In re Estate of Beltran , 310 Neb. 174 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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IN RE ESTATE OF BELTRAN
Cite as 310 Neb. 174In re Estate of Armengol
Beltran, deceased.
Mario Beltran, appellant, v. Marina
Beltran-Barrett, appellee.
___ N.W.2d ___
Filed September 24, 2021. No. S-20-691.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments: Appeal and Error. When reviewing questions of law,
an appellate court resolves the questions independently of the lower
court’s conclusions.
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. Decedents’ Estates: Final Orders: Appeal and Error. In probate
proceedings, an appellate court applies the rubric of Neb. Rev. Stat.
§ 25-1902 (Cum. Supp. 2020) to determine whether an order is final.
The relevant questions are whether the order was made during a special
proceeding and affected a substantial right.
5. Decedents’ Estates: Appeal and Error. Appellate courts have held that
a proceeding under the Nebraska Probate Code is a special proceeding.
6. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
7. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as by diminishing
a claim or defense that was available to an appellant before the order
from which an appeal is taken.
8. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
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IN RE ESTATE OF BELTRAN
Cite as 310 Neb. 1749. ____. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum. Supp.
2020) include those legal rights that a party is entitled to enforce
or defend.
10. Final Orders: Appeal and Error. A substantial right under Neb. Rev.
Stat. § 25-1902 (Cum. Supp. 2020) is not affected when that right can
be effectively vindicated in an appeal from the final judgment.
11. Pretrial Procedure: Final Orders: Appeal and Error. Discovery
orders are not generally subject to interlocutory appeals because the
underlying litigation is ongoing and the discovery order is not consid-
ered final. However, if the discovery order affects a substantial right and
was made in a special proceeding, it is appealable.
12. Decedents’ Estates: Final Orders. A consideration regarding the final-
ity of orders in probate cases is whether the order ended a discrete—that
is, separate and distinct—phase of the proceedings.
Appeal from the County Court for Lancaster County: Holly
J. Parsley, Judge. Appeal dismissed.
J.L. Spray and Andrew R. Spader, of Mattson Ricketts Law
Firm, for appellant.
Karin L. Walton, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
In this probate case, Mario Beltran’s “Verified Petition for
Instruction” referencing Neb. Rev. Stat. § 30-402 (Reissue
2016) was denied. He appeals. The issues on appeal are, first,
whether the order denying the petition was final and appealable
and if so, second, whether the probate court erred in denying
Mario’s petition. We dismiss Mario’s appeal for the lack of a
final, appealable order.
BACKGROUND
Armengol Beltran was married to Rosa Beltran. The couple
had three children: Mario, Marina Beltran-Barrett (Marina),
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IN RE ESTATE OF BELTRAN
Cite as 310 Neb. 174and Madeline Beltran. Rosa died in 2004, and Armengol died
in November 2016.
A probate estate was opened following Armengol’s death.
The record indicates that this probate has been contentious,
with Mario and Armengol’s longtime girlfriend on one side and
Marina and her husband, Bruce Barrett (Bruce), on the other.
Madeline lives in California and nominally supports Mario’s
positions in this litigation.
Marina was listed either as a joint account holder or as
a payable on death payee for many of Armengol’s finan-
cial accounts. In addition, Rosa and Armengol had loaned
Marina and Bruce money on several occasions. Mario believes
that Marina transferred money from Armengol’s accounts and
that she and Bruce failed to pay back loans owed to Rosa
and Armengol.
In an attempt to further investigate his allegations, in January
2019, Mario served Bruce with a deposition duces tecum
requesting that Bruce produce his tax returns since 1980. Bruce
appeared for the deposition, but he declined to produce the
requested tax returns. Mario filed a motion to compel Bruce
to provide those documents, which motion was denied on
June 21.
Mario then filed a “Verified Petition for Instruction,” argu-
ing that “it is impossible to determine the liabilities and inven-
tory of the estate” without an order of the court “directing the
personal representative to investigate the claims set forth [in
Mario’s petition] and requiring Marina . . . to appear before the
court pursuant to . . . § 30-402 . . . and account for her actions
in the assets of the estate and the estate of [Rosa].” Section
30-402 provides in relevant part:
If a personal representative, heir, devisee, creditor,
or other person interested in the estate of any deceased
person or a conservator or guardian for a ward complains
to the judge of the county court, upon an application
under oath given on information and belief, that . . . any
person may have concealed, embezzled, carried away,
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IN RE ESTATE OF BELTRAN
Cite as 310 Neb. 174or disposed of any money or personal property of the
deceased or the ward . . . or . . . such person may have
information or knowledge withheld by the respondent
from the personal representative, conservator, or guardian
and needed by the personal representative, conservator, or
guardian for the recovery of any property by suit or other-
wise, the judge may cite such person to appear before the
court of probate. Any personal representative, heir, devi-
see, creditor, conservator, guardian, or other person inter-
ested in the estate of such deceased person or the ward
may examine such person under oath upon the matter of
such complaint or direct interrogatories to him or her.
A hearing was held on Mario’s petition. The only witness
called at that hearing was the personal representative of the
estate. The probate court denied Mario’s petition, noting that it
neither conforms to the type of request that can be granted
pursuant to Neb. Rev. Stat. § 30-402 nor the procedure
set forth [pursuant to either § 30-402 or Neb. Rev. Stat.
§ 30-2465 (Reissue 2016)]. . . .
....
. . . The court does not reach the substance of the
allegations made in the . . . [p]etition . . . because
the allegations are not properly before the court for its
consideration.
The probate court reasoned that Mario could not invoke the
jurisdiction of the court under Neb. Rev. Stat. § 30-2465
(Reissue 2016), because he was not the personal representative,
and that under § 30-402, the personal representative was not
the person Mario had sought to have cited. Finally, the pro-
bate court noted that Mario made no request to terminate the
appointment of the personal representative as allowed under
Neb. Rev. Stat. § 30-2454 (Reissue 2016).
Mario appealed. Upon routine jurisdictional review, the
Nebraska Court of Appeals ordered the parties to brief the
issue of whether the probate court’s order was final and appeal-
able. We subsequently moved the case to our docket.
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IN RE ESTATE OF BELTRAN
Cite as 310 Neb. 174ASSIGNMENTS OF ERROR
Mario assigns that the county court erred in (1) holding
that he did not comply with the procedural requirements of
§ 30-402, (2) holding that he could not petition the court to
instruct the personal representative, (3) failing to “cite and
examine Marina . . . under . . . § 30-402,” (4) failing to provide
instructions to the personal representative, and (5) denying his
motion to compel Bruce to produce documents pursuant to a
subpoena duces tecum.
STANDARD OF REVIEW
[1,2] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law. 1
When reviewing questions of law, an appellate court resolves
the questions independently of the lower court’s conclusions. 2
ANALYSIS
[3] We turn first to the jurisdictional question presented by
this appeal. 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. 3 Our record shows that the
county court has not entered a final judgment in this case.
Thus, our jurisdiction depends on whether Mario has appealed
from a final order.
[4,5] In probate proceedings, we apply the rubric of Neb.
Rev. Stat. § 25-1902 (Cum. Supp. 2020) to determine whether
an order is final. 4 As applied to this case, the relevant ques-
tions raised by § 25-1902 are whether the order denying
Mario’s petition for instruction was “made during a special
1
State v. A.D., 305 Neb. 154, 939 N.W.2d 484 (2020).
2
Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).
3
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. 2020).
4
See In re Estate of Gsantner, 288 Neb. 222, 846 N.W.2d 646 (2014).
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IN RE ESTATE OF BELTRAN
Cite as 310 Neb. 174proceeding” and “affect[ed] a substantial right.” We have
repeatedly said that a proceeding under the Nebraska Probate
Code is a special proceeding. 5 As such, if the order Mario
appeals from affects a substantial right, the order is final; if
not, it is not final.
[6-10] A substantial right is an essential legal right, not a
mere technical right. 6 A substantial right is affected if an order
affects the subject matter of the litigation, such as by diminish-
ing a claim or defense that was available to an appellant before
the order from which an appeal is taken. 7 It is not enough
that the right itself be substantial; the effect of the order on
that right must also be substantial. 8 Substantial rights under
§ 25-1902 include those legal rights that a party is entitled to
enforce or defend. 9 A substantial right under § 25-1902 is not
affected when that right can be effectively vindicated in an
appeal from the final judgment. 10
[11] Marina argues that the order Mario appeals from is not
final because it is an order denying discovery. We have held
that discovery orders are not generally subject to interlocutory
appeals because the underlying litigation is ongoing and the
discovery order is not considered final. 11 However, we have
also noted that if the discovery order affects a substantial right
and was made in a special proceeding, it is appealable. 12
As was the case in Furstenfeld v. Pepin, 13 the probate
court’s order here does not cite to a specific provision of the
5
See, e.g., id.; 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).
6
In re Estate of Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504 (2018).
7
In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021).
8
In re Estate of Abbott-Ochsner, supra note 6.
9
In re Estate of Larson, supra note 7.
10
In re Estate of Abbott-Ochsner, supra note 6.
11
Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (2013).
12
Id.
13Id.- 180 -
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IN RE ESTATE OF BELTRAN
Cite as 310 Neb. 174Nebraska Court Rules of Discovery in Civil Cases. But the
pred­ecessor statute to the one relied upon by Mario, § 30-402,
has been analogized to a discovery statute. We held in In re
Estate of Bloedorn 14 that the predecessor statute did not pro-
vide power to the lower court to seize or make any order dis-
posing of the property at issue, but, rather, the purpose of the
statute was purely in the nature of discovery.
And when the predecessor statute was removed from the
Nebraska Probate Code, the Legislature acted—on the recom-
mendation of judges and lawyers—to reinstate it. At that time,
the legislative history stated that the language was intended
“to provide the discovery procedure for property of a decedent
when there has been thought to have property that [the personal
representative] didn’t go after.” 15
[12] In addition to this authority, we have decided several
cases involving finality in probate orders. In doing so, we
have generally noted that a consideration regarding finality is
whether the order ended a discrete—that is, separate and dis-
tinct—phase of the proceedings.
In In re Estate of Rose, 16 a surviving spouse elected to take
her elective share of 50 percent of the augmented estate and
requested a family allowance. The probate court included cer-
tain property in the augmented estate and ordered the personal
representative to pay a monthly family allowance, but the court
did not make a final determination of the augmented estate.
We held that the probate court’s treatment of items relevant
to the calculation of the augmented estate could be effectively
considered on an appeal from the final establishment of the
augmented estate, and we noted that the determinations made
by the court were “preliminary to a complete determination of
the size of the augmented estate which was the fundamental
14
In re Estate of Bloedorn, 135 Neb. 261, 280 N.W. 908 (1938).
15
Floor Debate, L.B. 650, Judiciary Committee, 85th Leg., 2d Sess. 8643
(April 7, 1978).
16
In re Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 (2007).
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Cite as 310 Neb. 174issue before the county court.” 17 As such, the order appealed
from was not final.
We decided a case with similar facts a few months after In
re Estate of Rose. In In Re Estate of Potthoff, 18 the decedent
and his wife had been involved in divorce proceedings at the
time of the decedent’s death. Just prior to the death, the dece-
dent had executed “‘Notice[s] of Severance of Joint Tenancy’”
with respect to real and personal property he held with his
wife. 19 A question arose as to whether the severance of the joint
tenancies was effective. The court found the notices were not
effective and awarded the wife all of the property as the sole
surviving joint tenant. The decedent’s daughter appealed.
We distinguished these facts from In re Estate of Rose and
found the court’s order to be final. We reasoned that the find-
ing that the property belonged to the wife as the surviving
joint tenant
resolved the separate issue of whether [the decedent’s]
interest in the property was part of the probate estate, and
following the county court’s order, there was nothing left
to be determined on that issue. Moreover, unlike In re
Estate of Rose, the rights involved in this case cannot be
effectively considered in an appeal from the final judg-
ment in which the probate estate is finally established. It
is not uncommon for the probate of an estate to remain
open for years. If that were to be the case here, by the
time the probate estate is finally settled, the property in
question may have been disposed of or the value of the
property may be substantially reduced. 20
In 2012, we decided In re Estate of McKillip 21 and held
that an order to sell land that was part of an estate was final.
17
Id. at 495, 730 N.W.2d at 395.
18
In re Estate of Potthoff, supra note 5.
19
Id. at 829, 733 N.W.2d at 863.
20
Id. at 832, 733 N.W.2d at 865.
21
In re Estate of McKillip, supra note 5.
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Cite as 310 Neb. 174There, sisters were left parcels of land in equal shares. One
sister sought partition. The probate court granted partition and
ordered the referee to sell the land. The personal representative
appealed, and we reversed:
The county court’s order directing the referee to sell
the property would affect the right of the devisees to
receive the real estate in kind and would force them to
sell their interests in the land. The distribution of the real
estate is a discrete phase of the probate proceedings and
would finally resolve the issues in that phase of the pro-
bate of the estate. . . .
While it may have been possible for the parties to
appeal after a sale and confirmation, judicial economy, if
nothing else, requires resolution of this issue before a sale
is held. To delay review of the order of sale until after
the sale and its confirmation would be a waste of judicial
resources and would significantly delay completion of the
probate of the estate. 22
More recently, we decided In re Estate of Larson, 23 in which
the decedent’s son objected to the final accounting of his
father’s estate filed by the personal representative. The probate
court overruled the objections, but did not approve the final
accounting. The son appealed. We concluded that the discrete
phase of the estate—in this case the final accounting—had
not been completed and that thus, the order that was being
appealed from was not final.
As Marina contends, the order here is akin to one for discov-
ery. Case law and legislative history for the predecessor statute
to § 30-402 note that the purpose behind the statute was in the
nature of discovery. And, unless discovery orders otherwise
affect a substantial right—as well as occur in a special pro-
ceeding, as we have here—such orders are generally not final.
This order is no exception.
22
Id. at 374, 820 N.W.2d at 876.
23
In re Estate of Larson, supra note 7.
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Cite as 310 Neb. 174The probate court’s order, as one effectively denying discov-
ery, did not end a discrete phase of the probate proceedings.
Rather, the order simply denied Mario’s attempt to determine
the assets of the estate. But this order was interlocutory in that
the personal representative continues to determine what assets
should be included in the estate and will eventually present
an inventory of those assets to the probate court. Moreover,
unlike most of the cases discussed above, Mario’s dispute
involves money and not specific real or personal property;
thus, this dispute can be determined at a later date without risk
to the property.
That Mario purportedly requested the court to instruct the
personal representative under a statute not alleged in his peti-
tion does not affect our conclusion that the probate court’s
order was not final. To the extent that Mario could even
request such relief, that denial was also interlocutory for the
same reasons.
This opinion should not be read to hold that an order deny-
ing an application under § 30-402 could never be immediately
final and appealable. Still, we decline to speculate what cir-
cumstances might lead to such a final order. Nor do we read
the probate court’s order as forestalling another attempt by
Mario to seek relief under § 30-402.
But in this case, no substantial right of Mario’s is affected
by the probate court’s order. For that reason, we lack a final,
appealable order.
CONCLUSION
The probate court’s order denying Mario’s petition for
instruction did not affect Mario’s substantial rights and was
therefore not final. Accordingly, this court lacks appellate juris-
diction and we dismiss Mario’s appeal.
Appeal dismissed.