Herman Trust v. Brashear 711 Trust ( 2015 )

Decisions of the Nebraska Court of Appeals
758 22 NEBRASKA APPELLATE REPORTS
Herman Trust, appellee, v. Brashear
711 Trust, appellant.
Herman Trust, appellee, v.
Brashear LLP, appellant.
Herman Trust, appellee, v. K ermit A.
Brashear, appellant.
___ N.W.2d ___
Filed February 17, 2015. Nos. A-13-895 through A-13-897.
1. Judgments: Jurisdiction. When a jurisdictional question does not involve a
factual dispute, the issue is a matter of law.
2. 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.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
4. Final Orders: Appeal and Error. An order is final for purposes of appeal if it
affects a substantial right and (1) determines the action and prevents a judgment,
(2) is made during a special proceeding, or (3) is made on summary application
in an action after judgment is rendered.
5. Final Orders: Motions to Dismiss. A denial of a motion to dismiss is not a
final order.
6. Summary Judgment: Final Orders: Appeal and Error. A denial of a motion
for summary judgment is not a final order and therefore is not appealable.
7. Final Orders: Appeal and Error. To fall within the collateral order doctrine,
an order must (1) conclusively determine the disputed question, (2) resolve an
important issue completely separate from the merits of the action, and (3) be
effectively unreviewable on appeal from a final judgment.
8. ____: ____. The collateral order doctrine is a narrow exception that should never
be allowed to swallow the general rule that a party is entitled to a single appeal,
to be deferred until final judgment has been entered.
9. Courts: Final Orders: Appeal and Error. Because the collateral order doctrine
has its source in decisions of the U.S. Supreme Court, Nebraska courts review
cases decided by the federal courts for guidance.
10. Final Orders: Appeal and Error. The mere identification of some interest that
would be irretrievably lost has never sufficed to meet the third requirement of
the collateral order doctrine—that an order be effectively unreviewable on appeal
from a final judgment.
11. Immunity: Final Orders: Appeal and Error. The right to avoid litigation
pursuant to a claim for governmental immunity from suit is reviewable under
the collateral order doctrine on an interlocutory appeal when the facts are
not disputed.
Decisions of the Nebraska Court of Appeals
HERMAN TRUST v. BRASHEAR 711 TRUST 759
Cite as 22 Neb. Ct. App. 758
12. Immunity: Liability. A claim for governmental immunity is based in immunity
from suit and is not simply a defense against liability, which immunity is effec-
tively lost if a case is erroneously permitted to go to trial.
13. Immunity: Public Officers and Employees. Governmental immunity is the
entitlement not to stand trial or face the other burdens of litigation; requiring an
official with a colorable immunity claim to defend a suit for damages would be
disruptive of effective government and would cause harm that the immunity was
meant to avoid.
14. Judgments: Final Orders. Whether a right is adequately vindicable or effec-
tively reviewable cannot be answered without a judgment about the value of
the interests that would be lost through rigorous application of a final judg-
ment requirement.
15. Constitutional Law: Statutes: Immunity: Final Orders. A policy embodied in
a constitutional or statutory provision entitling a party to immunity from suit is of
such importance that it justifies a departure from the operation of ordinary final
judgment principles.
16. Final Orders: Compromise and Settlement: Appeal and Error. Rights under
private settlement agreements can be adequately vindicated on appeal from
final judgment.
17. Compromise and Settlement: Appeal and Error. A refusal to enforce a settle-
ment agreement claimed to shelter a party from suit altogether does not supply
the basis for immediate appeal.
18. Courts: Appeal and Error. The U.S. Supreme Court has instructed courts of
appeals to view claims of a right not to be tried with skepticism, if not a jaun-
diced eye.
19. Limitations of Actions: Words and Phrases. A tolling agreement is an agree-
ment between a potential plaintiff and a potential defendant by which the defend­
ant agrees to extend the statutory limitations period on the plaintiff’s claim,
usually so that both parties will have more time to resolve their dispute with-
out litigation.
20. Trial: Judgments: Appeal and Error. It is not mere avoidance of a trial, but
avoidance of a trial that would imperil a substantial public interest, that counts
when asking whether an order is effectively unreviewable if review is to be left
until later.
Appeals from the District Court for Douglas County:
Timothy P. Burns, Judge. Appeals dismissed.
Steven D. Davidson, of Baird Holm, L.L.P., for appellants.
James P. Waldron and Christopher J. Tjaden, of Gross &
Welch, P.C., L.L.O., for appellee.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Decisions of the Nebraska Court of Appeals
760 22 NEBRASKA APPELLATE REPORTS
Bishop, Judge.
The present interlocutory appeals arise out of three separate
but related actions filed by the Herman Trust against Kermit
A. Brashear; Brashear LLP, his law practice; and the Brashear
711 Trust (the 711 Trust), a nominee trust for the benefit of
Brashear and his wife (collectively the Brashears), to recover
on a promissory note and personal guaranties executed by the
Brashears. The Brashears filed separate motions to dismiss
in each case, claiming that the lawsuits were filed prior to
the expiration or termination of a tolling agreement executed
by the Brashears. The district court overruled the motions to
dismiss, finding that the tolling agreement applied to profes-
sional negligence claims only and not the claims at issue. The
Brashears now appeal from the district court’s order denying
their motions to dismiss, claiming this court has appellate juris-
diction to review the district court’s order under the collateral
order doctrine. We disagree and dismiss all three appeals for
lack of jurisdiction.
BACKGROUND
Brashear is a licensed Nebraska attorney and the sole
equity partner of Brashear LLP. Brashear provided legal
services to R.L. Herman, his family, and his business inter-
ests for more than 30 years. Herman served as trustee of the
Herman Trust.
On January 17, 2011, the 711 Trust executed and delivered
to the Herman Trust a promissory note (the Note) in the prin-
cipal amount of $764,000, with an interest rate of 5 percent
per annum. The Note provided that the commercial building
owned by the 711 Trust, and occupied by Brashear LLP, would
be used as collateral for the loan. Pursuant to the Note, it was
to be repaid in equal monthly interest-only payments com-
mencing on February 17. The principal was not required to be
repaid until the sale of the building, until the death of Brashear,
or until October 12, 2012, whichever occurred first. The Note
provided that upon the happening of one of those events, the
repayment of the full principal amount plus all accrued interest
was due within 30 days.
Decisionsof the Nebraska Court of Appeals
HERMAN TRUST v. BRASHEAR 711 TRUST 761
Cite as 22 Neb. Ct. App. 758
In connection with the Note, on January 17, 2011, Brashear
LLP and Brashear, individually, each executed a personal guar-
anty of the Note, agreeing to unconditionally and irrevocably
guarantee the full and timely payment of the Note by the
711 Trust.
Brashear prepared the loan documents utilized in connection
with this transaction.
Sometime in August 2012, the Herman Trust retained new
legal counsel, which provided the Herman Trust with advice
regarding the representation provided to the Herman Trust
by Brashear. The Herman Trust’s new counsel opined that
Brashear failed to meet the applicable standard of care for
a transactional attorney with respect to the loan transaction
and the documents prepared by Brashear in connection with
the transaction.
On January 16, 2013, a tolling agreement was entered
into between Herman (as trustee of the Herman Trust),
Brashear, and Brashear LLP. The 711 Trust was not a party
to the tolling agreement. The tolling agreement provided that
the parties
desire[d] to defer immediate commencement of any liti-
gation by Herman against . . . Brashear or Brashear
LLP arising out of the alleged professional negligence of
. . . Brashear in providing legal services and counsel to
Herman, in order to give the parties hereto time to con-
duct additional and further discussion and negotiations,
outside of direct litigation.
Pursuant to the agreement, Brashear and Brashear LLP
waived and agreed not to assert the defense of the statute
of limitations, and the parties agreed that the running of any
statute of limitations or statute of repose would be tolled for
1 year or until the agreement was terminated by 30 days’
written notice.
Less than 2 months later, on March 7, 2013, the Herman
Trust filed three separate complaints against the 711 Trust,
Brashear LLP, and Brashear. In its complaint against the 711
Trust, the Herman Trust alleged that the 711 Trust defaulted
on the Note for failure to make payments, that the Herman
Decisions of the Nebraska Court of Appeals
762 22 NEBRASKA APPELLATE REPORTS
Trust was owed the principal sum of $764,000 plus accrued
interest in the amount of $15,278.90, and that the Herman
Trust had made a demand for payment, but that the amount
owed remained unpaid. The Herman Trust’s separate com-
plaints against Brashear and Brashear LLP sought to recover
the unpaid amount pursuant to their personal guaranties exe-
cuted in connection with the Note.
On April 17, 2013, the 711 Trust, Brashear LLP, and Brashear
each filed a motion to dismiss, alleging that the district court
lacked subject matter jurisdiction, that the complaint failed to
state a claim, and that the Herman Trust failed to join neces-
sary parties. The basis for each motion was that the tolling
agreement prohibited the filing of the lawsuits.
A hearing on the motions was held on October 1, 2013.
The court received into evidence affidavits and exhibits from
the parties and treated the motions to dismiss as motions for
summary judgment. The court entered an order on October
11, overruling the motions filed in each case. The court con-
cluded that the Herman Trust’s complaints sought to recover
on breach of contract claims and that the tolling agreement
applied only to professional negligence claims. The court also
found that although the evidence in the three separate actions
overlapped, each of the Herman Trust’s complaints advanced
separate theories of recovery, and that therefore dismissal for
failure to join a necessary party was not proper. The court
granted a motion to consolidate the three cases with respect to
discovery only.
The 711 Trust, Brashear LLP, and Brashear each now appeal
from the order denying their motions to dismiss, which we
consolidated for purposes of appeal.
ASSIGNMENTS OF ERROR
The Brashears assign as error on appeal that (1) the district
court erred in denying the motions to dismiss, (2) the district
court erred in failing to conclude that the tolling agreement
barred the filing of the Herman Trust’s contract claims on the
Note and guaranty, and (3) the district court erred in finding
that the Herman Trust’s claim on the Note and guaranty did
Decisionsof the Nebraska Court of Appeals
HERMAN TRUST v. BRASHEAR 711 TRUST 763
Cite as 22 Neb. Ct. App. 758
not constitute litigation arising out of the alleged professional
negligence of Brashear.
STANDARD OF REVIEW
[1] When a jurisdictional question does not involve a factual
dispute, the issue is a matter of law. Kelliher v. Soundy, 288
Neb. 898, 852 N.W.2d 718 (2014).
ANALYSIS
[2-4] 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. Williams v. Baird, 273
Neb. 977, 735 N.W.2d 383 (2007). For an appellate court to
acquire jurisdiction of an appeal, there must be a final order
entered by the court from which the appeal is taken; con-
versely, an appellate court is without jurisdiction to entertain
appeals from nonfinal orders. Kelliher, supra. An order is final
for purposes of appeal if it affects a substantial right and (1)
determines the action and prevents a judgment, (2) is made
during a special proceeding, or (3) is made on summary appli-
cation in an action after judgment is rendered. StoreVisions
v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271
(2011), modified on denial of rehearing 281 Neb. 978, 802
N.W.2d 420.
[5-7] The present appeals were taken from the district
court’s order overruling three motions to dismiss for lack of
subject matter jurisdiction and for failure to state a claim,
which were converted to motions for summary judgment. A
denial of a motion to dismiss is not a final order. See id. See,
also, Qwest Bus. Resources v. Headliners–1299 Farnam, 15
Neb. Ct. App. 405, 727 N.W.2d 724 (2007). Similarly, a denial
of a motion for summary judgment is not a final order and
therefore is not appealable. Cerny v. Longley, 266 Neb. 26, 661
N.W.2d 696 (2003). The Brashears concede that they are not
appealing from a final order or one made in a special proceed-
ing, but contend that we have jurisdiction to review the present
appeals under the collateral order doctrine, an exception to the
final order rule. To fall within the collateral order doctrine, an
order must (1) conclusively determine the disputed question,
Decisions of the Nebraska Court of Appeals
764 22 NEBRASKA APPELLATE REPORTS
(2) resolve an important issue completely separate from the
merits of the action, and (3) be effectively unreviewable on
appeal from a final judgment. StoreVisions, supra.
[8,9] Our Supreme Court and the U.S. Supreme Court
have emphasized the modest scope of the collateral order
doctrine, explaining that it is a “‘“narrow exception”’” that
should “‘never be allowed to swallow the general rule . . .
that a party is entitled to a single appeal, to be deferred until
final judgment has been entered . . . .’” Hallie Mgmt. Co. v.
Perry, 272 Neb. 81, 86, 718 N.W.2d 531, 535 (2006) (quot-
ing Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S.
863, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994)). In Nebraska,
the collateral order doctrine has been applied in limited cir-
cumstances. The Nebraska Supreme Court has only utilized
the doctrine to review interlocutory appeals from: a district
court order canceling a notice of lis pendens against property
in which the appellant claimed title, Kelliher v. Soundy, 288
Neb. 898, 852 N.W.2d 718 (2014); a district court’s denial of
a motion to dismiss based upon a finding that an Indian tribe
waived its claim for sovereign immunity, StoreVisions, supra;
an order granting disqualification of counsel on the basis of
prior representation of an adverse party, Jacob North Printing
Co. v. Mosley, 279 Neb. 585, 779 N.W.2d 596 (2010); and a
denial of a claim for qualified immunity, Williams v. Baird,
273 Neb. 977, 735 N.W.2d 383 (2007). Because the collateral
order doctrine has its source in decisions of the U.S. Supreme
Court, Nebraska courts review cases decided by the federal
courts for guidance. See Kelliher, supra.
[10] In considering the three requirements for an order
to fall within the collateral order doctrine as set forth in
StoreVisions, supra, we find that the first two conditions are
met in this case: (1) The trial court did conclusively determine
the disputed question of whether the tolling agreement should
prevent all litigation, and (2) by doing so, the trial court did
resolve an important issue completely separate from the mer-
its of the action (default on loan). Accordingly, our analy-
sis focuses on the third requirement of the collateral order
doctrine, which is whether the district court’s order denying
the Brashears’ motions to dismiss pursuant to the tolling
Decisions of the Nebraska Court of Appeals
HERMAN TRUST v. BRASHEAR 711 TRUST 765
Cite as 22 Neb. Ct. App. 758
agreement would be effectively unreviewable on appeal from
a final judgment. In Hallie Mgmt. Co., supra, the Nebraska
Supreme Court concluded that a discovery order compel-
ling disclosure of documents claimed to be protected by the
attorney-client privilege and work product doctrine did not
meet the third condition of the collateral order doctrine. In
making this determination, the court explained that although
harm may occur in delaying review of an erroneous discov-
ery order to disclose privileged information (because delayed
appellate review would not eliminate breach of confidential-
ity), such harm was outweighed by the delay and disruption
that would occur in the litigation process if the court were to
allow appeals from every discovery order claimed to implicate
privilege. The court explained that almost every pretrial or
trial order might be called “‘“effectively unreviewable”’” in
the sense that relief from error cannot rewrite history, and that
appellate reversal upon a final judgment might only “‘imper-
fectly’” repair the burden to litigants. Hallie Mgmt. Co. v.
Perry, 272 Neb. 81, 87, 718 N.W.2d 531, 535 (2006) (quot-
ing Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S.
863, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994)). However, the
mere identification of some interest that would be “‘“irretriev-
ably lost”’” has “‘never sufficed to meet the third [require-
ment of the collateral order doctrine].’” Id. at 87, 718 N.W.2d
at 536. In the case of a discovery order to disclose privileged
information, on appeal from a final judgment, the appellate
court could determine whether the disclosure was erroneously
compelled, and reverse the judgment and order a new trial
prohibiting the use of the privileged documents or evidence
obtained as a result of their disclosure, as an adequate remedy.
See Hallie Mgmt. Co., supra.
[11-13] The Brashears equate their purported right to avoid
litigation to a claim for governmental immunity from suit, the
latter of which courts have determined is reviewable under
the collateral order doctrine on an interlocutory appeal when
the facts are not disputed, because immunity from suit is an
important right that would be effectively lost on appeal from
a final judgment. See, e.g., StoreVisions v. Omaha Tribe of
Neb., 281 Neb. 238, 795 N.W.2d 271 (2011), modified on
Decisions of the Nebraska Court of Appeals
766 22 NEBRASKA APPELLATE REPORTS
denial of rehearing 281 Neb. 978, 802 N.W.2d 420 (jurisdic-
tion to review district court’s order overruling Indian tribe’s
motion to dismiss based on finding that tribe had waived its
sovereign immunity); Williams v. Baird, 273 Neb. 977, 735
N.W.2d 383 (2007) (jurisdiction to review district court’s
order overruling Department of Health and Human Services
employee’s motion for summary judgment on employee’s
claimed qualified immunity defense). The stated rationale
behind granting interlocutory review to those types of orders
is because a claim for governmental immunity “is based in
immunity from suit and is not simply a defense against liabil-
ity,” StoreVisions, 281 Neb. at 243-44, 795 N.W.2d at 277,
which immunity “‘is effectively lost if a case is erroneously
permitted to go to trial,’” Puerto Rico Aqueduct and Sewer
Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113
S. Ct. 684, 121 L. Ed. 2d 605 (1993). Governmental immu-
nity is the “‘entitlement not to stand trial or face the other
burdens of litigation’”; requiring an official with a colorable
immunity claim to defend a suit for damages would be disrup-
tive of effective government and would cause harm that the
immunity was meant to avoid. Digital Equipment Corp., 511
U.S. at 870. See, also, Nixon v. Fitzgerald, 457 U.S. 731, 102
S. Ct. 2690, 73 L. Ed. 2d 349 (1982) (denial of presidential
immunity is immediately appealable because of unique posi-
tion of President’s office, rooted in separation of powers and
supported by our history).
Constitutional or statutory immunity from suit, however,
has been viewed differently than agreements not to be sued
when considered under the collateral order doctrine. The U.S.
Supreme Court has previously declined to extend the ration­
ale for granting interlocutory review of immunity claims
to a private settlement agreement under which one party
claimed it was provided with a right not to be sued. In Digital
Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 866,
114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994), the defendant
unsuccessfully attempted to equate its claimed “‘right not to
go to trial’” under a settlement agreement to governmental
immunity from suit, in order to obtain interlocutory appel-
late review under the collateral order doctrine. In Digital
Decisionsof the Nebraska Court of Appeals
HERMAN TRUST v. BRASHEAR 711 TRUST 767
Cite as 22 Neb. Ct. App. 758
Equipment Corp., the parties entered into a settlement agree-
ment wherein the defend­ant agreed to pay the plaintiff a sum
of money for the right to use a trade name and corresponding
trademark, in exchange for a waiver of all damages and dis-
missal of the suit. Several months later, the trial court granted
the plaintiff’s motion to vacate the dismissal and rescind the
settlement agreement for alleged misrepresentation of material
facts during settlement negotiations. The defendant appealed
from the order permitting the case to proceed, claiming that
it had a “‘right not to stand trial altogether’” pursuant to the
settlement agreement and that such a right per se satisfied
the third requirement of the collateral order doctrine. Id., 511
U.S. at 869.
[14-16] The U.S. Supreme Court rejected the defendant’s
argument and concluded the third requirement of the collat-
eral order doctrine (that decision would be effectively unre-
viewable on appeal from final judgment) was not met by the
defendant’s assertion of a “‘right not to stand trial’” under the
settlement agreement. Id. With respect to the third require-
ment, the Supreme Court stated, “[W]hether a right is ‘ade-
quately vindicable’ or ‘effectively reviewable,’ simply cannot
be answered without a judgment about the value of the inter-
ests that would be lost through rigorous application of a final
judgment requirement.” Id., 511 U.S. at 878-79. The Supreme
Court differentiated the privately conferred right claimed by
the defendant from a “policy . . . embodied in a constitutional
or statutory provision entitling a party to immunity from suit
(a rare form of protection),” concluding the latter was of such
importance that it justified a departure from the operation of
ordinary final judgment principles, while the former did not.
Id., 511 U.S. at 879 (emphasis supplied). Although the defend­
ant argued that settlement agreement “immunities” should be
reviewed on collateral order appeal due to the public policy
favoring voluntary resolution of disputes, the Supreme Court
disagreed, stating:
It defies common sense to maintain that parties’ readi-
ness to settle will be significantly dampened (or the
corresponding public interest impaired) by a rule that a
district court’s decision to let allegedly barred litigation
Decisions of the Nebraska Court of Appeals
768 22 NEBRASKA APPELLATE REPORTS
go forward may be challenged as a matter of right only
on appeal from a judgment for the plaintiff’s favor.
Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S.
863, 881, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994). The
Court accordingly concluded that the privately claimed right
to avoid trial under the settlement agreement was not an
important enough right to justify an immediate appeal and that
“rights under private settlement agreements can be adequately
vindicated on appeal from final judgment.” Id., 511 U.S.
at 869.
[17] The Supreme Court in Digital Equipment Corp. dis-
cussed that the defendant asserting its right to avoid trial
under the settlement agreement had the “unenviable task” of
explaining why other rights that might fairly be said to include
an implicit “‘right to avoid trial’” aspect are less in need of
protection by immediate review, or more readily vindicated
on appeal from final judgment, than the claimed privately
negotiated right to be free from suit. Id., 511 U.S. at 875. The
Supreme Court cited other examples of unreviewable inter-
locutory appeals by parties who also could fairly be consid-
ered to have a right to avoid trial: a party that once prevailed
at trial and then pleads res judicata, a party who seeks shelter
under the statute of limitations, or a party not subject to a
claim on which relief could be granted. See Digital Equipment
Corp., supra. The Court continued that to ground a ruling “on
whether this settlement agreement in terms confers the prized
‘right not to stand trial’ (a point [the plaintiff] by no means
concedes) would flout our own frequent admonitions . . . that
availability of collateral order appeal must be determined at
a higher level of generality.” Id., 511 U.S. at 876-77. The
Court explained that if it granted review of the order denying
enforcement of the settlement agreement in Digital Equipment
Corp., then “any district court order denying effect to a settle-
ment agreement could be appealed immediately.” 511 U.S.
at 877. The Court therefore held that “a refusal to enforce a
settlement agreement claimed to shelter a party from suit alto-
gether does not supply the basis for immediate appeal.” Id.,
511 U.S. at 884.
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 758
[18] In the instant case, similar to the argument advanced
by the defendant in Digital Equipment Corp., supra, the
Brashears contend that the district court’s order permitting
the Herman Trust’s lawsuits to proceed would be effectively
unreviewable on appeal from a final judgment because the
tolling agreement provided them with a “right to avoid litiga-
tion during the tolling period” which will be “irretrievably
lost” without an immediate appeal “to protect the benefit of
the bargain under the contract.” Brief for appellants at 3. The
U.S. Supreme Court has instructed courts of appeals to view
claims of a “‘right not to be tried’ with skepticism, if not a
jaundiced eye.” Digital Equipment Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 873, 114 S. Ct. 1992, 128 L. Ed. 2d 842
(1994). And the mere identification of some interest that
would be “‘irretrievably lost’” has never sufficed to meet the
third requirement of the collateral order doctrine. Hallie Mgmt.
Co. v. Perry, 272 Neb. 81, 87, 718 N.W.2d 531, 535 (2006).
Pursuant to Hallie Mgmt. Co., we must balance the potential
harm of delaying until final judgment appeals from orders
denying enforcement of a tolling agreement, against the harm
caused by the delay certain to result if interlocutory review of
such orders is permitted.
[19] Unlike governmental immunity which “is based in
immunity from suit and is not simply a defense against liabil-
ity,” StoreVisions v. Omaha Tribe of Neb., 281 Neb. 238,
243-44, 795 N.W.2d 271, 277 (2011), modified on denial of
rehearing 281 Neb. 978, 802 N.W.2d 420, a tolling agreement
does not provide a party with immunity from suit. Tolling
agreements do not extinguish a cause of action of a potential
plaintiff against a potential defendant, or relieve a defend­
ant from potential liability altogether; rather, the potential
plaintiff agrees to defer litigation, typically in exchange for
the defend­ ant’s agreement to extend the statutory limita-
tions period on the plaintiff’s claim. Black’s Law Dictionary
defines “tolling agreement” as “[a]n agreement between a
potential plaintiff and a potential defendant by which the
defendant agrees to extend the statutory limitations period on
the plaintiff’s claim, usu[ally] so that both parties will have
Decisions of the Nebraska Court of Appeals
770 22 NEBRASKA APPELLATE REPORTS
more time to resolve their dispute without litigation.” Black’s
Law Dictionary 1716 (10th ed. 2014). The Brashears’ argu-
ment further presumes that the remedy for an alleged breach
of a tolling agreement is dismissal of the lawsuits. However,
we note that our courts have not addressed whether dismissal
would be the proper remedy for such a breach, and there is
case law from other jurisdictions that have concluded dis-
missal is not a proper remedy. See, e.g., Kunza v. St. Mary’s
Regional Health Center, 747 N.W.2d 586 (Minn. App. 2008)
(dismissal is not proper remedy for breach of agreement not
to sue for limited time); Saint Louis University v. Medtronic
Nav., Inc., No. 4:12CV01128, 2012 WL 4049018 (E.D. Mo.
Sept. 13, 2012) (memorandum opinion) (concluding that under
Missouri law, appropriate remedy for breach of covenant not
to sue for limited time is damages, because dismissal does not
accord with rationale behind such covenants). However, we
need not determine at this time what the proper remedy would
be for the breach of a tolling agreement, since we conclude
the collateral order doctrine does not give us jurisdiction over
the present appeals.
[20] Even if we accepted the Brashears’ assertion that the
agreement provided them with a private right not to be sued
on any cause for a limited time and that the remedy is dis-
missal of the prematurely filed suits, we find the private right
at issue here to be similar to the settlement agreement at issue
in Digital Equipment Corp., 511 U.S. at 879, wherein the
U.S. Supreme Court distinguished such a privately conferred
right from a “policy embodied in a constitutional or statutory
provision entitling a party to immunity from suit,” only the
latter of which is of such importance that it justifies depart-
ing from the operation of ordinary final judgment principles.
(Emphasis supplied.) Further, “it is not mere avoidance of a
trial, but avoidance of a trial that would imperil a substantial
public interest, that counts when asking whether an order is
‘effectively’ unreviewable if review is to be left until later.”
Will v. Hallock, 546 U.S. 345, 353, 126 S. Ct. 952, 163 L. Ed.
2d 836 (2006). The Brashears’ situation has greater similar-
ity to, than difference from, the claims of a party that once
Decisionsof the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 758
prevailed at trial and then pleads res judicata, a party who
seeks shelter under the statute of limitations, or a party not
subject to a claim on which relief could be granted, none of
which are reviewable on interlocutory appeal. See Digital
Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114
S. Ct. 1992, 128 L. Ed. 2d 842 (1994). Additionally, the
Brashears’ situation is much like the settlement agreement in
Digital Equipment Corp., and the U.S. Supreme Court held
in that case that “a refusal to enforce a settlement agreement
claimed to shelter a party from suit altogether does not supply
the basis for immediate appeal.” 511 U.S. at 884. The tolling
agreement in this case seeks to avoid or delay trial against
the Brashears; however, the mere avoidance of a trial in this
instance does not imperil a substantial public interest that
would be unreviewable later. See Will, supra (it is not mere
avoidance of trial, but avoidance of trial that would imperil
substantial public interest, that counts when asking whether
order is effectively unreviewable if review is to be left until
later). And although the district court’s order might be called
“‘“effectively unreviewable”’” in the sense that relief from
error cannot rewrite history, and that appellate reversal upon
a final judgment might only “‘imperfectly’” repair the burden
to litigants, Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 87, 718
N.W.2d 531, 535 (2006), we must nevertheless conclude that
the third requirement of the collateral order doctrine has not
been satisfied and that the appeals must be dismissed for lack
of jurisdiction.
CONCLUSION
The district court’s order overruling the Brashears’ motions
to dismiss does not fall within the collateral order doc-
trine; accordingly, this court does not have jurisdiction over
these appeals.
Appeals dismissed.