Rafert v. Meyer

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/02/2018 08:16 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
RAFERT v. MEYER
Cite as 298 Neb. 461
Jlee R afert et al., appellants and cross-appellees,
v. Robert J. M eyer, defendant and third -party
plaintiff, appellee and cross-appellant, and
Gerald C. Bryce et al., third -party
defendants, appellees.
___ N.W.2d ___
Filed December 22, 2017. No. S-16-1116.
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.
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.
4. Final Orders: Appeal and Error. To be appealable, an order must sat-
isfy the final order requirements of Neb. Rev. Stat. § 25-1902 (Reissue
2016) and, additionally, where implicated, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016).
5. Actions: Parties: Final Orders: Appeal and Error. Neb. Rev. Stat.
25-1315(1) (Reissue 2016) is implicated 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 of the causes of action or parties.
6. ____: ____: ____: ____. With the enactment of Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016), 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 Neb.
Rev. Stat. § 25-1902 (Reissue 2016) 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.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
RAFERT v. MEYER
Cite as 298 Neb. 461
7. Statutes: Final Orders: Intent. The intent behind Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016) was to prevent interlocutory appeals, not
to make them easier.
8. Judgments: Parties: Appeal and Error. 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 pressing needs of the litigants for
an early and separate judgment as to some claims or parties.
9. Courts: Judgments. When a trial court concludes that entry of judg-
ment under Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is appropriate,
it should ordinarily make specific findings setting forth the reasons for
its order.
10. ____: ____. In determining whether certification is warranted, a trial
court must take into account judicial administrative interests as well as
the equities involved.
11. ____: ____. A trial court considering certification of a final judgment
should weigh factors such as (1) the relationship between the adjudi-
cated 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 judgment
sought to be made final; and (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial, fri-
volity of competing claims, expense, and the like.
12. Actions: Parties. The basic function of third-party practice is the
original defendant’s seeking to transfer to the third-party defendant the
liability asserted by the original plaintiff.
13. ____: ____. The policy underlying third-party practice is to avoid circu-
ity of actions and multiplicity of suits, as well as to expedite the resolu-
tion of secondary actions arising out of or as a consequence of the same
facts involved in the action originally instituted.
Appeal from the District Court for Richardson County:
Daniel E. Bryan, Jr., Judge. Order vacated, and appeal
dismissed.
Gary J. Nedved, of Keating, O’Gara, Nedved & Peter, P.C.,
L.L.O., for appellants.
Mark C. Laughlin and Jacqueline M. DeLuca, of Fraser
Stryker, P.C., L.L.O., for appellee Robert J. Meyer.
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
RAFERT v. MEYER
Cite as 298 Neb. 461
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
Cassel, J.
INTRODUCTION
After an insured had obtained life insurance policies and
named her trust as the owner, her insurance agent stole the
renewal premiums and the policies lapsed. The insured and the
trust’s beneficiaries sued the trustee, and the trustee brought a
third-party claim against the agent. The district court bifurcated
the trial. Pursuant to a jury verdict on the first stage, the court
entered an order against the trustee. But before trial on the
third-party claim, the court certified its order as final.1 Because
we conclude the certification was an abuse of discretion, we
dismiss the appeal for lack of jurisdiction.
BACKGROUND
Jlee Rafert spoke with an insurance agent, Gerald C. Bryce,
about purchasing life insurance policies to be put in a trust
for the benefit of her children. Bryce arranged for his cousin,
Robert J. Meyer, to prepare a trust instrument and to serve as
trustee of the trust. In March 2009, Rafert executed the irrevo-
cable trust.
As trustee, Meyer thereafter signed three applications for
life insurance that named Rafert as the insured and the trust
as the owner of the policies. On each application for insur-
ance, Meyer provided an address in South Dakota for himself
as trustee. But Meyer was a resident of Nebraska, and he
had no intent to pick up any mail sent to the South Dakota
address. After signing the applications, Meyer never traveled
to South Dakota to retrieve mail nor did he have mail from
the South Dakota address forwarded to him. After signing
the applications for insurance, Meyer considered his duties
to Bryce and Rafert to be completed. Meyer testified that
1
See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).
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RAFERT v. MEYER
Cite as 298 Neb. 461
Bryce, who Meyer understood was operating as Rafert’s
agent, told Meyer that he would take care of having a succes-
sor trustee appointed.
In 2009, Rafert paid initial premiums on the policies total-
ing $262,006. In 2010, the insurers sent notices to Meyer at
the South Dakota address that premiums were due and that the
policies were in danger of lapsing. Once the policies lapsed,
the insurers sent notices to the South Dakota address advising
that the policies could be reinstated. Because the notices were
sent to the South Dakota address and Meyer did not obtain
mail from that address, Meyer and Rafert were unaware that
the policies had lapsed.
Between August 2010 and July 2012, Rafert gave Bryce
checks totaling $242,391.03 for renewal premiums, made pay-
able to Bryce’s insurance company, Ag/Insurance Services,
Inc. (Ag). Rafert believed that Bryce was forwarding the
checks to the insurers; however, she learned that Bryce stole
the payments and that her insurance policies had lapsed.
Rafert and her children (collectively appellants) sued
Meyer for breach of his duties as the trustee. The complaint
alleged that Meyer breached his fiduciary duties in a num-
ber of ways, and it sought to recover all premiums paid by
Rafert in the total amount of $514,847.03. As an affirmative
defense, Meyer alleged that appellants’ damages were caused
by Bryce, Paradigm Financial Services, L.L.C. (Paradigm),
and Ag.
Meyer filed a third-party complaint against Bryce, Paradigm,
and Ag. He alleged that the lapse of the policies was due to
their negligence and that they were responsible for the dam-
ages for which appellants alleged Meyer was liable. In Bryce’s
responsive pleading, he asserted several affirmative defenses.
He claimed that the causes of action against him were barred
under Neb. Rev. Stat. § 25-21,185.11 (Reissue 2016), because
appellants had released Bryce from all liability that he may
have in this matter. Paradigm and Ag filed similar respon-
sive pleadings.
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Nebraska Supreme Court A dvance Sheets
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RAFERT v. MEYER
Cite as 298 Neb. 461
The district court ordered that Meyer’s third-party claim be
separately set for trial after the trial on the merits of appellants’
suit against Meyer. Following a jury trial of appellants’ lawsuit
against Meyer, the court accepted the jury’s verdict in favor
of appellants and its determination of damages in the amount
of $60,000.
On November 9, 2016, the district court entered a “Judgement
Order.” The order entered judgment on behalf of appellants and
against Meyer in the amount of $59,086.85, which represented
the jury’s verdict of $60,000, less a credit of $913.15. It fur-
ther entered judgment of $15,149.37 in appellants’ favor and
against Meyer for attorney fees.
Appellants filed a motion for certification. They requested
that the district court certify the November 2016 order as a
final order as to their cause of action against Meyer. They
asserted that “[t]he adjudication of the third-party action will
not affect the issues on appeal and the Appellate Court will not
review the same issue twice.”
During the hearing on the motion, the district court first gave
Meyer 10 days to amend his third-party complaint in order
to add other individuals who worked for Ag. In discussing
Meyer’s request and immediately before the court addressed
the certification motion, counsel for Bryce, Paradigm, and
Ag stated that “the basis of the third-party complaint all has
to do with the first-party complaint. . . . [I]f there is no judg-
ment against [Meyer], then there is no claim against [Bryce,
Paradigm, and Ag] or anybody else . . . .” With respect to the
motion for certification, the court stated:
I know the Court generally doesn’t like to do that. They
want me to try the whole thing and get it over with, but
as I’m listening to this, I realize it’s just going to be a
long time before they even get — it’d probably be three
or four months before they can even get ready to try
their case.
The court further stated, “I don’t know how — I assume that
the Court will grant — will grant your request, but I never
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Nebraska Supreme Court A dvance Sheets
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RAFERT v. MEYER
Cite as 298 Neb. 461
know because they could find it — not a final order, but I
assume that they will based on my certification.”
The district court entered an order granting the motion for
certification. The order stated:
The Court finds and certifies the Judgement Order entered
on November 9, 2016 is a Final Order within the mean-
ing of Neb. Rev. Stat. §25-1902 [(Reissue 2016)] as to
the cause of action for breach of fiduciary duty brought
by [appellants] against . . . Meyer and all issues associ-
ated with [appellants’] claims against [Meyer]. The Court
further finds that pursuant to Neb. Rev. Stat. §25-1315(1),
there is no just reason for the delay of an appeal.
On that same day, appellants filed a notice of appeal. We
ordered supplemental briefing, which we have now considered,
regarding the propriety of the certification.
ASSIGNMENTS OF ERROR
Although appellants assign error to the proceedings and
Meyer assigns error on cross-appeal, we do not reach the
assignments.
STANDARD OF REVIEW
[1,2] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law.2 A trial court’s decision to certify a final judgment pursu-
ant to § 25-1315(1) is reviewed for an abuse of discretion.3
ANALYSIS
[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.4 In order to vest
2
Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d
825 (2017).
3
Id.
4
Id.
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RAFERT v. MEYER
Cite as 298 Neb. 461
an appellate court with jurisdiction, a notice of appeal must
be filed within 30 days of the entry of the final order.5 To be
appealable, an order must satisfy the final order requirements
of Neb. Rev. Stat. § 25-1902 (Reissue 2016) and, additionally,
where implicated, § 25-1315(1).6
[5,6] Section 25-1315(1) is implicated 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
of the causes of action or parties.7 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 imme-
diate appeal.8 All three components are met here, but we are
concerned with the propriety of the court’s determination that
there is no just reason for delay.
[7,8] The intent behind § 25-1315(1) was to prevent inter-
locutory appeals, not to make them easier.9 Ten years ago, we
instructed that
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 pressing needs of the
litigants for an early and separate judgment as to some
claims or parties. The power § 25-1315(1) confers upon
5
Id.
6
Id.
7
See id.
8
Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391
(2015).
9
See id.
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RAFERT v. MEYER
Cite as 298 Neb. 461
the trial judge should only be used “‘“in the infrequent
harsh case”’” as an instrument for the improved admin-
istration of justice, based on the likelihood of injustice or
hardship to the parties of a delay in entering a final judg-
ment as to part of the case.10
The message that certification must be reserved for the “unusual
case” has been repeated numerous times.11
[9] Nebraska courts have also repeatedly stated that when a
trial court concludes entry of judgment under § 25-1315(1) is
appropriate, it should ordinarily make specific findings setting
forth the reasons for its order.12 Here, the court’s order merely
used the language of the statute and did not explain why cer-
tification was appropriate. While the absence of detailed find-
ings by the trial court does not require automatic dismissal,13
it is difficult to accord deference to a court’s decision when
there is no reasoning to support it. We once again remind
trial courts that a decision to certify an order as final under
§ 25-1315(1) should be supported by the court’s reasoning for
doing so.
Without specific findings to support the district court’s cer-
tification, we turn to the record in search of some indication
10
Cerny v. Todco Barricade Co., 273 Neb. 800, 809-10, 733 N.W.2d 877,
886 (2007).
11
See, Castellar Partners v. AMP Limited, supra note 8; Poppert v. Dicke,
275 Neb. 562, 747 N.W.2d 629 (2008) (Gerrard, J., concurring); Southwest
Omaha Hospitality v. Werner-Robertson, 20 Neb. Ct. App. 930, 834 N.W.2d
617 (2013); Halac v. Girton, 17 Neb. Ct. App. 505, 766 N.W.2d 418 (2009);
Sand Livestock Sys. v. Svoboda, 17 Neb. Ct. App. 28, 756 N.W.2d 299 (2008);
Jones v. Jones, 16 Neb. Ct. App. 452, 747 N.W.2d 447 (2008); Murphy v.
Brown, 15 Neb. Ct. App. 914, 738 N.W.2d 466 (2007).
12
See, Castellar Partners v. AMP Limited, supra note 8; Cerny v. Todco
Barricade Co., supra note 10; Southwest Omaha Hospitality v. Werner-
Robertson, supra note 11; Halac v. Girton, supra note 11; Sand Livestock
Sys. v. Svoboda, supra note 11; Jones v. Jones, supra note 11; Murphy v.
Brown, supra note 11.
13
See Sand Livestock Sys. v. Svoboda, supra note 11.
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Cite as 298 Neb. 461
of an exceptional need for immediate appellate intervention.14
Appellants’ motion requested certification for the following
reasons: (1) No appeal could move forward until the third-
party claim between Meyer and the third-party defendants
was resolved, (2) delaying the appeal would be contrary to
the benefits achieved in the bifurcation of breach of fiduciary
duty action and the third-party claim, (3) the adjudication of
the third-party claim would not affect the issues on appeal
and the appellate court would not review the same issue
twice, and (4) the breach of fiduciary duty action had been
in litigation since 2013 and further delay of an appeal would
unnecessarily lengthen that time. And we can glean from
the court’s statement during the hearing on the motion for
certification that it was concerned about the delay in trying
the case Meyer brought against Bryce and the other third-
party defendants.
[10,11] In determining whether certification is warranted,
a trial court must take into account judicial administrative
interests as well as the equities involved.15 A trial court con-
sidering certification of a final judgment should weigh factors
such as (1) the relationship between the adjudicated and unad-
judicated 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 judgment sought to be made final;
and (5) miscellaneous factors such as delay, economic and
solvency considerations, shortening the time of trial, frivol-
ity of competing claims, expense, and the like.16 As a starting
point for considering certification of a final judgment, it is
14
See Castellar Partners v. AMP Limited, supra note 8.
15
Id.
16
Cerny v. Todco Barricade Co., supra note 10.
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RAFERT v. MEYER
Cite as 298 Neb. 461
appropriate for the trial court to consider whether the claims
under review are separable from the others remaining 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.17
[12,13] We begin by examining the interrelationship
between the adjudicated and unadjudicated claims. Appellants
claim in their supplemental brief that there is no relationship
between the claims. But that belies the nature of a third-party
claim. The basic function of third-party practice is the original
defendant’s seeking to transfer to the third-party defendant
the liability asserted by the original plaintiff.18 A third-party
claim may be asserted only when the third party’s liability is
in some way dependent on the outcome of the main claim or
when the third party is secondarily liable to defendant.19 Thus,
some degree of relatedness is inherent in a suit involving a
third-party claim. “‘The policy underlying third-party practice
is to avoid circuity of actions and multiplicity of suits, as well
as to expedite the resolution of secondary actions arising out
of or as a consequence of the same facts involved in the action
originally instituted.’”20
The facts also demonstrate the interrelationship of the
claims. “When the dismissed and surviving claims are factu-
ally and legally overlapping or closely related, fragmentation
of the case is to be avoided except in ‘“unusual and com-
pelling circumstances.”’”21 Here, appellants sued Meyer for
breach of fiduciary duties. His use of a mailing address in
17
Id.
18
AgriStor Credit Corp. v. Radtke, 218 Neb. 386, 356 N.W.2d 856 (1984).
19
Id.
20
Id. at 390, 356 N.W.2d at 859.
21
Cerny v. Todco Barricade Co., supra note 10, 273 Neb. at 813, 733
N.W.2d at 888-89.
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South Dakota—that he did not check or have mail forwarded
from—prevented appellants and Meyer from knowing that
the checks Rafert gave to Bryce were not being used to pay
the premiums on the insurance policies. Because Bryce stole
those checks, Meyer claims that Bryce is the proximate cause
of appellants’ damages. And on cross-appeal, Meyer brings up
issues related to Bryce’s settlement with Rafert’s husband, in
connection with which Rafert dismissed her lawsuit against
Bryce—a lawsuit that alleged the same damages as her law-
suit against Meyer. Here, there is overlap—both factually
and legally—between appellants’ lawsuit against Meyer and
Meyer’s third-party claim against Bryce, Paradigm, and Ag.
“It is uneconomical for an appellate court to review facts on
an appeal following a . . . certification that it is likely to be
required to consider again when another appeal is brought after
the district court renders its decision on the remaining claims
or as to the remaining parties.”22
The parties contend that certification was appropriate
because a reviewing court would not be obliged to consider
the same issues a second time. They highlight that appel-
lants’ claim against Meyer was for breach of fiduciary duties
and that Meyer’s claim against the third-party defendants
was for contribution. And they contend that the contribution
claim would not involve any of the issues currently on appeal.
Appellants go a step further and argue that the contribution
claim cannot even be adjudicated until the amount Meyer is
required to pay appellants is finally determined. But it would
be most efficient for the reviewing court to have the claims
presented for review as a unified package.
The circumstances here do not make this the “unusual
case.” In urging us to accept jurisdiction over the appeal,
Meyer argues that our resolution of the issues on appeal could
22
10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 at
110 (2014).
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eliminate the need for a trial of his third-party claim. While we
understand Meyer’s desire for an early appeal, § 25-1315 was
not intended to multiply appeals merely upon the uncertain
hope that doing so might avoid future proceedings. According
to the district court, there probably would be a delay of 3 to
4 months before the third-party complaint would be ready for
trial. But nothing in the record suggested that such a delay
would cause an unusual hardship for the parties. We conclude
that the court abused its discretion in certifying the November
9, 2016, order as final under § 25-1315(1).
CONCLUSION
We conclude that the district court abused its discretion in
certifying the November 9, 2016, order as final. We there-
fore vacate the court’s order certifying a final judgment, and
because there is no final judgment, we dismiss the appeal for
lack of jurisdiction.
Order vacated, and appeal dismissed.
Wright, J., not participating.