TDP Phase One v. The Club at the Yard , 307 Neb. 795 ( 2020 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
TDP Phase One, LLC, appellee, v. The Club
at the Yard, LLC, doing business as
Rule G Night Club, and Eric
F. Marsh, appellants.
___ N.W.2d ___
Filed November 13, 2020. No. S-19-1198.
1. Jurisdiction. The question of jurisdiction is a question of law.
2. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
3. Claims: Parties: Judgments: Appeal and Error. Where the proceed-
ings below involved multiple claims for relief or multiple parties, and
the court has adjudicated 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 otherwise, Neb. Rev. Stat. § 25-1315
(Reissue 2016) controls and mandates that the order is not immediately
appealable unless the lower court issues an express determination for
the entry of judgment upon an express determination that there is no just
reason for delay.
4. Statutes: Final Orders: Intent. The intent behind Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016) was to prevent interlocutory appeals, not
make them easier.
5. Claims: Parties: Judgments: Appeal and Error. Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016) attempts to strike a balance between the
undesirability of piecemeal appeals and the potential need for making
review available at a time that best serves the needs of the parties.
6. ____: ____: ____: ____. Certification of a final judgment must be
reserved for the “unusual case” in which the costs and risks of multiply-
ing 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.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
7. Claims: Parties: Final Orders. 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 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.
8. Parties: Judgments: Appeal and Error. Every party seeking certifica-
tion may eventually appeal the judgment in question.
9. Claims: Final Orders. A court should be particularly cautious in cer­
tifying 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 inher-
ently final, the facts underlying the claim resulting in that judgment may
be intertwined with the remaining issues.
10. Statutes. To the extent there is a conflict between two statutes on the
same subject, the specific statute controls over the general.
11. Statutes: Appeal and Error. When a statute is not ambiguous, an
appellate court ordinarily looks no further than the plain language of the
statute. Statutory language is to be given its plain and ordinary meaning,
and an appellate court will not resort to interpretation to ascertain the
meaning of statutory words which are plain, direct, and unambiguous.
12. Actions: Parties: Final Orders: Appeal and Error. One may bring an
appeal pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) only
when (1) multiple causes of action or multiple parties are present, (2)
the court enters a final order within the meaning of Neb. Rev. Stat.
§ 25-1902 (Supp. 2019) 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 immediate appeal.
13. Claims: Parties: Final Orders: Appeal and Error. In the absence of
an express determination that there is no just reason for delay and upon
an express direction for the entry of judgment, orders, however desig-
nated, adjudicating fewer than all claims or the rights of fewer than all
the parties are not final. Absent an entry of judgment under Neb. Rev.
Stat. § 25-1315 (Reissue 2016), no appeal will lie unless all claims have
been disposed as to all parties in the case.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Appeal dismissed.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellants.
Gregory S. Frayser and Nathan D. Clark, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellee.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
After its tenant failed to pay rent and refused to vacate the
premises, a commercial landlord brought suit for restitution of
premises pursuant to the forcible entry and detainer (FED) stat-
utes, Neb. Rev. Stat. §§ 25-21,219 through 25-21,235 (Reissue
2016 & Cum. Supp. 2018). The landlord also brought claims
for breach of the lease agreement and breach of the guaranty
agreement. The tenant counterclaimed for breach of contract,
breach of implied covenant of good faith and fair dealing,
money had and received, and fraud in the inducement of the
lease and guaranty agreements. The tenant also brought suit
against the property management company and its owners, as
third-party defendants, for civil conspiracy to tortiously inter-
fere with a business expectancy and fraud in the inducement of
the lease and guaranty agreements.
The tenant appeals from an order of summary judgment in
favor of the landlord on its FED claim. The district court’s
order did not resolve the remaining claims of either the ­landlord
or the tenant, and no request was made of the district court to
issue a certification under Neb. Rev. Stat. § 25-1315 (Reissue
2016). We hold that this court is without jurisdiction over the
present appeal.
BACKGROUND
TDP Phase One, LLC (TDP), a commercial landlord,
entered into a 10-year lease agreement with The Club at the
Yard, LLC, doing business as Rule G Night Club (Rule G),
signed by its managing member and guarantor, Eric F. Marsh,
in 2013. The property at issue is located in the “Railyard,” an
entertainment district in Lincoln, Nebraska, with a common
area in the middle and tenants surrounding it. TDP owns the
Railyard. The tenants surrounding the Railyard share costs
of the common area, which they pay pursuant to the terms
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
of their lease agreements. When Rule G failed to pay rent in
April through July 2019, TDP prepared a 3-day notice to quit,
mailing the notice to Marsh and hand delivering a copy to
the attorney of record at all relevant times for Rule G. TDP
then brought suit against Rule G, alleging restitution of the
premises pursuant to §§ 25-21,219 through 25-21,235, as well
as claims of breach of contract relating to both the lease and
the guaranty agreements. TDP asserted that Rule G failed to
pay rent in breach of its lease, that Marsh refused to pay the
rent owed as Rule G’s guarantor, and that Rule G refused
to vacate the premises after TDP prepared and sent a 3-day
notice to quit pursuant to § 25-21,221. In its restitution action,
TDP sought restitution, costs, and such other relief as was just
and equitable.
Rule G challenged proper notice pursuant to § 25-21,221
and raised various defenses, including waiver, prior material
breach, and that Rule G was entitled to a setoff due to its over-
payment of rent. Rule G also counterclaimed against TDP for
(1) breach of contract, (2) breach of implied covenant of good
faith and fair dealing, (3) money had and received, and (4)
fraud in the inducement of the lease and the guaranty agree-
ments. Finally, Rule G filed a third-party complaint against the
management company for the property and its sole members,
alleging they conspired to tortiously interfere with its business
expectancies.
TDP moved for partial summary judgment, seeking a deter-
mination of its FED claim, asserting that there was no gen­
uine issue of material fact as to its right to restitution of the
premises. The court determined that Rule G failed to make all
payments of rent due under the lease agreement and failed to
deliver possession of the property within 3 days of the notice.
The court found this entitled TDP to immediate restitution of
the property.
In its order, the court rejected Rule G’s claim that TDP did
not satisfy the notice requirement required by § 25-21,221. It
declined to construe § 25-21,221 as requiring notice to be served
in the same manner as a summons in a civil action.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
Further, the court was not persuaded by Rule G’s arguments
that TDP waived its FED claim by accepting rental payments
after filing suit and that there was a genuine issue of material
fact as to whether Rule G was entitled to a setoff for the over-
payment of rent under the lease agreement. The court noted
that the lease agreement clearly provided that the acceptance of
rent is not a waiver of default and that setoff for overpayment
of the rent was explicitly precluded by the lease agreement.
The court further observed that Rule G’s fraudulent induce-
ment claims were barred by the statute of limitations. It did not
address any other counterclaims or third-party claims.
Rule G and Marsh appeal the order granting summary judg-
ment to TDP on its FED claim. However, neither sought a
§ 25-1315 certification from the district court.
ASSIGNMENTS OF ERROR
Rule G and Marsh assign that the district court erred in
granting the partial summary judgment for TDP, because the
district court erroneously (1) concluded overpayments could
not be considered to prove that the rents were paid, (2) did not
allow discovery concerning prepayments of rent and calcula-
tions of rent credits, (3) found proper presuit notice was given
under § 25-21,221, and (4) granted summary judgment for
restitution against a lease guarantor who is not a party in pos-
session of the leased premises.
STANDARD OF REVIEW
[1] The question of jurisdiction is a question of law. 1
ANALYSIS
[2] Before reaching the assignments of error asserted by
Rule G and Marsh, this court must first determine whether
it has jurisdiction over this appeal. It is the power and duty
of an appellate court to determine whether it has jurisdiction
1
State v. Harris, ante p. 237, 948 N.W.2d 736 (2020). See, also, Federal
Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301, 854 N.W.2d 774 (2014).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
over the matter before it, irrespective of whether the issue is
raised by the parties. 2 In doing so, we find that we lack juris-
diction over the present appeal, because it lacks certification
under § 25-1315.
Section 25-1315(1) provides in full:
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.
[3] Where the proceedings below involved multiple claims
for relief or multiple parties, and the court has adjudicated
fewer than all the claims or the rights and liabilities of fewer
than all the parties, then, absent a specific statute govern-
ing the appeal providing otherwise, 3 § 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.”
2
Bailey v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916
(2003).
3
See R & D Properties v. Altech Constr. Co., 279 Neb. 74, 776 N.W.2d
493 (2009) (finding Neb. Rev. Stat. § 25-1315.03 (Reissue 2016) to be
more specific and controlling statute over § 25-1315 and allowing appeal
without § 25-1315 certification).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
This case involved both multiple claims for relief and
­ ultiple parties, and the order of restitution appealed from
m
adjudicated both fewer than all the claims and the rights and
liabilities of fewer than all the parties. TDP filed suit against
Rule G for breach of contract, breach of guaranty, and restitu-
tion of premises. Rule G in turn brought several counterclaims,
as well as a third-party complaint against the property’s man-
agement company for fraud and tortious interference. TDP
filed a motion for partial summary judgment, and the district
court entered an order of restitution granting TDP restitution
of the premises. This order disposed only of TDP’s restitution-
of-premises claim against Rule G. The district court has yet
to adjudicate TDP’s breach of contract and guaranty claims,
Rule G’s counterclaims against TDP, and Rule G’s third-party
claims against the property’s management company.
[4,5] The intent behind § 25-1315(1) was to prevent inter-
locutory appeals, not make them easier. 4 Prior to the enactment
of § 25-1315, an 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 dismiss-
ing 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. 5 Section 25-1315 was an evident attempt
by the Legislature to simplify the issue and clarify many of
the questions regarding final orders when there are multiple
parties and claims. 6 It attempts to strike a balance between the
undesirability of piecemeal appeals and the potential need for
making review available at a time that best serves the needs of
the parties. 7
4
Rafert v. Meyer, 298 Neb. 461, 905 N.W.2d 30 (2017).
5
Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
6
Id.
7
Id.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
[6-9] Certification of a final judgment must be reserved for
the “unusual case” in which the costs and risks of multiplying
the number of proceedings and of overcrowding the appellate
docket are outbalanced by the pressing needs of the litigants
for an early and separate judgment as to some claims or par-
ties. 8 The power § 25-1315(1) confers upon the trial judge
should be used only in the “infrequent harsh case” as an instru-
ment 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. 9 Every party
seeking certification may eventually appeal the judgment in
question. 10 A court should be particularly cautious in certify-
ing 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 remain-
ing issues. 11
[10] To the extent there is a conflict between two statutes
on the same subject, the specific statute controls over the
general, 12 but we find no statute applicable here that conflicts
with § 25-1315. The statute applicable in the present case,
§ 25-21,233, provides: “Any party against whom judgment has
been entered in an action of [FED], or forcible detention only,
of real property, may appeal as provided for in a civil action.”
There is nothing in the language of § 25-21,233 indicating that
an order of restitution resolving a FED claim, when it adjudi-
cates fewer than all claims for relief and the rights and liabili-
ties of fewer than all the parties in the action in which such
claim was brought, should be immediately appealable without
having to obtain a certified judgment pursuant to § 25-1315.
8
Rafert v. Meyer, supra note 4.
9
Id.
10
Cerny v. Todco Barricade Co., supra note 5.
11
Id.
12
Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).
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TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
[11] When a statute is not ambiguous, an appellate court
ordinarily looks no further than the plain language of the stat-
ute. 13 Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. 14 Section 25-21,233, by its plain
language, directs that the party against whom judgment has
been entered in a FED action may appeal only “as provided for
in a civil action.” And § 25-1315 governs civil actions. Thus,
by the plain language of § 25-21,233, when the FED claim is
part of an action involving multiple claims or multiple parties,
§ 25-1315 governs the immediate appealability of an order
determining the FED claim.
The language of § 25-21,233 is distinguishable from
§ 25-1315.03, which we held in R & D Properties v. Altech
Constr. Co. 15 to be a more specific statute that controls over
§ 25-1315 in determining whether the order described therein
is immediately appealable. Section 25-1315.03 plainly states
that an order granting or denying a new trial is “an appeal-
able order,” with the time and manner for the appeal of such
order to be as for an appeal from a judgment, decree, or final
order. Thus, in R & D Properties, we found we had jurisdic-
tion over an appeal from an order granting a new trial on the
building owner’s claims against a contractor, even though a
third-party claim against a subcontractor was still pending
and the court did not issue a certification under § 25-1315. 16
The order granting a new trial was final and appealable with-
out a § 25-1315 certification, because the language designat-
ing the order granting a new trial as “an appealable order”
plainly controlled over the mandate in § 25-1315 that “any
order or other form of decision, however designated, which
13
See State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
14
Moser v. State, ante p. 18, 948 N.W.2d 194 (2020). See, also, State v.
McGuire, supra note 13.
15
R & D Properties v. Altech Constr. Co., supra note 3.
16
Id.
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TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
adjudicates fewer than all the claims or the rights and liabili-
ties of fewer than all the parties shall not terminate the action
as to any of the claims or parties.”
The plain language of § 25-21,233 does not designate an
order determining the rights and liabilities in a FED action to
be “an appealable order.” Rather, it generally states that any
party against whom “judgment” has been entered in an action
of FED or forcible detention only “may appeal as provided for
in a civil action.” As already stated, § 25-1315 is part of how
one may appeal in a civil action, when multiple claims or par-
ties are involved. We also note that where there are multiple
parties or multiple claims, fewer than all of which have been
adjudicated, there is no “judgment” as defined by Neb. Rev.
Stat. § 25-1301(1) (Cum. Supp. 2018). 17
While prior versions of § 25-21,233 had language directing,
without caveat, that the judgment in the FED action could be
appealed, this language had been adopted at a time when FED
actions were not joined with other claims, and it has since been
amended. At the time prior versions of § 25-21,233 were in
effect, the language of the statute combined with the rule that
FED claims cannot litigate questions outside of the immediate
right to possession and statutorily designed incidents thereto,
so that claims for damages related to rent costs and restitution
were not joined in an action with claims nonrelated to rental
damages or restitution of the property. 18 But, after the passage
of the liberal joinder amendments in 1998, 19 the Legislature
accounted for the possibility of joinder of FED and non-FED
claims and, accordingly, the possible implication of § 25-1315,
by qualifying in § 25-21,233 that the appeal must be “as pro-
vided for in a civil action.”
17
See Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
18
See Federal Nat. Mortgage Assn. v. Marcuzzo, supra note 1.
19
See, e.g., Neb. Rev. Stat. §§ 25-311, 25-320, 25-701, and 25-705 (Reissue
2016); Introducer’s Statement of Intent, L.B. 234, Judiciary Committee,
95th Leg., 1st Sess. (Feb. 21, 1997).
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TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
Nothing in the history of § 25-21,233 indicates any intent
on the part of the Legislature after the passage of the liberal
joinder amendments to allow orders determining FED claims
to be immediately appealable even when fewer than all claims
or the rights of fewer than all the parties in the action have
been adjudicated. Section 25-21,233 originally stated: “Any
party against whom judgment has been entered by this court in
an action of [FED], or forcible detention only, of real property,
may appeal therefrom to the district court, except that the right
of appeal herein granted shall not be granted from judgments
entered by default.” 20 At that time, FED actions originated
in municipal courts and “by this court” referred to munici-
pal courts. 21
In 1972, the Legislature amended § 25-21,233 by taking
out “by this court,” because a reorganization of the courts in
Nebraska was occurring and the municipal courts of Lincoln
and Omaha, Nebraska, were limited to the cities’ corporate
limits. 22 In 1981, the Legislature amended the FED statutory
scheme to account for the fact that municipal courts no longer
existed. The amendment allocated jurisdiction to both county
and district courts to handle FED claims. 23 Also in 1981, the
language of § 25-21,233 was amended to allow an appeal of
a FED claim “as provided in sections 24-541.01 to 24-541.10
and 24-551.” Neb. Rev. Stat. §§ 24-541.01 to 24-541.10
(Reissue 1985), currently found at Neb. Rev. Stat. §§ 25-2728
to 25-2738 (Reissue 2016 & Cum. Supp. 2018), laid out the
location, deadlines, and procedures for appealing cases from
county court to district court. This language in § 25-21,233
20
1929 Neb. Laws, ch. 82, § 131, p. 312.
21
1929 Neb. Laws, ch. 82, § 117, p. 309.
22
Compare Neb. Rev. Stat. § 26-1,132 (Reissue 1964), with Neb. Rev. Stat.
§ 24-582 (Reissue 1975). See, also, Introducer’s Statement of Purpose,
L.B. 1032, Judiciary Committee, 82d Leg., 2d Sess. (Jan 24, 1972).
23
Neb. Rev. Stat. § 24-568 (Reissue 1985).
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was adopted in order to streamline the appeal process from
county courts to district courts. 24
Lastly, in 2004, the Legislature corrected an error in
§ 25-21,233 indicating that FED claims brought in district
court were appealed to district court. The 2004 amendment
clarified that appeals of FED claims brought in district court
were to be appealed as provided for in a civil action. The
pre-2004 error was due to the jurisdictional language in
§ 25-21,219 giving jurisdiction of FED claims to county and
district courts and then the language in § 25-21,233 allowing
for appeals “as provided in sections 25-2728 to 25-2738,”
which laid out the process to appeal cases from county to dis-
trict court. The statutory scheme read with § 25-21,233 made
it sound as if the appeals could go only to district court, based
on the language “may appeal as provided in sections 25-2728
to 25-2738.” So the amendment in 2004 removed “in sections
25-2728 to 25-2738” and added “for in a civil action,” so that
the appeals of FED actions would now be allowed as any other
appeal would. 25
The current statutory scheme adopted in 2004, combined
with the liberal joinder rules adopted in 1998, means that an
action involving multiple claims, only one of which arises
under the FED statutes, can be presented in a single action. With
this possibility, the Legislature’s amendment of § 25-21,233
to state that an appeal from a “judgment” in a FED action
may be appealed only as provided “for in a civil action” 26
indicates its intent that appeals involving FED claims
24
Introducer’s Statement of Intent, L.B. 42, Judiciary Committee, 87th Leg.,
1st Sess. (Jan. 21, 1981). See, also, §§ 24-582 (Reissue 1985) and 24-568.
25
Compare § 25-21,219 (Reissue 1995) (giving jurisdiction of FED actions
to county and district courts), § 25-21,233 (Reissue 1995) (providing
specific appeal statutes), and §§ 25-2728 to 25-2738 (specific appeal
statutes from § 25-21,223 that laid out appeal process from county to
district court), with § 25-21,233 (Reissue 2008).
26
See 2004 Neb. Laws, L.B. 1207.
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TDP PHASE ONE v. THE CLUB AT THE YARD
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should now be governed by the normal appeal process for
civil actions—which would require satisfying Neb. Rev. Stat.
§ 25-1902 (Supp. 2019) or § 25-1301(1) and, when implicated,
§ 25-1315.
[12,13] We need not conduct an analysis of whether the FED
order of partial summary judgment that Rule G and Marsh
attempt here to appeal was a final order under § 25-1902
or a judgment under § 25-1301, because we conclude that
§ 25-1315 was implicated and the court did not certify the
appeal as required by that statute. With the enactment of
§ 25-1315(1), one may bring an appeal pursuant to such sec-
tion only when (1) multiple causes of action or multiple par-
ties 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 immediate appeal. 27
In the absence of an express determination that there is no
just reason for delay upon an express direction 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. 28 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. 29
The order of partial summary judgment in this matter adju-
dicated both fewer than all claims presented in the underly-
ing action and the rights of fewer than all the parties. The
district court did not make an express direction for the entry
of judgment upon an express determination that there is no
just reason for delay. Therefore, we lack jurisdiction over
TDP’s appeal.
27
Rafert v. Meyer, supra note 4.
28
See Boyd v. Cook, supra note 17.
29
Id.
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TDP PHASE ONE v. THE CLUB AT THE YARD
Cite as 307 Neb. 795
CONCLUSION
This court is without jurisdiction over the present appeal,
because the order of restitution disposing of the FED action did
not satisfy § 25-1315(1). Therefore, the appeal is dismissed.
Appeal dismissed.
Funke and Papik, JJ., not participating.