Castellar Partners v. AMP Limited ( 2015 )

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CASTELLAR PARTNERS v. AMP LIMITED
Cite as 291 Neb. 163Castellar Partners LLC, appellant, v.
AMP Limited et al., appellees.
___ N.W.2d ___
Filed June 19, 2015. No. S-14-461.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Final Orders: Appeal and Error. A trial court’s decision to certify a
final judgment pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2008)
is reviewed for an abuse of discretion.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
4. Actions: Parties: Final Orders: Appeal and Error. With the enact-
ment of Neb. Rev. Stat. § 25-1315(1) (Reissue 2008), one may bring
an appeal pursuant to such section only when (1) multiple causes of
action or multiple parties are present, (2) the court enters a final order
within the meaning of Neb. Rev. Stat. § 25-1902 (Reissue 2008) as to
one or more but fewer than all of the causes of action or parties, and
(3) the trial court expressly directs the entry of such final order and
expressly determines that there is no just reason for delay of an imme-
diate appeal.
5. Judgments: Parties: Appeal and Error. Certification of a final judg-
ment must be reserved for the unusual case in which the costs and risks
of multiplying the number of proceedings and of overcrowding the
appellate docket are outbalanced by pressing needs of the litigants for
an early and separate judgment as to some claims or parties.
6. Judges: Judgments. The power that Neb. Rev. Stat. § 25-1315(1)
(Reissue 2008) confers upon the trial judge should be used only in the
infrequent harsh case as an instrument for the improved administration
of justice, based on the likelihood of injustice or hardship to the parties
of a delay in entering a final judgment as to part of the case.
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Cite as 291 Neb. 1637. Courts: Judgments. A trial court considering certification of a final
judgment should weigh factors such as (1) the relationship between the
adjudicated and unadjudicated claims; (2) the possibility that the need
for review might or might not be mooted by future developments in the
trial court; (3) the possibility that the reviewing court might be obliged
to consider the same issue a second time; (4) the presence or absence
of a claim or counterclaim which could result in setoff against the judg-
ment sought to be made final; and (5) miscellaneous factors such as
delay, economic and solvency considerations, shortening the time of
trial, frivolity of competing claims, expense, and the like.
8. Jurisdiction: Final Orders: Appeal and Error. If the trial court has
abused its discretion in certifying an order as final under Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2008), there is no final order before the appellate
court and, thus, no jurisdiction of the appeal.
9. Judges: Judgments. When a trial court concludes that entry of judg-
ment under Neb. Rev. Stat. § 25-1315(1) (Reissue 2008) is appropriate,
it should ordinarily make specific findings setting forth the reasons for
its order.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Order vacated in part, and appeal
dismissed.
Jason M. Bruno and Jared C. Olson, of Sherrets, Bruno &
Vogt, L.L.C., for appellant.
James P. Fitzgerald and Patrick D. Pepper, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
Castellar Partners LLC (Castellar) appeals from a purported
final judgment dismissing 1 claim, but retaining 10 other
claims. The district court concluded that due to a forum selec-
tion clause, the claim for breach of contract was required to be
litigated in New South Wales, Australia. And it certified the
dismissal of that claim as a final judgment pursuant to Neb.
Rev. Stat. § 25-1315(1) (Reissue 2008). However, we find
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CASTELLAR PARTNERS v. AMP LIMITED
Cite as 291 Neb. 163that the certification was improper. Castellar’s claims entail
“similar issues” and “related facts,” and all of the parties
remain involved in the litigation before the district court. We
therefore dismiss the appeal for lack of jurisdiction.
BACKGROUND
According to Castellar’s amended complaint, it was retained
in 2009 by the appellees (collectively AMP parties) to review
a “hedge fund portfolio” and the services being provided
by another advisor. The AMP parties, which are interre-
lated, include:
• AMP Limited (AMP)—a “multibillion dollar Australian
asset manager”;
• AMP Capital Investors (US) Limited (AMP US)—a subsid-
iary of AMP, incorporated in Delaware;
• AMP Capital Investors Limited (AMPCI)—a second subsid-
iary of AMP, incorporated in Australia; and
• AMP Capital Alternative Defensive Fund—the hedge fund
portfolio managed by AMP and its subsidiaries, involved in
“high risk and high return investments.”
In its review of the fund, Castellar identified governance
and compliance failures and irregularities contributing to
losses of “hundreds of millions of dollars over many months.”
Castellar informed the AMP parties of its findings, and the
AMP parties sought Castellar’s assistance in resolving the
issues it had identified. The AMP parties further sought to
remove the acting advisor, and Castellar helped negotiate a
settlement with the advisor over several matters, including
unpaid fees.
In consideration of Castellar’s services, the AMP par-
ties promised Castellar a “substantial monetary reward” that
included the opportunity to be “partners . . . in building
a global business.” Additionally, the AMP parties offered
Castellar “customary hedge fund performance fees” and fees
from the development of a new investment product.
In December 2009, Castellar and AMPCI executed an
“Advisory Agreement.” According to Castellar, the agreement
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CASTELLAR PARTNERS v. AMP LIMITED
Cite as 291 Neb. 163was “one of a series of agreements which . . . would transition
into a proper hedge fund advisory contract and global busi-
ness partnership.” Under the agreement, Castellar was required
to “provide investment advisory services” regarding the fund
in exchange for fees amounting to a one-time payment of
$562,500 and an annual retainer of $1 million.
However, the formation of the global business partnership
apparently never occurred and the AMP parties terminated
their relationship with Castellar in October 2010. Castellar
filed suit and alleged that the AMP parties had “recklessly and
willfully” misled it in order to obtain its services with regard
to the fund. As indicated above, Castellar asserted 11 causes
of action. With respect to the advisory agreement, Castellar
alleged that the AMP parties had breached the agreement by
failing to provide proper notice of termination. And Castellar
alleged that such failure had caused it to sustain damages in the
amount of $250,000.
AMP US moved to dismiss on the basis of lack of personal
jurisdiction. But rather than proceeding on the motion, the par-
ties entered into a stipulation that AMP US would withdraw
the motion and that the AMP parties would not contest per-
sonal jurisdiction. However, they reserved the right to assert
that any claim involving the advisory agreement was required
to be litigated in New South Wales.
In the advisory agreement, Castellar and AMPCI specified
that all disputes would be subject to the
exclusive jurisdiction of the courts of the place speci-
fied in the Details and courts of appeal from them. Each
party waives any right it has to object to an action being
brought in those courts including, without limitation, by
claiming that the action has been brought in an inconve-
nient forum or that those courts do not have jurisdiction.
And they further agreed that the “Governing law” would
be the “law in force in the place stated in the Details.” The
“Details” stated that the governing law was the law of New
South Wales. But Castellar argues that the details did not con-
tain an additional statement as to jurisdiction.
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Cite as 291 Neb. 163The AMP parties moved to dismiss Castellar’s claim for
breach of the advisory agreement. After multiple hearings, the
district court granted their request. The court first determined
that AMP, AMP US, and the fund were not signatories to the
agreement. It concluded that the only parties to the agreement
were Castellar and AMPCI. And as to AMPCI, the court found
that a “reasonable interpretation” of the agreement required
all disputes to be litigated in New South Wales and to be gov-
erned by its laws.
After the dismissal of its claim for breach of the agreement,
Castellar moved for certification of a final judgment pursuant
to § 25-1315(1). On May 15, 2014, the district court sustained
the motion, but it set forth no findings or analysis and merely
repeated the statutory language that “there is no just reason
for delay.”1 Castellar filed a timely notice of appeal, and the
appeal was assigned to the docket of the Nebraska Court of
Appeals. We moved the appeal to our docket.2
ASSIGNMENTS OF ERROR
Castellar assigns, restated, that the district court erred in (1)
determining that the advisory agreement contained an enforce-
able forum selection clause, (2) failing to find that the advisory
agreement was ambiguous and to consider the parties’ inten-
tions, (3) failing to find that the forum selection clause was
permissive, and (4) rejecting its claim that New South Wales
would be a substantially less convenient forum.
STANDARD OF REVIEW
[1,2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law.3 A trial court’s decision to certify a final judgment pursu-
ant to § 25-1315(1) is reviewed for an abuse of discretion.4
1
See § 25-1315(1).
2
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
3
Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
4
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CASTELLAR PARTNERS v. AMP LIMITED
Cite as 291 Neb. 163ANALYSIS
In its assignments of error, Castellar generally asserts that
the district court improperly construed the advisory agreement
in determining that it contained an enforceable forum selec-
tion clause. It contends that the agreement did not specify an
exclusive forum in which to litigate disputes or, in the alterna-
tive, that any such provision was unenforceable.
[3] However, we do not consider the merits of Castellar’s
arguments. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.5 In
our jurisdictional review, we conclude that the district court
improperly certified the dismissal of Castellar’s claim for
breach of the advisory agreement as a final judgment pursu-
ant to § 25-1315(1). Thus, we are without jurisdiction over
the appeal.
In Cerny v. Todco Barricade Co.,6 we summarized the leg-
islative intent behind § 25-1315 and set forth a number of
factors for trial courts to consider when applying that section.
Section 25-1315(1) permits a trial court to certify an otherwise
interlocutory order as a final, appealable judgment under the
limited circumstances set forth in the statute:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties
only upon an express determination that there is no just
reason for delay and upon an express direction for the
entry of judgment. In the absence of such determina-
tion and direction, any order or other form of decision,
however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all
the parties shall not terminate the action as to any of the
5
Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015).
6
See Cerny, supra note 3.
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Cite as 291 Neb. 163claims or parties, and the order or other form of deci-
sion is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
[4] There are three elements constituting a § 25-1315(1)
certification. With the enactment of § 25-1315(1), one may
bring an appeal pursuant to such section only when (1) mul-
tiple causes of action or multiple parties are present, (2) the
court enters a final order within the meaning of Neb. Rev. Stat.
§ 25-1902 (Reissue 2008) as to one or more but fewer than
all of the causes of action or parties, and (3) the trial court
expressly directs the entry of such final order and expressly
determines that there is no just reason for delay of an immedi-
ate appeal.7
[5,6] However, as we explained in Cerny, § 25-1315(1)
was intended to prevent interlocutory appeals, not make them
easier.8 And we iterated that certification of a final judgment
must be reserved for the “‘unusual case’” in which the costs
and risks of multiplying the number of proceedings and of
overcrowding the appellate docket are outbalanced by pressing
needs of the litigants for an early and separate judgment as to
some claims or parties.9 The power that § 25-1315(1) confers
upon the trial judge should be used only in the infrequent
harsh case as an instrument for the improved administration
of justice, based on the likelihood of injustice or hardship to
the parties of a delay in entering a final judgment as to part of
the case.10
[7] In determining whether certification is warranted, a trial
court must take into account judicial administrative interests
as well as the equities involved.11 To that effect, a trial court
7
See id.
8
See id.
9
See id. at 809, 733 N.W.2d at 886.
10
See Cerny, supra note 3.
11
See id.- 170 -
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CASTELLAR PARTNERS v. AMP LIMITED
Cite as 291 Neb. 163should weigh (1) the relationship between the adjudicated
and unadjudicated claims; (2) the possibility that the need for
review might or might not be mooted by future developments
in the trial court; (3) the possibility that the reviewing court
might be obliged to consider the same issue a second time; (4)
the presence or absence of a claim or counterclaim which could
result in setoff against the judgment sought to be made final;
and (5) miscellaneous factors such as delay, economic and sol-
vency considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like.12
[8] In the case at bar, Castellar’s suit clearly involved mul-
tiple parties. And the district court’s dismissal of Castellar’s
claim for breach of the advisory agreement was a final order
within the meaning of § 25-1902 as the ultimate disposition of
an individual claim for relief.13 Thus, in this case, the appro-
priateness of certification turns upon whether the district court
properly weighed and considered the above factors. If the trial
court has abused its discretion in certifying an order as final
under § 25-1315(1), there is no final order before the appellate
court and, thus, no jurisdiction of the appeal.14
[9] However, contrary to our express direction in Cerny,
the district court failed to make specific findings in support
of its § 25-1315(1) determination. “When a trial court con-
cludes that entry of judgment under § 25-1315(1) is appropri-
ate, it should ordinarily make specific findings setting forth
the reasons for its order. . . . It is difficult to review the trial
court’s exercise of discretion when the court does not explain
its reasoning.”15
Thus, without specific findings, we must review the record
for some indication of a “‘pressing, exceptional need for
immediate appellate intervention, or grave injustice of the sort
12
See id.
13
See id.
14
Murphy v. Brown, 15 Neb. App. 914, 738 N.W.2d 466 (2007).
15
Cerny, supra note 3, 273 Neb. at 811, 733 N.W.2d at 887.
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Cite as 291 Neb. 163remediable only by allowing an appeal to be taken forthwith,
or dire hardship of a unique kind.’”16 We further take particular
notice of the allegations contained in Castellar’s request for
certification.17 But rather than demonstrating that certification
was appropriate, Castellar’s allegations affirmatively show that
it was not.
In its request for certification of a final judgment, Castellar
alleged that its 11 causes of action involved the “same par-
ties, similar issues, and related facts.” As we explained in
Cerny, the presence of overlapping claims counsels against
certification, not in favor of it.18 Moreover, all of the claims
stated in Castellar’s amended complaint appear to arise
from the same underlying event—the AMP parties’ alleged
breach of various promises to form a “global business” with
Castellar. And Castellar alleged that the advisory agreement
was a step toward “transition[ing] into a proper hedge fund
advisory contract and global business partnership.” Thus, it
appears that Castellar’s claims involve considerable overlap.
When the dismissed and surviving claims are factually and
legally overlapping or closely related, fragmentation of the
case is to be avoided except in “‘“unusual and compelling
circumstances.”’”19
We recognize that the district court’s dismissal of
Castellar’s claim for breach of the advisory agreement may
cause Castellar to incur considerable expense in litigating
the claim in New South Wales. But there is no indication of
any grave injustice or dire hardship that would result from
requiring Castellar to raise this issue in an appeal from a final
determination of the case. Castellar’s claim of a New South
16
Id. at 810, 733 N.W.2d at 887, quoting Spiegel v. Trustees of Tufts College,
843 F.2d 38 (1st Cir. 1988).
17
See Cerny, supra note 3.
18
See id.19
Id. at 813, 733 N.W.2d at 888-89, quoting Long v. Wickett, 50 Mass. App.
380, 737 N.E.2d 885 (2000).
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Cite as 291 Neb. 163Wales statute of limitations is a mere allegation with no evi-
dentiary support.
The law disfavors piecemeal appeals, and multiple appeals
interfere with efficient judicial administration and impose on
the parties costs and risks associated with protracted litiga-
tion.20 Because all of Castellar’s claims are interrelated and
the same parties remain involved in the pending litigation, we
conclude that the district court abused its discretion in certify-
ing a final judgment pursuant to § 25-1315(1).
CONCLUSION
Without specific findings to guide our review of the dis-
trict court’s § 25-1315(1) determination, we find no basis
to conclude that this was the “unusual case” warranting the
proliferation of piecemeal appeals. And the interrelatedness
of Castellar’s claims counsels against certification. We there-
fore conclude that the district court abused its discretion in
certifying the dismissal of Castellar’s claim for breach of
the advisory agreement as a final judgment. Thus, we vacate
the provision of the court’s May 15, 2014, order purporting
to certify a final judgment and dismiss the appeal for lack
of jurisdiction.
Order vacated in part, and appeal dismissed.
20
See, Cerny, supra note 3; Halac v. Girton, 17 Neb. App. 505, 766 N.W.2d
418 (2009).