In re Estate of Scaletta

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www.nebraska.gov/apps-courts-epub/
12/16/2022 08:04 AM CST
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953In re Estate of Filadelfo (Jack) Scaletta, deceased.
Carl Scaletta, Jr., et al., appellees,
v. Carl Scaletta, Sr., appellant.
___ N.W.2d ___
Filed November 18, 2022. No. S-22-115.
1. Jurisdiction. The question of jurisdiction is a question of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
4. 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.
5. Final Orders: Words and Phrases. To be final, an order must dispose
of the whole merits of the case. When no further action of the court is
required to dispose of a pending cause, the order is final.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Riedmann and Welch, Judges, on
appeal thereto from the County Court for Douglas County,
Jeffrey L. Marcuzzo, County Court Judge. Judgment of
Court of Appeals affirmed.
M. H. Weinberg, of Weinberg & Weinberg, P.C., for appellant.
Dennis P. Lee, of Lee Law Office, for appellee Carl
Scaletta, Jr.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953Miller-Lerman, J.
NATURE OF CASE
Carl Scaletta, Sr. (Carl Sr.), appealed to the Nebraska Court
of Appeals from the order of the Douglas County Court that
ruled on his petition for trust administration. The Court of
Appeals dismissed the appeal for lack of jurisdiction pursuant
to Neb. Ct. R. App. P. § 2-107(A)(1) (rev. 2022). We granted
Carl Sr.’s petition for further review. Based on our reasoning
set forth below, we agree with the Court of Appeals’ conclu-
sion that the order from which Carl Sr. attempts to appeal was
not a final order, and we therefore affirm the dismissal of the
appeal for lack of jurisdiction.
STATEMENT OF FACTS
Filadelfo Scaletta, also known as Jack Scaletta (Jack), died
in February 2021. Jack left a will that named his nephew,
Carl Scaletta, Jr. (Carl Jr.), as personal representative. Letters
of personal representative evidencing Carl Jr.’s appointment
in the Douglas County probate division, estate case No.
PR21-1539, are found in the record. The provisions of the
will transferred most of Jack’s assets to the Filadelfo (Jack)
Scaletta Revocable Living Family Trust (the Trust). Although
created on the same day as the will, June 26, 2020, the Trust’s
existence was separate from the will. Jack named Carl Jr. as
trustee of the Trust, and he also named Carl Jr. as his agent
pursuant to a power of attorney. Among the beneficiaries of
the Trust were Carl Jr. and Carl Sr., who is Carl Jr.’s father
and Jack’s brother.
On September 7, 2021, Carl Sr. filed a “Petition for Trust
Administration Proceeding” with regard to the Trust. Carl
Sr. stated that among the reasons he wished to initiate a trust
administration action was the fact that after Jack’s death, Carl
Jr. had transferred to the Trust two bank accounts that Carl Sr.
asserted were designated as payable on death (POD) to him.
Carl Sr. further stated that he was “requesting records and
an accounting with regard to the handling of as[s]ets placed
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953in the FILADELFO (JACK) SCALETTA TRUST and then
handled thereafter [and Carl Sr. was] requesting a declara-
tory judgment as to the proper disposition of assets pursuant
to Neb. Rev. Stat. [§] 25-21,152 [(Reissue 2016)].” We note
that the petition for trust administration was filed in the estate
case, No. PR21-1539.
In his response to Carl Sr.’s petition, Carl Jr. conceded
that the two accounts should have passed to Carl Sr. based
on the POD designation and should not have been transferred
to the Trust after Jack’s death. Carl Jr. therefore requested that
the court grant the relief requested by Carl Sr. with respect
to those two accounts. But Carl Jr. stated in the response
that after Carl Sr. had filed his petition, Carl Sr. had identi-
fied four additional accounts that Carl Sr. asserted Carl Jr.
had improperly transferred to the Trust before Jack died.
Carl Jr. asserted that the transfers prior to Jack’s death were
authorized and that therefore, the POD designations on those
accounts were no longer in effect on the date Jack died. Carl
Jr. requested that the court deny Carl Sr.’s requested relief
with respect to all accounts other than the two that were trans-
ferred after Jack’s death.
The county court held a hearing on the issues raised by the
pleadings regarding, inter alia, the various bank accounts trans-
ferred to the Trust before and after Jack’s death. On February
18, 2022, the county court filed an order on what it described
as Carl Sr.’s “Petition for Trust Administration and Request
for Declaratory Judgment.” The court first addressed how the
property of the Trust was to be divided among the benefici­
aries under the terms of the Trust. Certain specified real prop-
erty was to be divided between Carl Sr. and Carl Jr., and the
remaining unspecified property was to be divided among three
beneficiaries with Carl Jr. receiving 50 percent and Jack’s sis-
ter and Carl Sr. each receiving 25 percent.
The court then addressed the four bank accounts that had
been transferred to the Trust in June and July 2020, prior
to Jack’s death. The court determined that because those
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953accounts had been transferred prior to Jack’s death, the POD
designations did not prevent the accounts from being properly
transferred to the Trust. The county court further determined
that the transfers were properly made by Carl Jr. pursuant
to his authority under the power of attorney and received as
trustee of the Trust and that therefore, those assets should
remain in the Trust and be divided among the beneficiaries
according to the provisions of the Trust.
The court then addressed the two bank accounts that had
been transferred to the Trust in March 2021, after Jack’s
death. The court found in its order that each account had been
transferred to the Trust by Carl Jr. The court noted that each
account named Carl Sr. as the POD designee, and the court
stated that at the moment of Jack’s death, the POD designa-
tions went into effect and the accounts passed to Carl Sr. The
court determined that the transfer of those two accounts to the
Trust after Jack’s death was “without authorization or proper
authority” and that therefore, the two accounts should be dis-
tributed to Carl Sr.
Based on these findings and determinations, the county
court ordered that Carl Sr.’s motion for declaratory judg-
ment with regard to the four accounts transferred prior to
Jack’s death was denied and that the accounts were properly
assets of the Trust. The county court further ordered that Carl
Sr.’s motion for declaratory judgment with regard to the two
accounts transferred after Jack’s death was granted, and the
court ordered Carl Jr. as trustee to distribute the balance of
the accounts plus interest from the Trust to Carl Sr. The county
court finally ordered that “the Trustee of the Revocable Living
Family Trust, Carl . . . Jr., is to provide a complete Accounting
to all interested parties no later than March 1, 2022, unless
previously submitted and/or accepted by the parties.”
Carl Sr. filed a notice of appeal on February 22, 2022.
Before Carl Sr. filed a brief of appellant, the Court of Appeals
dismissed the appeal with the following minute entry: “Appeal
dismissed. See Neb. Ct. R. App. P. § 2-107(A)(1). County
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IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953court’s treatment of account transfers made prior to decedent’s
death can be effectively considered on an appeal from the final
judgment. See In re Estate of Rose, 273 Neb. 490, 730 N.W.2d
391 (2007).” The Court of Appeals denied Carl Sr.’s motion
for rehearing.
We granted Carl Sr.’s petition for further review.
ASSIGNMENT OF ERROR
Carl Sr. claims that the Court of Appeals erred when it deter-
mined that the county court’s order was not a final, appealable
order and when it therefore dismissed his appeal for lack of
jurisdiction.
STANDARDS OF REVIEW
[1,2] The question of jurisdiction is a question of law. Tegra
Corp. v. Boeshart, 311 Neb. 783, 976 N.W.2d 165 (2022). An
appellate court independently reviews questions of law decided
by a lower court. Heist v. Nebraska Dept. of Corr. Servs., ante
p. 480, 979 N.W.2d 772 (2022).
ANALYSIS
[3] It is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it,
irrespective of whether the issue is raised by the parties. Tegra
Corp. v. Boeshart, supra. Therefore, it was appropriate for the
Court of Appeals to consider whether the county court’s order
was final and whether it had jurisdiction over this appeal. We
independently review the Court of Appeals’ determination that
it lacked appellate jurisdiction.
As the first step in our analysis, it is necessary to clarify
the nature of the proceeding that was being addressed in the
county court’s February 18, 2022, order that Carl Sr. seeks
to appeal. The Court of Appeals’ minute entry cites to a case
involving a decedent’s estate proceeding, and in his argument
in opposition to Carl Sr.’s motion for rehearing in the Court of
Appeals, Carl Jr. relied on cases involving decedents’ estates.
However, in his brief in support of further review, Carl Sr.
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312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953relies on cases involving administration of trusts, and he argues
in part that the county court’s order that he seeks to appeal was
not preliminary to or “interrelated to a subsequent” determina-
tion of the estate, brief for appellant in support of petition for
further review at 6, notwithstanding the fact that the caption
on the order sought to be appealed states that the order is “In
the Matter of the Estate of Filadelfo (Jack) Scaletta, deceased.”
Whether the county court’s order is related to administration of
the Trust or whether it is a part of Jack’s estate proceeding is
relevant to our analysis of whether the order is a final, appeal-
able order.
Carl Sr. filed a petition for trust administration proceeding
pursuant to Neb. Rev. Stat. § 30-3812 (Reissue 2016), which
provides:
(a) The court may intervene in the administration of a
trust to the extent its jurisdiction is invoked by an inter-
ested person or as provided by law.
(b) A trust is not subject to continuing judicial super­
vision unless ordered by the court.
(c) A judicial proceeding involving a trust may relate
to any matter involving the trust’s administration, includ-
ing a request for instructions and an action to declare
rights.
On its face, Carl Sr.’s petition sought, inter alia, a declaration
of rights under § 30-3812(c).
We further note that Neb. Rev. Stat. § 30-3814 (Reissue
2016) provides in relevant part that “the county court has
jurisdiction over all subject matter relating to trusts”; that
the “county court has full power to make orders, judgments,
and decrees and take all other action necessary and proper to
administer justice in the matters which come before it”; and
that “[e]ach proceeding before the court is independent of
any other proceeding involving the same trust.” In his peti-
tion, Carl Sr. stated that he was “requesting records and an
accounting with regard to the handling of as[s]ets placed in”
the Trust and that he was also seeking “a declaratory judgment
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953as to the proper disposition of assets” that were placed in the
Trust. We agree with Carl Sr. that the matter initiated by Carl
Sr. and now before us involves the Trust.
In the February 18, 2022, order, the county court stated that
it was ruling on Carl Sr.’s petition for trust administration,
and it specifically limited its ruling to issues that involved
the Trust. The court found that the actions taken by Carl Jr. in
transferring assets to the Trust were taken by him as the trustee
of the Trust. The county court ruled on requests for declara-
tory judgments regarding the propriety of those transfers made
by Carl Jr. as trustee. The county court further ordered Carl
Jr. as “the Trustee of the . . . Trust” to submit an accounting
and provide an accounting to interested parties. We determine,
therefore, that the order Carl Sr. seeks to appeal involved a
county court ruling in a trust action regarding the Trust and
that the order was not a ruling on matters of the estate.
In the process of this case, some confusion may have been
created in the minds of the courts and the parties, because, as
we have noted, although the petition filed by Carl Sr. was titled
in the name of the Trust, the matter was assigned the estate
proceeding’s case number. In this regard, as we have noted, the
county court’s February 18, 2022, order ruling on the petition
for trust administration was captioned in the name of Jack’s
estate rather than the name of the Trust.
We take this opportunity to warn against mingling separate
trust actions with ongoing estate proceedings. Proceedings
in a decedent’s estate are governed by statutes that are part
of the Probate Code. See Neb. Rev. Stat. § 30-2201 (Cum.
Supp. 2020) (setting forth statutory sections that are part of
Nebraska Probate Code). By contrast, trusts are governed by
the Nebraska Uniform Trust Code, Neb. Rev. Stat. §§ 30-3801through 30-38,110 (Reissue 2016 & Cum. Supp. 2020), and
in particular, trust administration actions are authorized by
§ 30-3812. Section 30-2201 does not designate the Nebraska
Uniform Trust Code as being part of the Nebraska Probate
Code. Trust actions and estate proceedings are currently
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953governed by separate statutory sections. Separate statutory
paths are consistent with the historical treatment of trusts and
estates. Historically, matters related to trusts were considered
part of a court’s inherent chancery jurisdiction rather than a
court’s probate jurisdiction. See In re Estate of Frerich, 120
Neb. 462, 233 N.W. 456 (1930). In the present case, although
issues related to the Trust might have an effect on Jack’s estate,
the instant trust administration involved the Trust rather than
Jack’s estate, and it was an action under the Nebraska Uniform
Trust Code rather than an estate proceeding under the Nebraska
Probate Code.
Because the order ruled on a trust administration matter,
an appeal of the order is subject to § 30-3821, which pro-
vides, “Appellate review under the Nebraska Uniform Trust
Code shall be governed by section 30-1601.” Neb. Rev. Stat.
§ 30-1601(1) (Cum. Supp. 2020) provides in relevant part
that “in all matters in county court arising under the Nebraska
Uniform Trust Code, . . . appeals may be taken to the Court of
Appeals in the same manner as an appeal from district court to
the Court of Appeals.” We read § 30-1601(1) as incorporating
the rules of appealability in civil matters, including Neb. Rev.
Stat. § 25-1902 (Cum. Supp. 2020).
[4,5] We have recognized in a case involving a trust that 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 Margaret L. Matthews
Revocable Trust, ante p. 381, 979 N.W.2d 259 (2022). To be
final, an order must dispose of the whole merits of the case. Id.When no further action of the court is required to dispose of a
pending cause, the order is final. Id.In this case, Carl Sr. filed a petition in the county court in
which he sought two things: a declaratory judgment regard-
ing the handling of assets transferred into the Trust and an
accounting of the Trust. The county court entered an order in
which it denied a declaratory judgment with respect to certain
accounts, granted a declaratory judgment with respect to other
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953accounts, and ordered distribution of those other accounts to
Carl Sr. The county court also ordered that in the absence of
agreement, Carl Jr., as trustee of the Trust, submit a complete
accounting. We read this order as reflecting the county court’s
expectation that further action was required to completely dis-
pose of Carl Sr.’s petition.
We determine that the order did not wholly dispose of the
request for a Trust accounting because until that accounting
is completed, the trust administration proceeding is not com-
pleted and the order is not yet final. See § 25-1902 (regarding
appealability of substantial right in special proceeding).
The Court of Appeals therefore did not err when it con-
cluded that it lacked jurisdiction and dismissed this appeal.
CONCLUSION
Based on the reasoning set forth above, we conclude that
the county court’s February 18, 2022, ruling was not a final
order in the trust administration proceeding and that therefore,
the Court of Appeals lacked jurisdiction of this appeal. We
affirm the order of the Court of Appeals that dismissed the
appeal for lack of jurisdiction.
Affirmed.