Clason v. LOL Investments

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/07/2021 08:11 AM CDT
- 904 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904Steven E. Clason, appellant, v. LOL Investments,
LLC, a Nebraska limited liability company, and
Producers Livestock Credit Corporation,
a Delaware corporation, appellees.
___ N.W.2d ___
Filed April 9, 2021. No. S-20-667.
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. 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 (Cum. Supp. 2020) 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.
3. Claims: Parties: Final Orders: Appeal and Error. 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. 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.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Riedmann and Arterburn, Judges,
on appeal thereto from the District Court for Furnas County,
James E. Doyle IV, Judge. Judgment of Court of Appeals
affirmed.
- 905 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904Terry K. Barber, of Barber & Barber, P.C., L.L.O., for
appellant.
James H. Dodson, of Dodson & Dodson, for appellee LOL
Investments, LLC.
Jason B. Bottlinger, of Bottlinger Law, L.L.C., for appellee
Producers Livestock Credit Corporation.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Steven E. Clason filed notice of his intent to appeal the order
of the district court for Furnas County which denied his request
to quiet title to certain property in his name and instead quieted
title in the name of Producers Livestock Credit Corporation
(PLCC). The Nebraska Court of Appeals determined that the
district court’s order was not appealable because the district
court had not yet disposed of all the counterclaims set forth in
PLCC’s answer, and the Court of Appeals dismissed Clason’s
appeal for lack of jurisdiction. We granted Clason’s petition
for further review. We affirm the order of the Court of Appeals
which dismissed the appeal.
STATEMENT OF FACTS
Clason owned farm real estate (the property) located in
Furnas County. Clason took out agricultural loans that were
secured by a deed of trust on the property. After a series of
assignments, the deed of trust was held by LOL Investments,
LLC. Clason defaulted on his debt payments, and after giving
the required notices, the deed trustee conducted a trustee’s sale
on October 24, 2019. The property was sold to PLCC.
Clason refused to surrender the property to PLCC. On
November 22, 2019, PLCC filed an action against Clason
for forcible entry and detainer in the county court for Furnas
County. On December 16, while PLCC’s action was still
- 906 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904pending in county court, Clason filed the present action in the
district court for Furnas County. The county court dismissed
the action filed by PLCC on the basis that it lacked jurisdiction
because of the pendency of the action filed by Clason in the
district court.
In his complaint filed in the district court, Clason alleged
that for various reasons, the trustee’s sale was invalid and the
purported sale of the property to PLCC was void. Pursuant to
Neb. Rev. Stat. § 25-21,112 (Reissue 2016), Clason requested
that the court enter an order quieting title to the property
in him.
PLCC filed an answer and counterclaim in which it gener-
ally denied that the trustee’s sale was invalid. PLCC specifi-
cally denied that certain laws and regulations, which Clason
had alleged were not followed, applied to the loans upon
which Clason defaulted. PLCC also asserted various affirm­
ative defenses, and it requested that Clason’s complaint
be dismissed.
For its counterclaim, PLCC alleged that the trustee’s sale
was valid and that PLCC was the legal owner of the property.
PLCC set forth what it denominated as four “claims”: (1) to
quiet title in PLCC; (2) for ejectment of Clason from the prop-
erty; (3) for unjust enrichment, to which PLCC alleged it was
entitled to the fair market rental value for Clason’s unlawful
retention of the property since October 24, 2019, as well as
real estate and occupation taxes PLCC had paid related to the
property; and (4) for attorney fees pursuant to Neb. Rev. Stat.
§ 25-824 (Reissue 2016) on the basis that Clason’s action was
frivolous and brought in bad faith.
PLCC thereafter filed a motion for partial summary judg-
ment in which it asserted that it was entitled to judgment as
a matter of law on Clason’s claim to quiet title and on its
counter­claim to quiet title. PLCC requested an order quieting
title to the property in favor of PLCC. LOL Investments filed
a motion to dismiss Clason’s complaint as to it, alleging that
Clason failed to state a claim against it.
- 907 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904The district court held a hearing on PLCC’s motion for
partial summary judgment and LOL Investments’ motion to
dismiss. On August 12, 2020, following the hearing, the court
filed an order titled “Judgment and Decree Quieting Title” in
which it concluded that PLCC was entitled to judgment as a
matter of law on Clason’s complaint and on PLCC’s counter-
claim to quiet title and that Clason’s complaint failed to state
a claim against LOL Investments. The court therefore entered
judgment in favor of PLCC and against Clason, dismissed
Clason’s complaint with prejudice, and ordered that title in
the property be quieted in PLCC, with Clason’s having no
claim, right, title, or interest of any kind as to the property. On
September 11, Clason filed a notice of his intent to appeal the
August 12 order in which the court quieted title in PLCC.
The Court of Appeals dismissed the appeal for lack of juris-
diction on October 23, 2020. In its order, the Court of Appeals
cited Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) and stated
that the August 12 order was not an appealable order “as there
has yet to be a disposition of all of the claims set forth” in
PLCC’s answer and counterclaim.
We granted Clason’s petition for further review.
ASSIGNMENT OF ERROR
Clason claims that the Court of Appeals erred when it deter-
mined that the August 12, 2020, order was not a final, appeal-
able order and when it therefore dismissed his appeal for lack
of jurisdiction.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of law.
In re Estate of Larson, ante p. 240, 953 N.W.2d 535 (2021).
ANALYSIS
Clason claims that the Court of Appeals erred when it dis-
missed his appeal. Clason contends that the district court’s
- 908 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904August 12, 2020, order is appealable because the appeal was
taken from an “order affecting a substantial right made during
a special proceeding” within the meaning of Neb. Rev. Stat.
§ 25-1902 (Cum. Supp. 2020). Clason also relies on cases,
notably Peterson v. Damoude, 95 Neb. 469, 470, 145 N.W.
847, 848 (1914), in which this court held, in the context of
a partition proceeding, that “[a] judgment rendered upon the
issue of title alone is a final judgment, from which appeal
will lie, and which may be reviewed by this court while the
partition proceedings are suspended.” He argues that the rea-
soning in the partition cases should apply here and that the
order ­quieting title in this case is a final judgment that may be
appealed even though other claims were pending at the time
Clason took an appeal.
Without regard to Clason’s foregoiong arguments, we note
that the Court of Appeals dismissed this appeal on the basis of
§ 25-1315(1), which 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.
The Court of Appeals reasoned that although the August 12,
2020, order resolved Clason’s claim to quiet title and PLCC’s
counterclaim to quiet title, proceedings regarding PLCC’s
- 909 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904other counterclaims in this case remained pending, and that
therefore, the appellate court had not acquired jurisdiction. We
agree with the dismissal of this appeal on the basis explained
by the Court of Appeals.
We recently discussed the operation of § 25-1315(1) in TDP
Phase One v. The Club at the Yard, 307 Neb. 795, 950 N.W.2d
640 (2020).
[2,3] In TDP Phase One v. The Club at the Yard, we con-
cluded that an order of partial summary judgment ordering
restitution of property and resolving a claim for forcible entry
and detainer was not appealable because other claims and
counterclaims were not resolved and that in addition, no certifi-
cation was made under § 25-1315. In reaching this conclusion,
we stated, inter alia, that we did not need to determine whether
the order of partial summary judgment was a final order under
§ 25-1902 or a judgment under Neb. Rev. Stat. § 25-1301(Cum. Supp. 2018) because § 25-1315 was implicated and the
district court did not certify the appeal as required by that stat-
ute. Paralleling the statute, we reasoned:
With the enactment of § 25-1315(1), one may bring an
appeal pursuant to such section only when (1) multiple
causes of action or multiple parties are present, (2) the
court enters a final order within the meaning of § 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.
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, adjudi-
cating fewer than all claims or the rights of fewer than
all the parties are not final. 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.
TDP Phase One v. The Club at the Yard, 307 Neb. at 807, 950
N.W.2d at 649.
- 910 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904In this case, PLCC’s response raised multiple issues that it
described as four separate “claims,” and the August 12, 2020,
order disposed of only PLCC’s counterclaim to quiet title;
PLCC’s “claims” for ejectment, unjust enrichment, and attor-
ney fees were not addressed in the order. Similar to our analy-
sis in TDP Phase One v. The Club at the Yard, in this case, we
need not consider Clason’s argument that the August 12 order
is a final order under § 25-1902. Even assuming that it is a
final order for the reason urged by Clason, § 25-1315 does not
permit appeal until either the remaining claims are resolved or
the court enters judgment under § 25-1315, accompanied by an
express determination that there is no just reason for delay of
an appeal. We note that the district court in this case titled the
order resolving title issues as a “Judgment and Decree Quieting
Title.” Despite titling the order as a “judgment,” the order was
not certified under § 25-1315, and without such determination,
the “judgment” was not appealable in this case.
We also reject Clason’s arguments based on our case law
regarding partition actions. Clason cites Peterson v. Damoude,
95 Neb. 469, 145 N.W. 847 (1914), and other cases in which
we have held that under certain circumstances, in a partition
action that involves a dispute as to title, an order quieting
title within the partition action is appealable as a final order
even when additional issues regarding partitioning the property
remain to be resolved. Clason argues that the reasoning used
in the partition cases should be applied in this case and would
lead to the conclusion that the order quieting title is appeal-
able even though other issues remain to be resolved. We reject
this argument.
In Peterson v. Damoude, 95 Neb. at 471, 145 N.W. at 848,
this court recognized three classes of cases involving partition:
(1) those “[w]here there is no controversy as to the owner-
ship of the property in common and the right to partition, but
the controversy is as to something relating to the partition
. . . ”; (2) those where there is an issue “as to the method of
partition, and at the same time a distinct issue as to the title
- 911 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904and ownership of the property”; and (3) those “where every-
thing depends upon the title and the nature of the title, and
where, when that question is determined, the whole thing is
determined.” This court further noted that in cases of the sec-
ond class—those involving distinct issues as to the method of
partition and as to the title and ownership—“the parties would
have a right to have their title first tried and determined.” Id.If title is first tried and determined, “the order thereon would
be a final order,” but if the parties do not ask to have title first
determined and instead all issues are tried together, “the parties
should be held to have waived their right to appeal before the
partition is completed.” Id.Clason generally argues that the procedure employed in this
case was similar to that described in the second class of parti-
tion cases in Peterson v. Damoude, supra. Clason contends that
the August 12, 2020, order quieting title should be appealable
while other issues presented by the pleadings such as ejectment
and unjust enrichment are still pending. However, Clason’s
argument does not properly account for § 25-1315.
We examined the interplay between the Peterson v. Damoude
line of cases and § 25-1315 in Guardian Tax Partners v. Skrupa
Invest. Co., 295 Neb. 639, 889 N.W.2d 825 (2017). In that
case, we cited Peterson v. Damoude, supra, to state that
when a partition action involves a dispute over ownership
or title as well as a dispute over the method of partition,
the parties have a right to have title determined first, and,
if they elect to do so, an order resolving only the title
dispute is a final, appealable order.
Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. at
644-45, 889 N.W.2d at 829. We noted that “partition actions
are unique in that when title is contested, the action has two
distinct stages: first, the title determination, and second, the
division of the real estate, i.e., the ‘partition.’” Id. at 646,
889 N.W.2d at 830. Based on this unique two-stage structure
and on statutory and case law relevant to partition actions,
we concluded that an order in which the district court had
- 912 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904“resolved the first stage of this partition action and disposed of
all matters in that stage” was a final order, even though issues
of partition were still to be decided. Id.We further considered “how the enactment of § 25-1315
affects the rules for the appealability of orders in partition
actions outlined in Peterson v. Damoude.” Guardian Tax
Partners v. Skrupa Invest. Co., 295 Neb. at 647, 889 N.W.2d at
831. We reasoned that “in enacting § 25-1315, the Legislature
did not amend the partition statutes or attempt to change
the effect of our prior jurisprudence” and that “[h]ad the
Legislature intended to change the well-settled law governing
finality of partition judgments and orders, it would have done
so explicitly.” Guardian Tax Partners v. Skrupa Invest. Co.,
295 Neb. at 649, 889 N.W.2d at 832.
We concluded that § 25-1315 was not implicated in Guardian
Tax Partners v. Skrupa Invest. Co., because there was not more
than one cause of action present in that case. We noted that
§ 25-1315 is implicated only where there are multiple causes
of action or multiple parties and the court enters a final order
as to one or more but fewer than all the causes of action or
parties. We noted first that although there were multiple parties
in the case, the district court order disposed of the title claims
of all parties. We further determined that there was not more
than one cause of action present in Guardian Tax Partners v.
Skrupa Invest. Co. We based this determination largely on the
unique two-stage structure of partition actions in which title
may be contested. Although the action has two distinct stages,
and a court may enter a final order at the conclusion of the first
stage, the action remains a single cause of action.
The present case is not a partition action, and therefore, the
reasoning of Peterson v. Damoude, 95 Neb. 469, 145 N.W. 847(1914), and its progeny does not apply. This was not a partition
action in which issues regarding title arose. Instead, the present
case is a quiet title action brought by Clason, wherein PLCC
filed a counterclaim to quiet title in itself, as well as addi-
tional counterclaims for ejectment and unjust enrichment. We
- 913 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904have not treated orders quieting title in other types of actions
in the same way that we have treated them in partition cases.
See Olsen v. Olsen, 248 Neb. 393, 534 N.W.2d 762 (1995)
(determining that order quieting title to mineral claims was
interlocutory and nonappealable when issues of accounting and
damages were still pending). And we have not treated orders
resolving title issues in ejectment actions as appealable when
other issues related to ejectment remain to be determined. See
Wicker v. Waldemath, 238 Neb. 515, 471 N.W.2d 731 (1991)
(determining that order entered on jury verdict in ejectment
case which involved dispute of title not final order when issue
of rents and profits not yet resolved).
As stated above, in Guardian Tax Partners v. Skrupa
Invest. Co., 295 Neb. 639, 646, 889 N.W.2d 825, 830 (2017),
we stated that partition actions involving title determinations
are “unique,” leading to the appealability of the title deter-
mination and the irrelevance of § 25-1315. Clason does not
point us to any authority governing either ejectment or unjust
enrichment which involves a title determination that recog-
nizes such a structure. We find no reason to determine that
the “partition involving title determination” structure is pres-
ent in this case involving quiet title, and separately ejectment
and unjust enrichment, and that therefore, appeals regard-
ing quiet title in cases also involving ejectment or unjust
enrichment are not authorized in the absence of certification
under § 25-1315.
In the present case, the action began in the district court as
Clason’s claim to quiet title, and PLCC responded by, inter
alia, raising counterclaims. The August 12, 2020, order of par-
tial summary judgment determined Clason’s quiet title claim
and PLCC’s quiet title counterclaim. However, the order did
not resolve PLCC’s counterclaims for ejectment and unjust
enrichment, which were pending at the time Clason filed his
appeal. Therefore, by reference to § 25-1315(1), the August 12
order was not appealable until either all of PLCC’s counter­
claims were resolved or the quiet title order was properly
- 914 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904certified under § 25-1315(1). We therefore conclude that the
Court of Appeals did not err when it dismissed this appeal
based on § 25-1315.
For completeness, we comment on what PLCC designated as
its fourth “claim” in which it sought attorney fees on the basis
that Clason’s action to quiet title was frivolous and brought
in bad faith. PLCC’s request is not a “claim” for purposes of
§ 25-1315, but, rather, a request made pursuant to § 25-824(4),
which provides in part:
The court shall assess attorney’s fees and costs if, upon
the motion of any party or the court itself, the court finds
that an attorney or party brought or defended an action or
any part of an action that was frivolous or that the action
or any part of the action was interposed solely for delay
or harassment.
We have held that “when a motion for attorney fees under
§ 25-824 is made prior to the judgment, the judgment will not
become final and appealable until the court has ruled upon that
motion.” Salkin v. Jacobsen, 263 Neb. 521, 527, 641 N.W.2d
356, 361 (2002). See, also, Sulu v. Magana, 293 Neb. 148, 879
N.W.2d 674 (2016). And we have determined that notices of
appeal were not taken from a final, appealable order when the
terms of the orders expressly reserved ruling on attorney fees
sought under § 25-824 that were requested in a party’s respon-
sive pleadings. See In re Guardianship & Conservatorship
of Woltemath, 268 Neb. 33, 680 N.W.2d 142 (2004). In the
August 12, 2020, order, the court did not explicitly reserve
ruling on PLCC’s request for attorney fees under § 25-824,
but PLCC had not requested a ruling on the “claim” in its
motion for partial summary judgment. To the extent a ruling
on the request for attorney fees was reserved and not implicitly
denied in the August 12, 2020, order, compare Murray v. Stine,
291 Neb. 125, 864 N.W.2d 386 (2015), the lack of a ruling on
PLCC’s request for attorney fees would serve as a separate rea-
son, independent of the operation of § 25-1315, that the August
12 order was not appealable.
- 915 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 308 Neb. 904CONCLUSION
Based on § 25-1315(1), we conclude that the August 12,
2020, order ruling on competing claims for quiet title was not
appealable because not all of PLCC’s counterclaims have been
resolved. Therefore, on further review, we affirm the order of
the Court of Appeals which dismissed Clason’s appeal for lack
of jurisdiction.
Affirmed.