In re Estate of Mankhey
CourtNebraska Supreme Court
Date FiledOctober 23, 2026
DocketS-25-548
StatusPublished
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Full Opinion
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/23/2026 08:52 AM CDT
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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
IN RE ESTATE OF MANKHEY
Cite as 322 Neb. 704
In re Estate of Robert Dean Mankhey, deceased.
Tracy L. Ahmad, formerly known as Tracy L.
Mankhey and now known as Tracy L. Bodlak,
appellee, v. Noelia Mankhey, Personal
Representative of the Estate of
Robert Dean Mankhey,
deceased, appellant.
___ N.W.3d ___
Filed October 23, 2026. No. S-25-548.
1. Jurisdiction: Appeal and Error. The question of appellate jurisdiction
is a question of law.
2. ____: ____. Before reaching the legal issues presented for review, it is
the power and duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether the issue is
raised by the parties.
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. 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.
5. 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.
6. ____: ____. An order ending a discrete phase of probate proceedings is
final, but one that is merely preliminary to such an order is not.
7. Judgments: Attorney Fees. A party seeking statutorily authorized attor-
ney fees, for services rendered in a trial court, must make a request for
such fees prior to a judgment in the cause.
8. Attorney Fees: Costs. Attorney fees, where recoverable, are generally
treated as an element of court costs.
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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
IN RE ESTATE OF MANKHEY
Cite as 322 Neb. 704
9. Judgments: Final Orders: Attorney Fees: Costs: Appeal and Error.
An award of costs in a judgment is considered a part of the judgment.
As such, a judgment does not become final and appealable until the trial
court has ruled upon a pending statutory request for attorney fees.
10. Jurisdiction: Appeal and Error. When an appellate court is without
jurisdiction to act, the appeal must be dismissed.
Appeal from the County Court for Dakota County: Edward
H. Matney, Judge. Appeal dismissed.
George H. Moyer, of Moyer & Moyer, for appellant.
Jeanne Neumann Glasford and McKenna F. Carnell, of
Hightower Reff Law, L.L.C., for appellee.
Funke, C.J., Cassel, Stacy, Papik, Freudenberg,
Bergevin, and Vaughn, JJ.
Cassel, J.
INTRODUCTION
In this probate case, a personal representative purports to
appeal from a county court’s order granting a petition and
affidavit for allowance of claim but “not addressing attorneys’
fees.” A supplemental transcript confirms that the court ulti-
mately reserved ruling on attorney fees. Because the order
appealed from did not entirely conclude this discrete phase of
the case and thus was not a final, appealable order, we dismiss
the appeal for lack of jurisdiction.
BACKGROUND
The relevant factual background of this case, for purposes
of this appeal and our disposition, is limited to procedural
history.
Tracy L. Ahmad, formerly known as Tracy L. Mankhey
and now known as Tracy L. Bodlak (claimant), filed a peti-
tion and affidavit for allowance of claim that alleged, in part:
“[Claimant] asks that the court order the Estate of the Decedent
to reimburse her attorneys’ fees incurred in purs[u]ing this
matter, to be presented via separate motion and affidavit upon
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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
IN RE ESTATE OF MANKHEY
Cite as 322 Neb. 704
the resolution of the Claims.” The requested relief included,
among other things, “[Claimant’s] attorneys’ fees.”
On July 7, 2025, the county court entered a written order
that granted the petition but stated that the court was “not
addressing attorneys’ fees at this time.” It further stated, “The
Petition and Affidavit for Allowance of Claim references a
possible motion for attorneys’ fees. If Claimant wishes to file
such a motion, Claimant shall do so within 14 days of the date
of this Order.” It was not clear from the original appellate tran-
script whether the claimant had filed such motion.
On July 18, 2025 (before the 14-day period expired), Noelia
Mankhey (personal representative) filed a purported appeal
from the court’s order. We moved the case to our docket. 1
We issued an order to show cause directing the parties to file
a supplemental transcript showing whether the claimant timely
filed such motion for attorney fees and, if so, whether the court
disposed of that motion, or otherwise show cause why the
appeal should not be dismissed for lack of jurisdiction.
A supplemental transcript has been filed, but neither party
otherwise filed a response to the order to show cause. We
will discuss the supplemental transcript in more detail later
in the opinion. We ordered that the case be submitted without
oral argument. 2
ASSIGNMENTS OF ERROR
The personal representative assigns seven errors, all of
which relate to the merits of the county court’s granting the
petition and affidavit for allowance of claim.
STANDARD OF REVIEW
[1] The question of appellate jurisdiction is a question
of law. 3
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
2
See Neb. Ct. R. App. P. § 2–111(B)(1) (rev. 2022).
3
WRK v. Wiegert, 320 Neb. 822, 30 N.W.3d 832 (2026).
- 707 -
Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
IN RE ESTATE OF MANKHEY
Cite as 322 Neb. 704
ANALYSIS
[2] The parties’ appellate briefs do not address the jurisdic-
tional effect, if any, of the court’s “not addressing attorneys’
fees” in its order. This court must answer the threshold ques-
tion. Before reaching the legal issues presented for review,
it is the power and duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespec-
tive of whether the issue is raised by the parties. 4
[3,4] 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 Generally,
to be final, an order must dispose of the whole merits of the
case. When no further action of the court is required to dis-
pose of a pending cause, the order is final. 6
[5,6] In the probate context, there is an additional jurisdic-
tional wrinkle. A consideration regarding the finality of orders
in probate cases is whether the order ended a discrete—that
is, separate and distinct—phase of the proceedings. 7 An order
ending a discrete phase of probate proceedings is final, but one
that is merely preliminary to such an order is not. 8
Applying the discrete phase rubric, we conclude that but
for the reserved issue of attorney fees, the order granting
the petition and affidavit for allowance of claim would have
ended a discrete phase of the proceedings. Because the claim-
ant’s request for attorney fees was made in the petition, it fell
within that discrete phase.
[7-9] Our jurisprudence on the issue of an unresolved
request for attorney fees is familiar. We have said that a
party seeking statutorily authorized attorney fees, for services
4
Pinpoint Communications v. Gage County, 321 Neb. 764, 37 N.W.3d 178
(2026).
5
In re Estate of Scaletta, 312 Neb. 953, 981 N.W.2d 568 (2022).
6
Id.
7
In re Hessler Living Trust, 313 Neb. 607, 985 N.W.2d 589 (2023).
8
Id.
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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
IN RE ESTATE OF MANKHEY
Cite as 322 Neb. 704
rendered in a trial court, must make a request for such fees
prior to a judgment in the cause. 9 Attorney fees, where recov-
erable, are generally treated as an element of court costs. 10 An
award of costs in a judgment is considered a part of the judg-
ment. As such, a judgment does not become final and appeal-
able until the trial court has ruled upon a pending statutory
request for attorney fees. 11 We have declined to exercise juris-
diction when an appeal is filed before a scheduled hearing 12
or when the trial court has reserved ruling on attorney fees. 13
Here, our jurisdiction hinges on two questions: (1) whether
the claimant filed a motion for attorney fees within the 14-day
period and, if so, (2) whether the court disposed of such
motion. The supplemental transcript supplies the answers,
albeit indirectly.
Conspicuously absent from the supplemental transcript is a
motion for attorney fees filed within the 14-day period. The
supplemental transcript includes four filings: an “Attorney
Fee Affidavit” filed on July 11, 2025 (1 week before the fil-
ing of the notice of appeal and within the 14-day period); an
“Objection to Motion for Attorney’s Fees” filed on July 21
(3 days after the notice of appeal); an order entered on July 25;
and a praecipe for the supplemental transcript.
But one can infer from the supplemental transcript that such
motion was timely filed. The objection noted that the claim-
ant simultaneously filed a “motion for attorney’s fees and an
attorney fee affidavit.” The order confirmed that the court
“received Claimant’s Motion for Attorney Fees as well as
9
Murray v. Stine, 291 Neb. 125, 864 N.W.2d 386 (2015).
10
Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016).
11
Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763
N.W.2d 77 (2009).
12
See, e.g., Billingsley v. BFM Liquor Mgmt., 259 Neb. 992, 613 N.W.2d
478 (2000).
13
See, e.g., In re Guardianship & Conservatorship of Woltemath, 268 Neb.
33, 680 N.W.2d 142 (2004).
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Nebraska Supreme Court Advance Sheets
322 Nebraska Reports
IN RE ESTATE OF MANKHEY
Cite as 322 Neb. 704
Personal Representative’s Objection to the Motion for Attorney
Fees.” The praecipe for transcript requested a “Motion for
Attorney’s Fees filed 07/11/2025”—the same date on which
the attorney fees affidavit was filed. The supplemental tran-
script contains no explanation by the court clerk regarding the
absence of this requested filing.
The ultimate question is whether the court disposed of
such motion. We learn from the supplemental transcript that it
did not.
After observing the court’s receipt of such motion, the order
noted the instant appeal and stated that the court “defer[red]
action on the motion and objection, pending the appeal.” By
deferring action on such motion, the court reserved ruling on
attorney fees.
[10] Under these circumstances, we conclude that the order
appealed from did not wholly dispose of this discrete phase
of the proceedings and that, consequently, the personal rep-
resentative did not appeal from a final, appealable order. This
court lacks jurisdiction of the appeal. When an appellate court
is without jurisdiction to act, the appeal must be dismissed. 14
That applies here.
This situation could have been avoided. If the personal rep-
resentative had sought and received, before filing the appeal, a
ruling on the motion for attorney fees, the appeal could have
been perfected to address both rulings. It necessarily follows
that the order on allowance of claim remained interlocutory
pending disposition on the attorney fees request.
CONCLUSION
Because we lack appellate jurisdiction, we dismiss the pur-
ported appeal.
Appeal dismissed.
14
Main St Properties v. City of Bellevue, 318 Neb. 116, 13 N.W.3d 911
(2024).