide range of evi-
dence on the complexity of Gsantner’s estate and what level
of compensation would be customary for Gray’s work, which
are factors to be considered under § 30-2482. Indeed, the facts
were far from “undisputed,” as Gray contends. See brief for
appellant at 21. Although Gray’s evidence indicated that the
estate was complex, that the quality of his work was equal
to that of a large bank trust department, and that his work
deserved much greater compensation, other evidence was to
the contrary. Appellees’ evidence showed that the estate was
not complex, Gray’s work was not out of the ordinary, and an
award of $25,000 was reasonable given the customary compen-
sation for such work.
It was within the province of the county court to decide
upon which evidence it would rely. It was also within the
court’s discretion to weigh the factors that were relevant
to its determination of reasonableness. Since appellees’ evi-
dence supported the award of a personal representative fee
of $25,000, we cannot say that this award was contrary
to the law. Neither can we say that it was arbitrary, capri-
cious, or unreasonable. Therefore, we affirm the order of the
county court.
CONCLUSION
For the foregoing reasons, we conclude that we have juris-
diction over this appeal and we affirm the award of a personal
representative fee of $25,000.
Affirmed.