Appeals. Attorney's fees. SCOVT vacates civil division order in attempted appeal from a probate order that was not appealable because question of attorney’s fees remained to be decided in probate court; Supreme Court has no jurisdiction where there was no jurisdiction below.

 In re Estate of Miriam Thomas, 2022 VT 59 (filed 11/11/2022)

CARROLL, J. Estate appeals the civil division’s order granting former guardian’s motion to dismiss a decision of the probate division. The probate division ordered guardian to reimburse his mother’s estate for what it described as damages incurred during his tenure as her financial guardian. However, the civil division did not have subject-matter jurisdiction because the probate division’s order was not a final order. Accordingly, we vacate the civil division’s order and remand to the probate division for further proceedings.

A necessary predicate for appellate jurisdiction is the order appealed from must be a final order. An order is final if the decree or judgment disposed of all matters that should or could properly be settled at the time and in the proceeding then before the court.

Here, the probate division in ordering reimbursement expressly did not issue a final judgment order, but provided that one would follow its final determination of fees and costs against the Guardian. It set a two-month schedule for the parties to produce evidence on the matter.

We have held that an appeal from an order that resolves attorney’s fees is an appeal from final judgment that brings up on appeal all d substantive issues in the case that were earlier decided. O’Rourke v. Lunde, 2014 VT 88, ¶¶ 13-15, 197 Vt. 360, 104 A.3d 92 (earlier order confirming an arbitration award was properly before the Court on appeal because the later order was “a final judgment [that] it resolved all issues in the case, including the amounts of attorney’s fees” ) Here the order appealed was not a final, appealable order because it expressly left issues to be decided before issuing a final judgment order; it did not dispose “of all matters that should or could” have been properly settled “at the time and in the proceeding then before the court.”

No exception applies. This Court has “frequently treated probate orders as final even where they did not dispose of the entire probate proceeding,” because the “proceedings are frequently lengthy and involve a series of decisions on discrete issues that may be appropriate for immediate review.” Palmer Trust, 2018 VT 134. Palmer held that a probate order that determined whether a particular individual 6 was an heir and beneficiary to a trust was a final, appealable order. Palmer and cases collect in Palmer are distinguishable. These cases Involved a “discreet issue[]”“ or ‘controlling, intermediate decisions’ that where immediate review could correct an error that “‘can harm later phases of the proceeding,’ ” No harm is done to any party by requiring the probate division to determine fees and costs and issue a final judgment order.

Subject-matter jurisdiction either exists or it does not, and where it does not, we must proceed no further. Vermont Rule of Appellate Procedure does not provide an alternative path to reach matters over which this Court has no subject-matter jurisdiction.

The order granting Thomas’s motion to dismiss is vacated and the matter is remanded to the probate division to determine reasonable attorney’s fees and costs and issue a final judgment order.

How cited

SCOVT NOTE Probate Rules 54 and 58, unlike the Vermont and federal civil rules, contain no provision expressly addressing the effect of a request for attroney’s fees on the appealability of a judgment on the merits. See VRCP 58(c) (“when a timely motion for attorneys' fees is made under Rule 54(d)(2), the court, before a notice of appeal has been filed and has become effective, may order that the motion have the same effect under Rule 4 of the Vermont Rules of Appellate Procedure as a timely motion under Rule 59).