Mann v. Mann , 312 Neb. 275 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
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MANN V. MANN
Cite as 312 Neb. 275Asia R. Mann, now known as
Asia R. Harrison, appellee, v.
Brian L. Mann, appellant.
___ N.W.2d ___
Filed August 26, 2022. No. S-19-1194.
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 2016)
is reviewed for an abuse of discretion, but whether § 25-1315 is impli-
cated in a case is a question of law which an appellate court considers
de novo.
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, irrespective of
whether the issue is raised by the parties.
4. Statutes: Appeal and Error. The right of appeal in Nebraska is purely
statutory, and unless a statute provides for an appeal, such right does
not exist.
5. Legislature: Final Orders: Appeal and Error. The Legislature has
authorized appeals from judgments and decrees, as well as final orders,
made by the district court.
6. Final Orders: Appeal and Error. In cases that present multiple claims
for relief or involve multiple parties, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016) permits a trial court to certify an otherwise interlocutory
order as a final, appealable judgment under the limited circumstances
set forth in the statute.
7. ____: ____. When a court properly directs the entry of a final judgment
under Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) as to certain claims
or parties, the order is treated as a judgment from which an aggrieved
party can appeal.
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Cite as 312 Neb. 2758. Claims: Parties. Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is impli-
cated only when a case presents more than one claim for relief or
involves multiple parties, and the court enters an order which adjudi-
cates fewer than all the claims or the rights and liabilities of fewer than
all the parties.
9. Actions: Words and Phrases. For purposes of determining whether
a case presents more than one “claim for relief” under Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016), the term is not synonymous with “issue”
or “theory of recovery,” but is instead the equivalent of a “cause
of action.”
10. Claims: Parties: Judgments: Appeal and Error. When a case involves
multiple claims for relief or multiple parties, and the court has entered
an order adjudicating fewer than all the claims or the rights and liabili-
ties of fewer than all the parties, then, absent a specific statute govern-
ing the appeal providing otherwise, Neb. Rev. Stat. § 25-1315 (Reissue
2016) controls and mandates that the order is not immediately appeal-
able unless the trial court issues an express direction for the entry of
judgment upon an express determination that there is no just reason
for delay.
11. Claims: Parties: Judgments. Absent the entry of a final judgment
under Neb. Rev. Stat. § 25-1315(1) (Reissue 2016), orders adjudicating
fewer than all claims against all parties are not final and are subject to
revision at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.
12. Final Orders: Words and Phrases. The term “final judgment” as used
in Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is the functional equiva-
lent of a “final order” within the meaning of Neb. Rev. Stat. § 25-1902(Cum. Supp. 2020).
13. Final Orders: Appeal and Error. To be appealable, an order must
satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2020) and, where implicated, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016).
14. Claims: Parties: Final Orders: Appeal and Error. In cases where
Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is implicated, and no more
specific statute governs the appeal, an order resolving fewer than all
claims against all parties is not final and appealable if it lacks proper
§ 25-1315 certification. This is so even if the order otherwise satisfies
one of the final order categories in Neb. Rev. Stat. § 25-1902(1) (Cum.
Supp. 2020).
15. Actions: Final Orders. Neb. Rev. Stat. § 25-1315(1) (Reissue 2016)
can be implicated in civil actions, in special proceedings, and in civil
actions joined with special proceedings.
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MANN V. MANN
Cite as 312 Neb. 275Petition for further review from the Court of Appeals,
Moore, Bishop, and Welch, Judges, on appeal thereto from
the District Court for Douglas County, J Russell Derr, Judge.
Judgment of Court of Appeals vacated and remanded with
directions.
Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky,
Pohren & Rogers, L.L.P., for appellant.
Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
This is an interlocutory appeal from an order of par-
tial summary judgment entered in a proceeding brought to
modify custody and child support. The Nebraska Court of
Appeals concluded the summary judgment order was imme-
diately appealable as a final order in a special proceeding
under Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2020) and
affirmed. On further review, we conclude that Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016) was also implicated because the
case involved multiple claims for relief and the partial sum-
mary judgment order resolved fewer than all such claims.
Because § 25-1315(1) is implicated but has not been satis-
fied, we must vacate the decision of the Court of Appeals and
remand the cause with directions to dismiss the appeal for lack
of jurisdiction.
BACKGROUND
In 2009, Asia R. Mann, now known as Asia R. Harrison
(Harrison), gave birth out of wedlock to a daughter, Maleah D.
In 2010, a California court established paternity and entered
a judgment which granted Harrison sole legal and physical
custody of Maleah and granted visitation rights to Maleah’s
biological father.
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Cite as 312 Neb. 275Marriage and Divorce
In 2011, Harrison married Brian L. Mann. Their marriage
produced two children. In 2016, Harrison filed a complaint for
dissolution in the district court for Douglas County, Nebraska.
While the dissolution was pending, Maleah’s biological father
registered the California paternity judgment in the same court.
However, no party brought the registered paternity judgment
to the attention of the dissolution court before the decree was
entered, nor was the court informed that Maleah was the sub-
ject of a California custody judgment.
In July 2018, the district court entered a stipulated decree
dissolving the parties’ marriage. The decree provided for
joint legal and physical custody of the parties’ two children.
Additionally, the decree recited that Mann stood in loco paren-
tis to Maleah and ordered the parties to share joint physical
custody of Maleah, with Harrison having sole legal custody.
The decree also approved the parties’ stipulated parenting plan
and ordered Mann to pay child support for all three children.
Neither party appealed the 2018 decree.
Complaint to Modify Joined With
Declaratory Judgment Action
In July 2019, Mann filed a complaint to modify his child
support obligation and certain provisions of the parenting plan.
Harrison’s answer generally denied that Mann was entitled
to modification. Harrison’s answer also alleged two counter-
claims. Her first counterclaim was framed as an action under
the Uniform Declaratory Judgments Act, 1 and it attacked the
validity of provisions in the 2018 decree relating to Maleah’s
custody and care. 2 Harrison alleged, summarized, that when the
decree was entered, the 2010 California judgment of paternity
1
Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).
2
See Neb. Rev. Stat. § 42-346 (Reissue 2016) (providing that divorce decrees
are “conclusively presumed . . . valid in all respects, notwithstanding some
defect . . . unless an action is brought within two years from the entry of
such decree of divorce attacking the validity thereof”).
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Cite as 312 Neb. 275and custody was still in full force and effect, and that California
had not relinquished its exclusive and continuing jurisdiction
over Maleah under the Uniform Child Custody Jurisdiction and
Enforcement Act. 3 She therefore alleged the Nebraska court
did not have subject matter jurisdiction over Maleah when the
dissolution decree was entered, and she sought a declaration
that “any orders for [Maleah’s] custody and care should be
declared void as a matter of law.” Harrison’s second counter-
claim sought to modify custody of the other two children to
give her sole legal and physical custody.
Partial Summary Judgment Granting
Declaratory Relief
Both parties moved for partial summary judgment on
Harrison’s counterclaim for declaratory judgment. After an
evidentiary hearing, the district court entered an order which
granted Harrison’s summary judgment motion and vacated that
“portion of the Decree that provides for ‘in loco parentis’ rights
to [Mann] with regard to Maleah.” The order did not expressly
overrule Mann’s summary judgment motion or address his sup-
port obligations regarding Maleah.
Mann filed a motion to clarify and to set a supersedeas bond.
In an order entered December 20, 2019, the district court clari-
fied its prior order by granting Harrison’s motion for summary
judgment, denying Mann’s motion for summary judgment,
voiding every provision in the 2018 decree and parenting plan
pertaining to Maleah, and eliminating all of Mann’s support
obligations regarding Maleah. The December order also denied
Mann’s request for a supersedeas bond.
Mann filed a notice of appeal from the partial summary
judgment order, assigning error to the district court’s conclu-
sion that it lacked subject matter jurisdiction over Maleah under
the Uniform Child Custody Jurisdiction and Enforcement Act
when the decree was entered. It is undisputed that when the
3
Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016 & Cum. Supp.
2020).
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Cite as 312 Neb. 275notice of appeal was filed, the parties’ competing complaints to
modify custody and support remained pending and unresolved
in the district court. Likewise, it is undisputed that Mann did
not ask the court to enter final judgment on the declaratory
judgment claim under § 25-1315(1), and no such certification
was issued sua sponte.
Court of Appeals
The Court of Appeals affirmed. 4 It first addressed appellate
jurisdiction, rejecting Harrison’s argument that the partial sum-
mary judgment order was not immediately appealable under
any of the final order categories enumerated in § 25-1902.
Instead, the Court of Appeals reasoned that custody modi-
fications are considered special proceedings, 5 so the order
granting partial summary judgment was an order “affecting
a substantial right made during a special proceeding” under
§ 25-1902(1)(b). The opinion did not discuss or distinguish our
cases reciting the rule that partial summary judgment orders
are interlocutory in nature and will not be considered final
4
Mann v. Mann, 29 Neb. App. 548, 956 N.W.2d 318 (2021).
5
See, Yori v. Helms, 307 Neb. 375, 390, 949 N.W.2d 325, 337 (2020)
(“[p]roceedings regarding modification of a marital dissolution are
special proceedings”); Huskey v. Huskey, 289 Neb. 439, 449, 855 N.W.2d
377, 385 (2014) (“an order modifying custody arises from a special
proceeding”); Fitzgerald v. Fitzgerald, 286 Neb. 96, 105, 835 N.W.2d 44,
51 (2013) (“modification of child custody and support in a dissolution
action is . . . a special proceeding”); Steven S. v. Mary S., 277 Neb. 124,
129, 760 N.W.2d 28, 33 (2009) (“proceedings regarding modification of
a marital dissolution . . . are special proceedings”); State ex rel. Reitz
v. Ringer, 244 Neb. 976, 980, 510 N.W.2d 294, 299 (1994), overruled
on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780(1999) (“custody determinations, which are controlled by § 42-364, are
considered special proceedings”). But see Carmicheal v. Rollins, 280
Neb. 59, 72, 783 N.W.2d 763, 772 (2010) (Connolly, J., concurring)
(acknowledging prior holdings treating custody modifications as special
proceedings but noting they are arguably “more properly” treated as order
affecting substantial right made on summary application in action after
judgment is rendered).
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Cite as 312 Neb. 275until all issues in the case are determined. 6 And although the
Court of Appeals noted that the modification case presented
other claims for relief that had not yet been resolved, 7 its
jurisdictional analysis did not address whether § 25-1315(1)
was implicated.
After concluding it had appellate jurisdiction, the Court of
Appeals framed the question on appeal as whether the district
court had the authority to vacate or modify portions of the
2018 decree upon learning that it “should not have exercised
jurisdiction on issues related to Maleah’s custody due to the
California court’s continuing jurisdiction.” 8 It answered that
question in the affirmative, finding the necessary authority in
Neb. Rev. Stat. § 25-2001(4) (Reissue 2016), which governs
a district court’s power to vacate or modify judgments after
term. The Court of Appeals therefore affirmed the district
court’s order granting partial summary judgment in favor
of Harrison.
We granted Mann’s petition for further review and ordered
supplemental briefing. Among other questions, we asked the
parties to brief whether, to be immediately appealable, an order
of partial summary judgment which adjudicates fewer than all
claims for relief presented in a custody modification case must
satisfy both § 25-1902 and § 25-1315. The parties submitted
supplemental briefs addressing this question, which we sum-
marize later in our jurisdictional analysis.
ASSIGNMENTS OF ERROR
On further review, Brian assigns three errors, which can
be consolidated and restated into one. He asserts the Court of
Appeals erred in concluding the district court had authority,
6
See, e.g., O’Connor v. Kearny Junction, 295 Neb. 981, 987, 893 N.W.2d
684, 690 (2017) (“[p]artial summary judgments are usually considered
interlocutory. They must ordinarily dispose of the whole merits of the case
to be considered final . . .”).
7
See Mann, supra note 4.
8
Id. at 559, 956 N.W.2d at 327.
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MANN V. MANN
Cite as 312 Neb. 275under § 25-2001(4), to vacate the 2018 decree provisions relat-
ing to Maleah.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 9
[2] A trial court’s decision to certify a final judgment pursu-
ant to § 25-1315(1) is reviewed for an abuse of discretion, 10
but whether § 25-1315 is implicated in a case is a question of
law which an appellate court considers de novo.
ANALYSIS
Appellate Jurisdiction
[3] 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, irrespective of whether
the issue is raised by the parties. 11
[4,5] The right of appeal in Nebraska is purely statutory,
and unless a statute provides for an appeal, such right does
not exist. 12 The Legislature has authorized appeals from judg-
ments and decrees, as well as final orders, made by the district
court. 13 A judgment is defined in Neb. Rev. Stat. § 25-1301(Cum. Supp. 2020) to mean “the final determination of the
rights of the parties in an action.” 14 Final orders are defined in
§ 25-1902, which currently recognizes four categories of final
9
Clason v. LOL Investments, 308 Neb. 904, 957 N.W.2d 877 (2021).
10
Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391(2015).
11
See Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d
906 (2016).
12
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
13
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020).
14
See, also, Becher v. Becher, 311 Neb. 1, 27, 970 N.W.2d 472, 492 (2022)
(“[a] ‘judgment’ is a court’s final consideration and determination of the
respective rights and obligations of the parties to an action as those rights
and obligations presently exist”).
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Cite as 312 Neb. 275orders; some categories pertain to actions, 15 and one pertains to
special proceedings. 16
[6,7] Additionally, in cases that present multiple claims for
relief or involve multiple parties, § 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. 17 Subsection (1) of that statute provides:
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
claims 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.
When a court properly directs the entry of a final judgment
under § 25-1315(1) as to certain claims or parties, the order
is treated as a judgment from which an aggrieved party can
appeal. 18
Here, the Court of Appeals concluded it had appellate juris-
diction, reasoning the order granting partial summary judgment
15
See § 25-1902(1)(a) and (c).
16
See § 25-1902(1)(b).
17
Castellar Partners, supra note 10.
18
See Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
See, also, § 25-1912(1) (providing procedure for appeals from district
court); Neb. Rev. Stat. § 25-2729(1) (Cum. Supp. 2020) (providing appeal
procedure from county court).
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Cite as 312 Neb. 275was an order affecting a substantial right made in a special
proceeding and thus was a final order under § 25-1902(1)(b).
Neither party challenges this conclusion on further review, and
we express no opinion on the Court of Appeals’ final order
analysis or the circumstances, if any, under which a sum-
mary judgment order granting declaratory relief can satisfy
the final order requirements of § 25-1902(1)(b). Instead, we
focus on a different jurisdictional question: Is this a case where
§ 25-1315(1) is implicated?
The parties addressed this question in their supplemen-
tal briefing. Mann argues, summarized, that our appellate
jurisdiction turns exclusively on the final order require-
ments in § 25-1902(1)(b). He reasons that “[w]here an order
already meets the clear statutory definition of a final order
under [§ 25-1902], a separate order by the trial court des-
ignating that same order as final under [§ 25-1315] would
be super­fluous for the purposes of determining appellate
jurisdiction.” 19 And he contends this case presents a final
order under § 25-1902(1)(b) because the summary judgment
order was entered in a special proceeding and affected his
substantial rights.
Harrison argues that even if the summary judgment order
was entered in a special proceeding, both § 25-1315(1) and
§ 25-1902 must be satisfied in this case to confer appellate
jurisdiction. Harrison argues that § 25-1315(1) is implicated
here because the case presents multiple claims for relief and
the summary judgment order resolved only the counterclaim
for declaratory judgment. She also argues, “There is no indica-
tion that the [L]egislature intended to [exempt] custody modi-
fication proceedings, or any other type of special proceedings
from [the] requirements” 20 of § 25-1315.
To address the parties’ competing jurisdictional arguments,
we begin by reviewing § 25-1315(1) and the pertinent cases
construing it.
19
Supplemental brief for appellant at 8.
20
Supplemental brief for appellee at 9.
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Cite as 312 Neb. 275§ 25-1315(1)
Under Nebraska’s liberal joinder rules, a case can involve
multiple plaintiffs, multiple defendants, and multiple claims for
relief, including counterclaims, cross-claims, and third-party
claims. 21 Appellate jurisdiction is relatively straightforward
when a judgment or decree resolves all claims presented as to
all parties. But before § 25-1315 was enacted, the rules gov-
erning interlocutory appeals in civil cases involving multiple
claims or multiple parties generally provided:
[A]n order that effected a dismissal with respect to one
of multiple parties was a final, appealable order, and
the complete dismissal with prejudice of one of multiple
causes of action was a final, appealable order, but an
order dismissing one of multiple theories of recovery, all
of which arose from the same set of operative facts, was
not a final order for appellate purposes. 22
Uncertainty in applying these rules in multiclaim, multiparty
cases prompted some parties to file premature appeals, and
others to miss appeal deadlines altogether. 23
To clarify and simplify appellate jurisdiction in cases involv-
ing multiple claims and multiple parties, 24 the Legislature
enacted what is now codified as § 25-1315. 25 In enact-
ing § 25-1315, the Legislature attempted to strike a balance
21
See, e.g., Neb. Rev. Stat. §§ 25-311, 25-320, 25-701, and 25-705 (Reissue
2016).
22
TDP Phase One v. The Club at the Yard, 307 Neb. 795, 801, 950 N.W.2d
640, 646 (2020).
23
See, e.g., Thrift Mart v. State Farm Fire & Cas. Co., 251 Neb. 448,
558 N.W.2d 531 (1997), overruled on other grounds, Hornig v. Martel
Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000) (missed deadline to
appeal); Lewis v. Craig, 236 Neb. 602, 463 N.W.2d 318 (1990) (appeal
prematurely filed).
24
See Bargmann v. State, 257 Neb. 766, 773, 600 N.W.2d 797, 804 (1999)
(noting what is now codified as § 25-1315 was enacted to “simplif[y]”
appellate jurisdiction and “clear[] up many of the questions regarding final
orders when there are multiple parties and claims”).
25
See § 25-705(6) and (7) (Cum. Supp. 1998).
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Cite as 312 Neb. 275between the undesirability of piecemeal appeals and the poten-
tial need for making review available at a time that best serves
the needs of the parties. 26
[8,9] By its terms, § 25-1315(1) is implicated only when a
case presents more than one claim for relief or involves multiple
parties, and the court enters an order which adjudicates fewer
than all the claims or the rights and liabilities of fewer than
all the parties. 27 For purposes of determining whether a case
presents more than one “claim for relief” under § 25-1315(1),
we have said the term is not synonymous with “issue” or
“theory of recovery,” but is instead the equivalent of a “cause
of action.” 28 Because of this construction, our cases sometimes
use the phrases “claim for relief” and “cause of action” inter-
changeably when analyzing whether § 25-1315 is implicated. 29
[10,11] When § 25-1315 is implicated, we have explained
the consequences this way:
[When a case involves] multiple claims for relief or
multiple parties, and the court has [entered an order
adjudicating] fewer than all the claims or the rights and
liabilities of fewer than all the parties, then, absent a
specific statute governing the appeal providing other-
wise, § 25-1315 controls and mandates that the order is
not immediately appealable unless the lower court issues
an “express direction for the entry of judgment” upon
“an express determination that there is no just reason
for delay.” 30
26
TDP Phase One, supra note 22.
27
See, Clason, supra note 9; State on behalf of Marcelo K. & Rycki K. v.
Ricky K., 300 Neb. 179, 912 N.W.2d 747 (2018); Rafert v. Meyer, 298
Neb. 461, 905 N.W.2d 30 (2017); Guardian Tax Partners v. Skrupa Invest.
Co., 295 Neb. 639, 889 N.W.2d 825 (2017); Cerny, supra note 18.
28
State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009). See, also,
Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
29
Compare, e.g., Guardian Tax Partners, supra note 27 (cause of action),
with Cerny, supra note 18 (claim for relief).
30
TDP Phase One, supra note 22, 307 Neb. at 800, 950 N.W.2d at 645-46.
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Cite as 312 Neb. 275Further, absent the entry of a final judgment under § 25-1315(1),
orders adjudicating fewer than all claims against all parties are
not final and are “‘subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.’” 31
Here, the Court of Appeals analyzed whether the summary
judgment order satisfied the final order requirement under
§ 25-1902, but it did not discuss whether § 25-1315(1) is also
implicated in this case. As we explain, it is implicated here,
and because the district court did not certify the order as a final
judgment under § 25-1315(1), we lack appellate jurisdiction.
§ 25-1315 Is Implicated
Although this case does not involve more than one plaintiff
or defendant, it does involve multiple claims for relief, and no
party contends otherwise. Mann’s complaint sought to modify
child support and the parenting plan under the 2018 decree,
and Harrison’s answer alleged a counterclaim which sought to
modify custody. In addition, Harrison filed a counterclaim for
declaratory judgment, asking that portions of the 2018 decree
pertaining to Maleah be declared void for lack of subject mat-
ter jurisdiction. Without addressing the propriety of Harrison’s
choice to attack the validity of the decree through a declaratory
judgment action, this is plainly a case where the order of partial
summary judgment adjudicated fewer than all of the claims for
relief that were permissively joined in this modification case.
We therefore conclude that § 25-1315(1) is implicated here
because the case involves multiple claims for relief, and the
court entered an order adjudicating fewer than all of them. 32
And because § 25-1315(1) was implicated, the partial summary
judgment order resolving the declaratory judgment action was
not appealable unless the summary judgment order was prop-
erly certified under § 25-1315(1) or until all of the claims for
31
Boyd v. Cook, 298 Neb. 819, 826, 906 N.W.2d 31, 38 (2018). See
§ 25-1315(1).
32
See Clason, supra note 9.
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Cite as 312 Neb. 275relief were resolved. The Court of Appeals thus erred by not
addressing § 25-1315(1) in its jurisdictional analysis.
Both § 25-1902 and § 25-1315
Must Be Satisfied
Mann argues that certification under § 25-1315 was unnec-
essary because “[a]n order for partial summary judgment in a
custody modification which satisfies [§] 25-1902(1)(b) need
not also satisfy [§] 25-1315.” 33 His argument is contrary to
settled precedent and must be soundly rejected. To explain
why, we begin by reviewing the role that § 25-1902 plays in
our § 25-1315 jurisprudence.
[12,13] For nearly 20 years, our cases have construed the
term “final judgment” as used in § 25-1315(1) as “the func-
tional equivalent of a ‘final order’ within the meaning of
[§ 25-1902].” 34 In other words, we have looked to the final
order statute to provide the standard for finality 35 that must be
satisfied for an order to be certified as a “final judgment” under
§ 25-1315. To that end, our cases hold that “a ‘final order’ is
a prerequisite to an appellate court’s obtaining jurisdiction of
an appeal initiated pursuant to § 25-1315(1).” 36 Thus, it is a
well-settled principle in our § 25-1315 jurisprudence that to be
appealable, an order must satisfy the final order requirements
of § 25-1902 and, where implicated, § 25-1315(1). 37
33
Supplemental brief for appellant at 7.
34
Cerny, supra note 18, 273 Neb. at 805, 733 N.W.2d at 884, citing Bailey
v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916 (2003).
35
See Cerny, supra note 18, 273 Neb. at 808, 733 N.W.2d at 885 (explaining
that § 25-1315(1) requires finality “in the sense that [there] is an ultimate
disposition of an individual claim entered in the course of a multiple
claims action”).
36
Bailey, supra note 34, 265 Neb. at 546, 657 N.W.2d at 923. See, also,
Rafert, supra note 27.
37
See Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021); Rafert,
supra note 27; Guardian Tax Partners, supra note 27; Connelly v. City
of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009); Cerny, supra note 18;
Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005).
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Cite as 312 Neb. 275This principle was applied by the Court of Appeals in the
2004 case of Pioneer Chem. Co. v. City of North Platte. 38 In
that case, the appellant argued that Ҥ 25-1315 is not applicable
to special proceedings, such as condemnation actions, and
that appeals in such proceedings, irrespective of whether they
involve multiple claims or multiple parties, are governed only
by [§ 25-1902].” 39 The Court of Appeals rejected that argument
and expressly held that when an order resolves one of multiple
claims in a special proceeding, it is immediately appealable
only if the order satisfies the requirements of both § 25-1902
and § 25-1315. This court summarily affirmed.
More recently, this court has issued several opinions which
illustrate that when § 25-1315(1) is implicated, satisfying
§ 25-1902 alone is not sufficient to make an order final and
appealable. For instance, in State on behalf of Marcelo K. &
Rycki K. v. Ricky K., 40 the State filed an action to establish
child support, and the father filed a counterclaim and cross-
claim seeking to disestablish paternity as to one child and
seeking a custody order regarding the other child. The court
entered an order that disestablished paternity, and the State
filed an interlocutory appeal arguing that the order affected
a substantial right and was entered in a special proceeding.
We held that § 25-1315(1) was implicated, because the case
involved multiple parties and multiple claims for relief and the
order resolved fewer than all claims against all parties. We thus
concluded that absent § 25-1315(1) certification, we lacked
appellate jurisdiction.
As relevant to Mann’s argument, our opinion in State on
behalf of Marcelo K. & Rycki K. expressly rejected the State’s
suggestion that it was unnecessary to satisfy § 25-1315(1)
because the order of disestablishment was immediately appeal-
able as a final order under § 25-1902. We reasoned:
38
Pioneer Chem. Co. v. City of North Platte, 12 Neb. App. 720, 685 N.W.2d
505 (2004).
39
Id. at 724, 685 N.W.2d at 508.
40
State on behalf of Marcelo K. & Rycki K., supra note 27.
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Cite as 312 Neb. 275[T]he State does not explain how this would avoid the
effect of § 25-1315. That section states, “In the absence
of such determination 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 claims or parties . . . .” Even if disestablish-
ment was fully adjudicated by [the order being appealed],
it was asserted with other claims in the overall proceed-
ing. Because the [order being appealed] did not adjudicate
those other claims, it did not “terminate the action as to
any of the claims or parties,” including the disestablish-
ment claim. 41
We reached a similar conclusion in TDP Phase One v. The
Club at the Yard. 42 There, we found that § 25-1315(1) was
implicated when a forcible entry and detainer proceeding 43
was joined with actions for breach of contract and breach of
guaranty, as well as counterclaims alleging fraud and tortious
interference. When one of the parties attempted to appeal from
an order of partial summary judgment granting restitution of
the premises, we determined the order was not immediately
appealable absent proper certification under § 25-1315(1). And
because the order of partial summary judgment had not been
properly certified pursuant to § 25-1315(1), we found it unnec-
essary to analyze whether the order qualified as a final order
under § 25-1902.
We applied similar reasoning in Clason v. LOL Investments. 44
That case involved competing actions to quiet title, joined with
counterclaims for ejectment and unjust enrichment. When one
party appealed from an order of partial summary judgment that
41
Id. at 184, 912 N.W.2d at 750.
42
TDP Phase One, supra note 22.
43
See Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003)
(describing forcible entry and detainer as special proceeding).
44
Clason, supra note 9.
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Cite as 312 Neb. 275resolved only the quiet title claims, we held that § 25-1315(1)
was implicated because the case involved multiple claims for
relief and the order of summary judgment adjudicated fewer
than all such claims. We rejected the appellant’s suggestion
that satisfying § 25-1902(1)(b) made the order immediately
appealable, reasoning:
[I]n this case, we need not consider [the appellant’s] argu-
ment that the [summary judgment] order is a final order
under § 25-1902. Even assuming that it is a final order
for the reason urged by [the appellant], § 25-1315 does
not permit appeal until either the remaining claims are
resolved or the court enters judgment under § 25-1315,
accompanied by an express determination that there is no
just reason for delay of an appeal. 45
Finally, in Tyrrell v. Frakes, 46 we held that satisfying
§ 25-1902 alone was insufficient to make the order final and
appealable in a case where § 25-1315(1) was implicated. In
Tyrrell, the appellant permissively joined an application for
a writ of habeas corpus, which we have described as a spe-
cial proceeding, 47 with a petition in error. 48 The district court
quashed the habeas claim, and no appeal was taken from that
order. Several months later, the court dismissed the petition
in error, and the appellant filed a notice of appeal challenging
the denial of habeas relief within 30 days of that dismissal.
The State argued the appeal was untimely because it was filed
45
Id. at 910, 957 N.W.2d at 881.
46
Tyrrell, supra note 37.
47
See, Flora v. Escudero, 247 Neb. 260, 266, 526 N.W.2d 643, 647 (1995);
(“[h]abeas corpus is a special proceeding, civil in character, which
provides a summary remedy open to persons illegally detained”); In re
Application of Tail, Tail v. Olson, 144 Neb. 820, 827, 14 N.W.2d 840,
843-44 (1944) (“we decide that the denial of relator’s application for a
writ of habeas corpus and the refusal to allow the writ by the district
court was a final order affecting a substantial right made in a special
proceeding”).
48
See Neb. Rev. Stat. § 25-1901 (Reissue 2016).
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Cite as 312 Neb. 275more than 30 days after the order quashing the habeas claim.
We disagreed.
Our opinion in Tyrrell acknowledged that an order deny-
ing habeas relief generally qualifies as a final order entered
in a special proceeding. But we explained that because the
habeas proceeding and the petition in error had been joined in
a single case, § 25-1315(1) was also implicated. And because
no proper certification had been issued under § 25-1315(1),
we concluded the order disposing of the habeas claim did not
become final and appealable until disposition of the petition
in error.
[14] Our decisions in Tyrrell, Clason, TDP Phase One, and
State on behalf of Marcelo K. & Rycki K. are controlling and
demonstrate that in cases where § 25-1315(1) is implicated,
and no more specific statute governs the appeal, 49 an order
resolving fewer than all claims against all parties is not final
and appealable if it lacks proper § 25-1315 certification. This
is so even if the order otherwise satisfies one of the final order
categories in § 25-1902(1). Thus, Mann is simply incorrect
when he argues that § 25-1315(1) need not be satisfied so long
as the order he seeks to appeal satisfies the final order require-
ments under § 25-1902.
§ 25-1315 Can Be Implicated
in Special Proceedings
Finally, to the extent Mann can be understood to argue that
§ 25-1315(1) cannot be implicated in special proceedings,
49
See R & D Properties v. Altech Constr. Co., 279 Neb. 74, 78, 776 N.W.2d
493, 496 (2009) (explaining “[t]o the extent there is a conflict between
two statutes on the same subject, the specific statute controls over the
general statute,” and finding Neb. Rev. Stat. § 25-1315.03 (Reissue 2016),
rather than § 25-1315(1), controlled the appeal because it was more
specific). See, also, TDP Phase One, supra note 22, 307 Neb. at 802,
950 N.W.2d at 646-47 (acknowledging “[t]o the extent there is a conflict
between two statutes on the same subject, the specific statute controls
over the general,” but finding no applicable statute that conflicted with
§ 25-1315).
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Cite as 312 Neb. 275we are unpersuaded. The above-cited cases demonstrate that
§ 25-1315(1) can be implicated in civil actions, in special pro-
ceedings, and in civil actions joined with special proceedings.
And while we acknowledge that § 25-1315(1), by its terms,
applies when “more than one claim for relief is presented in
an action,” 50 our § 25-1315 cases have not construed the term
“action” as a term of art 51 that equates only to civil actions and
excludes special proceedings.
We generally construe the term “action” to mean “civil
action.” 52 And we generally consider civil actions and special
proceedings to be mutually exclusive. 53 But when the context
supports it, we have also said “[t]he term ‘action’ is a com-
prehensive one, and is applicable to almost any proceeding in
a court of justice by which an individual pursues that remedy
which the law affords.” 54 Our cases construing § 25-1315 illus-
trate that the term “action” is used in the comprehensive sense,
to broadly reference civil cases that present multiple claims for
relief or involve multiple parties.
Asking whether the order at issue was entered in an action or
a special proceeding does little to inform the threshold inquiry
of whether § 25-1315 is implicated. As already explained,
the relevant inquiry for determining whether § 25-1315(1) is
50
§ 25-1315(1) (emphasis supplied).
51
State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 614,
924 N.W.2d 664, 670 (2019) (explaining legal term of art “is a word or
phrase having a specific, precise meaning in a given specialty apart from
its general meaning in ordinary contexts”).
52
In re Interest of R.G., 238 Neb. 405, 413, 470 N.W.2d 780, 787 (1991),
disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582
N.W.2d 350 (1998).
53
See Kremer v. Rural Community Ins. Co., 280 Neb. 591, 597, 788
N.W.2d 538, 546 (2010) (“regardless of a statutory remedy’s location
within Nebraska’s statutes, actions and special proceedings are mutually
exclusive”).
54
Champion v. Hall County, 309 Neb. 55, 76, 958 N.W.2d 396, 411 (2021)
(emphasis omitted).
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Cite as 312 Neb. 275implicated turns on whether the case presents multiple claims
for relief or involves multiple parties, as well as whether the
“order or other form of decision, however designated . . . adju-
dicates fewer than all the claims or the rights and liabilities of
fewer than all the parties.” This inquiry is the same whether the
order at issue was entered in a civil action, a special proceed-
ing, or a case permissively joining the two.
We cannot ignore the reality that under Nebraska’s liberal
joinder statutes, 55 civil actions and special proceedings can
be permissively joined in the same civil lawsuit. Here, for
instance, the parties have permissively joined what is com-
monly characterized as a civil action 56 with what is commonly
characterized as a special proceeding. 57 As this case illustrates,
civil cases involving multiple claims for relief are not always
amenable to binary classification as either an action or a spe-
cial proceeding.
[15] We now expressly hold what our prior cases have
implied: Section 25-1315(1) can be implicated in civil actions,
in special proceedings, and in civil actions joined with special
proceedings. Although we remind litigants and judges that not
every order entered in a special proceeding will necessarily
implicate § 25-1315(1), 58 we reject Mann’s suggestion that
special proceedings are categorically exempted from the reach
of § 25-1315.
55
See §§ 25-701 and 25-705 (Reissue 2016).
56
See, e.g., Allied Mut. Ins. Co. v. City of Lincoln, 269 Neb. 631, 694
N.W.2d 832 (2005) (describing declaratory judgments as actions to which
§ 25-1315 would apply). But see Graham v. Beauchamp, 154 Neb. 889,
894, 50 N.W.2d 104, 107 (1951) (“[i]n an action for declaratory judgment
the matter of entering a declaratory judgment has been held to be one of
practice and procedure rather than one of jurisdiction. An action for such
a judgment or relief is a special proceeding . . .”).
57
See cases cited supra note 5.
58
See State on behalf of Marcelo K. & Rycki K., supra note 27, citing
Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017); State
v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004); Guardian Tax Partners,
supra note 27.
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Cite as 312 Neb. 275CONCLUSION
We need not determine whether the order of partial sum-
mary judgment is a final order under § 25-1902, because
even if it is, we conclude § 25-1315(1) is implicated because
the case involves multiple claims for relief and the summary
judgment order resolved fewer than all such claims. There has
been no proper certification under § 25-1315, and we therefore
lack appellate jurisdiction over this appeal, as did the Court
of Appeals. We vacate the Court of Appeals’ decision and
remand the cause with directions to dismiss the appeal for lack
of jurisdiction.
Vacated and remanded with directions.