S-22-115, In re Estate of Filadelfo (“Jack”) Scaletta
Petition for Further Review from the Nebraska Court of Appeals on appeal thereto from the County Court for Douglas County, Nebraska, Hon. Jeffrey L. Marcuzzo
Attorneys: Maynard Weinberg (Weinberg & Weinberg for Appellant, Carl Scaletta, Sr.); Dennis P. Lee (Lee Law Firm for Appellee, Carl Scaletta, Jr); and Adam Wintz (Carlson Blakeman Law Firm for Appellee, Josephine Leiker).
Probate: Dismissal for Lack of Jurisdiction; Petition for Further Review.
Proceedings Below: Appellant filed a Motion for Declaratory Judgment pertaining to the pre-death transfer of monies, and the trial court granted the motion in part and denied it in part. On appeal, the Nebraska Court of Appeals dismissed the case for lack of jurisdiction pursuant to Neb. Ct. R. App. P. § 2-107(A)(1). Appellant petitioned for further review, which was sustained, and the Nebraska Supreme Court transferred this case to its docket.
Issues: On Petition for Further Review, Appellant makes the following assignments of error: (1) The Court [of Appeals] erred in not finding that the Appeal of the final judgment in the declaratory judgment action was not a final appealable judgment under Neb. Rev. Stat. 25- 1902(b) (Cum. Supp. 2020) because: (A) All probate proceedings are special proceedings; (B) The Declaratory Judgment involved a “substantial right” to ownership in decedent’s bank accounts which had POD designations prior to death. The ultimate and only issue was a legal issue set out in the Declaratory Judgment cause of action which involved whether under the decedent’s trust and power of attorney the trustee and holder of the power of attorney could transfer assets for his own benefit. The ultimate and only issue added a legal issue was not preliminary to any other determination in the Declaratory Judgment action. In fact, all factual issues were fully agreed to or stipulated to by all parties; and (C) The Declaratory Judgment could not await a time to appeal at the end of the estate since a final declaratory judgment must be appealed as other judgments within 30 days.