Ryan v. Ryan , 313 Neb. 938 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/07/2023 08:05 AM CDT
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313 Nebraska Reports
RYAN V. RYAN
Cite as 313 Neb. 938Stacy Ryan et al., appellees, v. Steven Ryan,
in his individual capacity and as Personal
Representative of the Estate of Dr. Wayne
L. Ryan, deceased, et al., appellees,
and Constance Ryan, appellant.
___ N.W.2d ___
Filed April 7, 2023. No. S-22-191.
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, and this is so even
where neither party has raised the issue.
4. Final Orders: Appeal and Error. To be appealable, an order must
satisfy the final order requirements of Neb. Rev. Stat. § 25-1902(Reissue 2016) and, where implicated, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016).
5. Trusts: Final Orders. As a judicial proceeding under the Nebraska
Uniform Trust Code, a trust contest under the authority of Neb. Rev.
Stat. § 30-3856 (Reissue 2016) is considered a special proceeding for
purposes of Neb. Rev. Stat. § 25-1902 (Reissue 2016).
6. Actions: Final Orders. Neb. Rev. Stat. § 25-1315 (Reissue 2016) can
be implicated in civil actions, in special proceedings, and in civil actions
joined with special proceedings.
7. Courts: Judgments. When a trial court concludes entry of judgment
under Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is appropriate,
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Cite as 313 Neb. 938it should ordinarily make specific findings setting forth the reasons for
its order.
8. Courts: Judgments: Appeal and Error. A trial court considering cer-
tification of a final judgment under Neb. Rev. Stat. § 25-1315 (Reissue
2016) 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. As a starting
point for considering certification of a final judgment, it is appropriate
for the trial court to consider whether the claims under review for poten-
tial certification are separable from the others remaining to be adjudi-
cated and whether the nature of the claims already determined was such
that no appellate court would have to decide the same issues more than
once even if there were subsequent appeals.
9. Claims: Parties: Judgments: Final Orders: Appeal and Error.
Certification of a final judgment must be reserved for the “unusual
case” in which the costs and risks of multiplying the number of pro-
ceedings and of overcrowding the appellate docket are outbalanced by
the pressing needs of the litigants for an early and separate judgment
as to some claims or parties. The power Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016) confers upon the trial judge should be used only in the
“infrequent harsh case” as an instrument for the improved administra-
tion 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. A
court should be particularly cautious in certifying as final a judgment on
a claim which is not truly distinct from the claims on remaining issues,
for even if the certified judgment is inherently final, the facts underly-
ing the claim resulting in that judgment may be intertwined with the
remaining issues.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Order vacated, and appeal dismissed.
Daniel J. Welch and Damien J. Wright, of Welch Law Firm,
P.C., for appellant.
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RYAN V. RYAN
Cite as 313 Neb. 938Marnie A. Jensen, David A. Lopez, and Kamron T.M. Hasan,
of Husch Blackwell, L.L.P., and John A. Svoboda, of Dvorak
Law Group, L.L.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, and Freudenberg,
JJ., and Kube, District Judge.
Miller-Lerman, J.
NATURE OF CASE
Constance Ryan appeals the order of the district court for
Douglas County which, pursuant to Neb. Rev. Stat. § 25-1315(Reissue 2016), certified that a certain prior order was a final
judgment as to defendants other than Constance. Constance
claims, inter alia, that the court erred when it certified the order
as a final judgment. We conclude that the certification was an
abuse of discretion, and we therefore vacate the certification
order and dismiss the appeal for lack of jurisdiction.
STATEMENT OF FACTS
The present case arose in the context of estate planning
carried out by Dr. Wayne L. Ryan and his wife, Eileen Ryan.
The parties involved in this case include, inter alia, their five
children—Constance Ryan, Carol Ryan, Stacy Ryan, Timothy
Ryan, and Steven Ryan. As part of the estate planning, Wayne
created the Wayne L. Ryan Revocable Trust (the Trust). The
issues in this case generally revolve around the validity of
amendments that Wayne made to the Trust in 2013, 2014, and
2015, after Eileen’s death in March 2013.
The original complaint in this case was filed in the dis-
trict court on March 31, 2017, by Stacy and Stacy’s three
sons. Although Stacy’s sons are named plaintiffs in this case,
hereinafter, we generally refer to the plaintiffs collectively
as “Stacy.” Defendants named by Stacy included, inter alia,
Wayne, Constance, Carol, Timothy, and Steven in their indi-
vidual capacities; Carol was also named as a defendant in her
capacity as trustee of the Trust. Other defendants named in
the original complaint were dismissed from the action prior
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Cite as 313 Neb. 938to the time of the orders that are at issue in this appeal.
Generally, Stacy alleged that amendments Wayne made to the
Trust after Eileen’s death had the effect of making The Ryan
Foundation, a nonprofit corporation founded by Wayne and
Eileen, the sole beneficiary of the Trust. Stacy alleged that
such amendments violated a postnuptial agreement between
Wayne and Eileen that established the Trust was to benefit their
children and grandchildren, as well as The Ryan Foundation.
Stacy generally alleged that her father, Wayne; her siblings,
Constance, Carol, Timothy, and Steven; and other defendants
had taken actions that excluded her from the benefits of
the Trust.
Stacy set forth 10 causes of action in the original complaint.
Stacy provided a caption for each cause of action that described
the nature of the claim and that specified the defendant or
defendants against whom the claim was directed. The causes
of action included various tort claims and breach of contract
claims, some of which were directed solely at Wayne and some
of which were directed at varying combinations of Wayne; the
siblings, including Constance, in their individual capacities;
Carol, in her capacity as trustee; and other defendants. Stacy
also included a cause of action for declaratory judgment that
was not designated as being directed at any specific defendant
or defendants.
Wayne died on November 3, 2017. The district court there-
after granted Stacy leave to amend her complaint. Stacy
filed her first amended complaint on January 22, 2018. Stacy
revised the named defendants to reflect that, in addition to
being a defendant in his individual capacity, Steven was
a defendant in his capacity as personal representative of
Wayne’s estate, and to reflect that Carol was no longer trustee
of the Trust and that instead, Steven and First Nebraska Trust
Company were cotrustees of the Trust. In the first amended
complaint, Stacy generally repeated causes of action she had
set forth in the original complaint, with changes to reflect the
new designation of defendants. The first amended complaint
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Cite as 313 Neb. 938included nine causes of action; it did not include a cause of
action from the original complaint that was directed solely at
a defendant who was no longer named in the case.
The nine causes of action set forth by Stacy in the first
amended complaint were as follows: (1) civil forgery (against
Wayne’s estate and Stacy’s siblings); (2) undue influence
(against Wayne’s estate and Stacy’s siblings); (3) declaratory
judgment (no defendant or defendants specified); (4) breach
of covenant of good faith and fair dealing (against Wayne’s
estate); (5) constructive fraud (against Wayne’s estate and
Stacy’s siblings); (6) intentional interference with contrac-
tual relations (against Stacy’s siblings); (7) unjust enrichment
(against Wayne’s estate and the cotrustees of the Trust); (8)
promissory estoppel (against Wayne’s estate); and (9) breach
of contract (against Wayne’s estate). Certain causes of action
were also directed against two other defendants who Stacy
later dismissed from the case. In the cause of action for declar-
atory judgment, which was not designated as being directed
against any specific defendant or defendants, Stacy sought a
declaration that amendments Wayne made to the Trust follow-
ing Eileen’s death were invalid and that the operative terms of
the Trust were those in effect prior to such amendments.
Stacy was later given leave to file a second amended com-
plaint, which she filed on August 14, 2019. In the second
amended complaint, Stacy repeated the nine causes of action
that she had set forth in the first amended complaint, although
she denominated them as “counts” rather than as “causes of
action.” Stacy added three “counts” in which she contested
the validity of the amendments Wayne had made to the Trust.
She alleged that the district court had jurisdiction over these
additional counts pursuant to Neb. Rev. Stat. § 24-517(8)
(Cum. Supp. 2022), which provides that county courts have
“[c]oncurrent original jurisdiction with the district court in
matters arising under the Nebraska Uniform Trust Code.”
Stacy also alleged that she had timely filed the trust contest
under the authority of Neb. Rev. Stat. § 30-3856 (Reissue
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(NUTC) and which provides that “[a] person may commence
a judicial proceeding to contest the validity of a trust that was
revocable at the settlor’s death . . . .”
In the captions for the three new counts that formed the
trust contest, Stacy did not identify the defendant or defend­
ants against whom the counts were directed. In the first new
“count,” Stacy alleged that Wayne lacked testamentary capac-
ity when he made a restatement and amendments to the Trust
in 2013, 2014, and 2015. In the second new “count,” Stacy
alleged that Wayne was unduly influenced by Steven and Carol
to make the restatement and amendments to the Trust in 2013,
2014, and 2015. In the third and final new “count,” Stacy
alleged that the signatures purported to be Wayne’s signatures
on the restatement and amendments to the Trust in 2013, 2014,
and 2015 were forgeries. Stacy sought a declaratory judgment
that as a result of the alleged lack of testamentary capacity,
undue influence, and forgeries, the restatement and amend-
ments to the Trust in 2013, 2014, and 2015 were not valid and
should not be given effect and that instead, a restated trust
agreement from 2007 was the valid and effective instrument
governing the Trust.
Constance, separately from the other defendants, filed
an answer to Stacy’s second amended complaint in which
she admitted some of Stacy’s allegations and denied oth-
ers. Although she did not set forth an explicit counterclaim
or cross-claim, Constance “affirmatively aver[red] that some or
all of the changes to [Wayne’s] estate plan occurring after the
death of Eileen . . . were the result of either [Wayne’s] lack of
testamentary capacity or the undue influence of Steven . . . ,
Carol . . . , and/or Timothy.” Constance concluded her answer
by requesting, inter alia, dismissal of Stacy’s claims for money
damages against her and a determination of the operative trust
instrument for the Trust.
Carol, Timothy, and Steven, in his individual capacity and
as personal representative of Wayne’s estate and as cotrustee
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ter referred to collectively as “the Ryan Defendants”), filed
an answer to Stacy’s second amended complaint. The Ryan
Defendants admitted certain allegations but generally denied
Stacy’s remaining allegations. They also set forth various
affirm­ative defenses.
This case proceeded with further motions and orders, which
included Stacy’s voluntary dismissal of all defendants other
than the Ryan Defendants and Constance. Stacy also voluntarily
dismissed three counts set forth in the second amended com-
plaint—undue influence (against Wayne’s estate and Stacy’s
siblings), breach of covenant of good faith and fair deal-
ing (against Wayne’s estate), and constructive fraud (against
Wayne’s estate and Stacy’s siblings).
The district court eventually ordered the remaining parties
into mediation to resolve the issues in this case. As a result of
the mediation, Stacy and the Ryan Defendants reached a settle-
ment agreement, and in October 2021, they filed a stipulated
motion for the court to approve their settlement agreement
and to dismiss the Ryan Defendants and Stacy’s claims against
them with prejudice.
Around the time that Stacy and the Ryan Defendants filed
their stipulated motion, Constance filed two motions in the
district court. On October 5, 2021, Constance filed a “Motion
to Realign Parties and Amend Pleading” in which she moved
for an order realigning her as a plaintiff and allowing her
leave to file an amended pleading. Constance alleged that
she contested the validity of the changes Wayne made to
the Trust, whereas the Ryan Defendants were proponents of
those changes.
On October 7, 2021, Constance filed a “Motion for Review
of Settlement Agreement,” in which she requested review
of the settlement agreement between Stacy and the Ryan
Defendants pursuant to Neb. Rev. Stat. § 30-3811 (Reissue
2016). Section 30-3811(c) provides that “[a] nonjudicial set-
tlement agreement is valid only to the extent it does not
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Cite as 313 Neb. 938violate a material purpose of the trust and includes terms
and conditions that could be properly approved by the court
under [the NUTC] or other applicable law,” and § 30-3811(e)
provides that “[a]ny interested person may request the court
to approve a nonjudicial settlement agreement, to determine
whether the representation as provided in [other statutes in the
NUTC] was adequate, and to determine whether the agreement
contains terms and conditions the court could have properly
approved.” Constance alleged that the settlement agreement
between Stacy and the Ryan Defendants would require the
Trust to make distributions to Stacy; Constance further alleged
that such distributions were not authorized under the terms of
the Trust and would require modification of the Trust terms,
which modification could not be approved without consent of
all beneficiaries or a determination that the interests of non-
consenting beneficiaries were adequately protected. Constance
requested that the court order production of the settlement
agreement and determine whether it included terms that the
court could properly approve. In an order filed November 24,
the court overruled both of Constance’s motions.
On February 8, 2022, the district court filed under seal an
order in which it granted the stipulated motion filed by Stacy
and the Ryan Defendants to approve their settlement agree-
ment and to dismiss with prejudice. With regard to approval of
the settlement agreement, the court found, inter alia, that the
settlement agreement was not ambiguous, that it was enforce-
able in all respects, and that it complied with Nebraska law.
The court therefore approved the settlement agreement. With
regard to dismissal, the court found that Stacy and the Ryan
Defendants “agreed to voluntarily dismiss, with prejudice,
all claims, defenses or other requests for damages, costs, or
fees that have been or could have been brought against one
another in this lawsuit.” The court therefore dismissed “all
such claims, defenses or other requests” with prejudice. The
court specifically found that the only claims for relief against
the Ryan Defendants in any operative pleadings were those
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Cite as 313 Neb. 938set forth in Stacy’s second amended complaint. The court found
that no claims or requests for relief remained against the Ryan
Defendants, and it therefore dismissed the Ryan Defendants
from the case.
On February 23, 2022, the district court filed a “Final
Judgment” which stated that in the February 8 order it had
granted the stipulated motion of Stacy and the Ryan Defendants
for dismissal, thereby terminating all claims in this case against
the Ryan Defendants. The court further found that Stacy had
not dismissed her claims against Constance. The court there-
fore certified that “entry of this Final Judgment pursuant to . . .
§ 25-1315 is appropriate.” The court entered a final judgment
and stated that (1) Stacy was the only party who brought any
claim, counterclaim, cross-claim, or third party claim in this
matter; (2) Stacy brought her claims against multiple defend­
ants; (3) the Ryan Defendants had been dismissed from the case
with prejudice; and (4) Stacy had not dismissed Constance as a
defendant in the action and that Stacy had asserted and main-
tained claims against Constance. The court “expressly [found]
that there is no just reason for delay and that any rights and/
or liabilities related to [the Ryan Defendants] are terminated
effective as of the date of entry of this Final Judgment and that
the Final Judgment is enforceable as of the same date.” In this
certification order, the court stated that “[t]o remove any doubt
and bring finality as to [the Ryan Defendants’] status” in this
case, it was directing final judgment as to the Ryan Defendants
pursuant to § 25-1315.
Constance appeals the February 23, 2022, order.
ASSIGNMENTS OF ERROR
Constance claims that the district court erred when it
certified a final judgment as to the Ryan Defendants under
the certification statute, § 25-1315. She also claims that the
court erred when it overruled her motion to review the settle-
ment agreement pursuant to § 30-3811 and when it instead
approved the settlement agreement “under some other uniden-
tified” authority. Brief for appellant at 30.
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Cite as 313 Neb. 938STANDARDS OF REVIEW
[1,2] A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a mat-
ter of law. Mann v. Mann, 312 Neb. 275, 978 N.W.2d 606(2022). A trial court’s decision to certify a final judgment pur-
suant to § 25-1315(1) is reviewed for an abuse of discretion,
but whether § 25-1315 is implicated in a case is a question
of law which an appellate court considers de novo. Mann v.
Mann, supra.ANALYSIS
We Must Determine Whether Certification
Was Appropriate and Whether We Have
Jurisdiction Over This Appeal.
[3,4] 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, and this is so even where
neither party has raised the issue. In re Interest of K.C., ante
p. 385, 984 N.W.2d 277 (2023). To be appealable, an order
must satisfy the final order requirements of Neb. Rev. Stat.
§ 25-1902 (Reissue 2016) and, where implicated, § 25-1315(1).
Mann v. Mann, supra.Prior to this appeal being moved to this court’s docket, the
Nebraska Court of Appeals performed a jurisdictional review
and identified an issue regarding the propriety of the district
court’s certification of a final judgment. The Court of Appeals
filed a minute entry on April 28, 2022, in which it stated that
in the February 23 order, the district court “merely invoked the
language of § 25-1315(1) that there is no just reason for delay,
but made no specific findings in support of its § 25-1315(1)
determination.” The Court of Appeals directed the parties to
address the jurisdictional issue in their briefs.
In her brief for appellant, Constance responded to the Court
of Appeals’ minute entry by assigning error to the district court’s
certification of final judgment as to the Ryan Defendants.
In their brief for appellees, the Ryan Defendants argued that
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lack jurisdiction over Constance’s appeal for other reasons.
Because the certification issue implicates our appel-
late jurisdiction, we consider that issue before addressing
Constance’s other assignments of error. As set forth below,
we determine that the certification was not appropriate, and
because we lack jurisdiction for that reason, we do not further
address Constance’s other assignments of error or the Ryan
Defendants’ argument that Constance could not appeal the dis-
trict court’s orders.
Section 25-1315 Applies in This Case Which
Combined a Special Proceeding With a Civil
Action and Involved Multiple Parties.
We must first determine whether § 25-1315 applies in this
case. As a general matter, a certification order under § 25-1315
permits an appeal where one would not ordinarily lie. Section
25-1315(1) 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.
Section 25-1315(1) is implicated where there are multiple
causes of action or multiple parties and the court enters a
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action or parties. Tegra Corp. v. Boeshart, 311 Neb. 783, 976
N.W.2d 165 (2022). In the absence of an express determination
that there is no just reason for delay and upon an express direc-
tion for the entry of judgment, orders, however designated,
adjudicating fewer than all claims or the rights of fewer than
all the parties are not final. Id. One may bring an appeal pursu-
ant to § 25-1315(1) only when (1) multiple causes of action or
multiple parties are present, (2) the court enters a final order
within the meaning of § 25-1902 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. Tegra Corp. v. Boeshart, supra. Absent an entry of
judgment under § 25-1315, no appeal will lie unless all claims
have been disposed as to all parties in the case. Tegra Corp. v.
Boeshart, supra.[5] Because § 25-1315 specifically applies “in an action,”
we first consider the nature of this case in order to determine
the applicability of § 25-1315. Stacy began this case in 2017
by setting forth several causes of action that could be described
as tort or contract claims and that would generally be consid-
ered part of a civil action under chapter 25 of the Nebraska
Revised Statutes. In the operative second amended complaint,
Stacy added three new “counts” that she alleged were a trust
contest brought under the authority of § 30-3856, which is
part of the NUTC. As a judicial proceeding under the NUTC,
a trust contest under the authority of § 30-3856 is considered
a special proceeding for purposes of § 25-1902. See In re
Trust of Rosenberg, 269 Neb. 310, 693 N.W.2d 500 (2005)
(proceeding pursuant to NUTC to remove trustee is special
proceeding within meaning of § 25-1902). Therefore, this case
as presented by Stacy in the district court combined a special
proceeding with a civil action.
[6] In Mann v. Mann, 312 Neb. 275, 294, 978 N.W.2d 606,
619-20 (2022), we recognized that under Nebraska statutes,
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joined] with what is commonly characterized as a special
proceeding” and that therefore, “civil cases involving multiple
claims for relief are not always amenable to binary classifica-
tion as either an action or a special proceeding.” We therefore
reviewed our precedent applying § 25-1315, and we explicitly
held that § 25-1315 “can be implicated in civil actions, in
special proceedings, and in civil actions joined with special
proceedings.” Mann v. Mann, 312 Neb. at 294, 978 N.W.2d
at 620.
To the extent that the special proceeding in this case was
brought under the authority of the NUTC, we note that appeals
in proceedings under the NUTC are subject to Neb. Rev. Stat.
§ 30-3821 (Reissue 2016), which provides, “Appellate review
under [the NUTC] shall be governed by section 30-1601.”
Neb. Rev. Stat. § 30-1601(1) (Cum. Supp. 2022) provides in
relevant part that in matters arising under the NUTC, “appeals
may be taken to the Court of Appeals in the same manner
as an appeal from district court to the Court of Appeals.”
Recently, in In re Estate of Scaletta, 312 Neb. 953, 960, 981
N.W.2d 568, 573 (2022), we “read § 30-1601(1) as incorporat-
ing the rules of appealability in civil matters, including . . .
§ 25-1902.” Applying the same reasoning by which we previ-
ously read § 30-1601(1) as incorporating § 25-1902, we also
read § 30-1601(1) as incorporating § 25-1315 where applicable
in appeals involving a proceeding under the NUTC.
Because § 25-1315 can be implicated in civil actions joined
with special proceedings and, where applicable, to appeals in
proceedings under the NUTC, we determine that § 25-1315
is applicable in the present case in which a civil action was
joined with a special proceeding under the NUTC. The instant
case involves some “claim[s] for relief” and “multiple par-
ties” as understood in § 25-1315. By its language, § 25-1315
applies “[w]hen more than one claim for relief is presented
. . . or when multiple parties are involved.” This case involves
multiple parties, including Stacy and the several defendants
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miss some, but not all, of the named defendants. Because, inter
alia, multiple parties are involved, we determine that § 25-1315
applies in this case, and we turn to applying the requirements
of § 25-1315 to this case.
District Court Did Not Make Adequate Specific
Findings to Support Certification
Under § 25-1315.
As stated above, the Court of Appeals ordered the parties
to address the certification issue in part because it determined
that the certification order filed by the district court “merely
invoked the language of § 25-1315(1) that there is no just rea-
son for delay, but made no specific findings in support of its
§ 25-1315(1) determination.” We agree that the findings in the
district court’s order were conclusory and were not adequately
specific to support its certification and that they further failed
to facilitate appellate review of the certification.
[7] We have stated that “when a trial court concludes entry
of judgment under § 25-1315(1) is appropriate, it should ordi-
narily make specific findings setting forth the reasons for its
order.” Rafert v. Meyer, 298 Neb. 461, 468, 905 N.W.2d 30,
36 (2017). We noted that the district court’s order in Rafert
v. Meyer “merely used the language of the statute and did
not explain why certification was appropriate” and stated that
“[w]hile the absence of detailed findings by the trial court does
not require automatic dismissal, it is difficult to accord defer-
ence to a court’s decision when there is no reasoning to support
it.” 298 Neb. at 468, 905 N.W.2d at 36.
Although the district court in this case “expressly [found]
that there is no just reason for delay,” it did not make more
specific findings regarding why certification of a final judg-
ment as to the Ryan Defendants was appropriate. As we noted
in Rafert v. Meyer, supra, this failure does not require auto-
matic dismissal of this appeal, but we take this opportunity
to reiterate the need for more specific findings to facilitate
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the reasons for certification are not obvious from the record.
Despite the absence of findings, we review the record to deter-
mine whether certification was warranted in this case.
Certification Pursuant to § 25-1315 in This
Case Was an Abuse of Discretion.
[8] In determining whether certification is warranted, a trial
court must take into account judicial administrative interests
as well as the equities involved. Rafert v. Meyer, supra. A
trial court considering certification of a final judgment under
§ 25-1315 should weigh factors such as (1) the relationship
between the adjudicated and unadjudicated claims; (2) the pos-
sibility 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 solvency considerations, shortening the
time of trial, frivolity of competing claims, expense, and the
like. Rafert v. Meyer, supra. As a starting point for considering
certification of a final judgment, it is appropriate for the trial
court to consider whether the claims under review for poten-
tial certification are separable from the others remaining to be
adjudicated and whether the nature of the claims already deter-
mined was such that no appellate court would have to decide
the same issues more than once even if there were subsequent
appeals. Id.[9] We have emphasized that 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
the pressing needs of the litigants for an early and separate
judgment as to some claims or parties. TDP Phase One v.
Club at the Yard, 307 Neb. 795, 950 N.W.2d 640 (2020). The
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Cite as 313 Neb. 938power § 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. TDP Phase One v. Club
at the Yard, supra. A court should be particularly cautious in
certifying as final a judgment on a claim which is not truly
distinct from the claims on remaining issues, for even if the
certified judgment is inherently final, the facts underlying
the claim resulting in that judgment may be intertwined with
the remaining issues. Id.In this regard, we warned in Cerny v. Todco Barricade Co.,
273 Neb. 800, 813, 733 N.W.2d 877, 888 (2007), that “[i]n a
case in which the issues are intertwined, the trial court might
wish to reconsider its dismissal of certain claims” and cer-
tification thereof prior to creation of a complete fact record
developed at trial. We further noted that “[a] complete factual
record will also assist in final appellate review and decrease
the likelihood of inconsistent decisions,” id., and we stated
that “[w]hen 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 cir-
cumstances,”’” id. at 813, 733 N.W.2d at 888-89.
Constance generally argues that the settlement agreement
and the district court’s dismissal order resolved only the tort
and contract claims against the Ryan Defendants and that
the trust contest challenging the validity of the amendments
to the Trust made by Wayne after Eileen’s death was not
resolved and remained pending. She argues that there was
no reason given for why the Ryan Defendants should be dis-
missed while the trust issues remained pending. In their brief
for appellees, the Ryan Defendants argue that the issue of
the validity of the trust does not remain pending because the
trust contest was dismissed with all the other claims against
the Ryan Defendants. The Ryan Defendants generally argue
that certification was proper to provide them finality because
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Cite as 313 Neb. 938the remaining claims relate solely to Constance. We are not
persuaded by the Ryan Defendants’ arguments.
We note that the content of the district court order approving
the settlement agreement and dismissing the Ryan Defendants
stated “all claims . . . or other requests for damages, costs, or
fees that have been or could have been brought against” the
Ryan Defendants in this action were dismissed. This order
does not inform us whether the trust was valid. However, we
need not resolve whether the settlement agreement and the
district court’s dismissal order did or could resolve the trust
contest, because as discussed below, we determine that certifi-
cation was not appropriate based on the claims that the parties
agree remain.
Although Constance and the Ryan Defendants disagree
regarding whether the trust contest remains, they appear to
agree that certain “counts,” including counts 1 and 6, to the
extent directed against Constance, remain. Our review of the
record, and in particular the allegations in the second amended
complaint, shows that several counts, including counts 1 and
6, were alleged against the “Ryan Children Defendants.” Stacy
defined the “Ryan Children Defendants” as being Constance,
Carol, Timothy, and Steven. Count 1 pertains to alleged civil
forgery. Count 6 pertains to an alleged intentional interfer-
ence with contractual relations. The pleading does not specify
what role the various “Ryan Children Defendants,” including
Constance, played in each of these counts that were leveled
at all of them. The record does not permit us to tease out the
separate actions of the various “Ryan Children Defendants,”
and at this point, we must view all their alleged actions as
intertwined. Because the remaining claims against Constance
are intertwined with the same claims against the other three
siblings, Carol, Timothy, and Steven, who are among the Ryan
Defendants and the “Ryan Children Defendants,” there is no
apparent basis in the record before us to determine that the
remaining claims alleged against Constance are truly distinct
from the same claims against the other three siblings.
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Cite as 313 Neb. 938As noted above, in Rafert v. Meyer, 298 Neb. 461, 470,
905 N.W.2d 30, 37 (2017), we stated an appropriate starting
point when considering certification is “to consider whether
the claims under review are separable from the others remain-
ing to be adjudicated and whether the nature of the claims
already determined was such that no appellate court would
ever have to decide the same issues more than once even if
there were subsequent appeals.” We find this consideration
instructive. It is unclear why this case would be considered
the “unusual case” in which the costs and risks of multiplying
the number of proceedings and of overcrowding the appellate
docket are outbalanced by the pressing needs of the litigants
for an early and separate judgment as to some claims or par-
ties. In this regard, we note that although the Ryan Defendants
sought certification, they did not appeal. Because the record
shows that the issues in the remaining claims were intertwined
with claims that were dismissed and the record does not show
that the remaining claims are truly distinct, we conclude that
certification was not appropriate and that the district court
abused its discretion when it certified a final judgment as to
the Ryan Defendants.
An appellate court’s jurisdiction to review the merits of
an appeal when a final judgment has been certified pursuant
to § 25-1315 “depends on whether it was properly certified.”
See Cerny v. Todco Barricade Co., 273 Neb. 800, 808, 733
N.W.2d 877, 885 (2007). Where § 25-1315(1) “was erroneously
applied, there is no final order,” Cerny v. Todco Barricade Co.,
273 Neb. at 816, 733 N.W.2d at 890, and, therefore, no juris-
diction for an appeal. Where certification is the result of an
abuse of discretion, the proper action of an appellate court is to
vacate the certification order and dismiss the appeal for lack of
jurisdiction. See Rafert v. Meyer, supra.CONCLUSION
We conclude that the district court abused its discretion in
its February 23, 2022, order in which, under § 25-1315, it
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Cite as 313 Neb. 938certified the February 8 order approving settlement and dis-
missal of the Ryan Defendants as a final judgment as to the
Ryan Defendants. We therefore vacate the court’s order certify-
ing a final judgment, and because there is no final judgment,
we dismiss the appeal for lack of jurisdiction.
Order vacated, and appeal dismissed.
Stacy, Funke, and Papik, JJ., not participating.