Southwest Omaha Hospitality v. Werner-Robertson

Decisions of the Nebraska Court of Appeals
930 20 NEBRASKA APPELLATE REPORTS
V. CONCLUSION
We find no abuse of discretion in the alimony award.
Accordingly, we affirm the decision of the district court to
award Kurt alimony in the amount of $2,000 per month for a
period of 84 months.
Affirmed.
Southwest Omaha Hospitality, L.P., appellant, v.
Gail Werner-Robertson et al., appellees.
___ N.W.2d ___
Filed June 25, 2013. No. A-12-1008.
1. 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.
2. Actions: Parties: Final Orders: Appeal and Error. With the enactment of Neb.
Rev. Stat. § 25-1315(1) (Reissue 2008), 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 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.
3. Final Orders: Appeal and Error. Certification of a final judgment must be
reserved for the unusual case in which the costs and risks of multiplying the
number of 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.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Appeal dismissed.
Rodney K. Vincent and Darla J. Johnson, of Vincent Law
Office, for appellant.
No appearance for appellees.
Irwin, Moore, and Pirtle, Judges.
Irwin, Judge.
I. INTRODUCTION
This lawsuit began in June 2005. In a 2011 appeal to this
court, we dismissed the appeal for the reason that no final,
Decisions of the Nebraska Court of Appeals
SOUTHWEST OMAHA HOSPITALITY v. WERNER-ROBERTSON 931
Cite as 20 Neb. Ct. App. 930appealable order existed because all of the claims relating to
all of the parties had not been disposed of. We now have the
second appearance of this case on appeal and dismiss for the
same reason—there is no final, appealable order, despite the
district court’s attempt to certify that there was a final, appeal-
able order. Such a certification is reserved for the “unusual
case” in which the pressing needs of the litigants for an early
and separate judgment as to some claims or parties outweigh
the costs and risks of multiplying the number of proceedings
and of overcrowding the appellate docket. The power Neb.
Rev. Stat. § 25-1315(1) (Reissue 2008) 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.
II. BACKGROUND
This is the second appearance of this case before this
court. In June 2005, Southwest Omaha Hospitality, L.P. (SOH),
and numerous other plaintiffs brought an action against Gail
Werner-Robertson; GWR Investments, Inc.; CGS I, Inc.; and
Van Dorn Management, L.L.C., in which the plaintiffs asserted
several causes of action, including breach of contract, breach
of fiduciary duty, and negligence in connection with the pur-
chase and financing of an Omaha hotel. In an appeal docketed
in this court as case No. A-11-761, SOH appealed from an
order which granted, in part, the defendants’ motion to dismiss
the fifth amended complaint and which ordered SOH to file a
sixth amended complaint. That appeal was dismissed for lack
of a final, appealable order.
In the instant case, SOH has appealed from some prior orders
of the district court, as well as its most recent order, entered
on October 17, 2012. This order granted summary judgment
in favor of defendant Werner-Robertson and dismissed the
seventh amended complaint as to her. The court also dismissed
defendants GWR Investments and Van Dorn Management as
to SOH’s claims of gross negligence and promissory estop-
pel, but found that SOH should be able to pursue its claims
of negligence against them. The court noted that counts 1, 2,
Decisions of the Nebraska Court of Appeals
932 20 NEBRASKA APPELLATE REPORTS
4 through 7, and 9 remained as to those two defendants. SOH
appealed to this court on October 25.
III. ANALYSIS
[1] 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.
Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205(2012). While the district court’s order terminated the action
as to one of the defendants, the existence of multiple parties
implicates § 25-1315(1), which provides, in part:
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 dismissing the complaint against Werner-Robertson, the
court stated that “there is no just reason for delay,” language
that is required when a court certifies an order as final for
purposes of § 25-1315(1). The court did not explicitly cite
§ 25-1315, nor did it make an express direction for the entry
of a final judgment. The order also did not include the court’s
reasoning for certifying its order under § 25-1315(1), if that
was, in fact, what it was trying to accomplish.
[2] There are three elements constituting a certification pur-
suant to § 25-1315(1). 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 Neb.
Rev. Stat. § 25-1902 (Reissue 2008) 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. Cerny v. Todco Barricade Co., 273
Neb. 800, 733 N.W.2d 877 (2007). The instant case involves
Decisions of the Nebraska Court of Appeals
SOUTHWEST OMAHA HOSPITALITY v. WERNER-ROBERTSON 933
Cite as 20 Neb. Ct. App. 930multiple parties as well as a final order dismissing Werner-
Robertson from the action. However, the district court failed
to properly certify the order under § 25-1315(1) by not invok-
ing the statutory language of both “express determination”
and “express direction” and by not following the dictate in
Cerny to make specific findings. To the extent that the court
intended to make such a certification, it abused its discre-
tion. See Murphy v. Brown, 15 Neb. Ct. App. 914, 738 N.W.2d
466 (2007).
[3] We caution here that the Cerny decision has put sub-
stantial limitations on circumstances when a trial court may
properly certify an order or judgment as ripe for an appeal. We
remind the trial court that the court in Cerny 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
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.
273 Neb. at 809-10, 733 N.W.2d at 886.
Because the district court’s order does not dispose of all
of the claims against all of the parties, and does not make
an express determination and direction under § 25-1315, this
appeal must be dismissed for lack of jurisdiction.
IV. CONCLUSION
To the extent that the district court was attempting to
certify its October 17, 2012, order pursuant to § 25-1315, it
abused its discretion. The district court’s order is not final
and appealable.
Appeal dismissed.