In re Estate of Larson

I
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/22/2021 09:08 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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         Nebraska Supreme Court Advance Sheets
                  308 Nebraska Reports
                    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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          Nebraska Supreme Court Advance Sheets
                   308 Nebraska Reports
                     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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         Nebraska Supreme Court Advance Sheets
                  308 Nebraska Reports
                    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
                  308 Nebraska Reports
                   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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         Nebraska Supreme Court Advance Sheets
                  308 Nebraska Reports
                    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.

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