Clason v. LOL Investments , 308 Neb. 904 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    04/23/2021 08:09 AM CDT
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CLASON v. LOL INVESTMENTS
    Cite as 
    308 Neb. 904
    Steven 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.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    CLASON v. LOL INVESTMENTS
    Cite as 
    308 Neb. 904
    Terry 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
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    308 Nebraska Reports
    CLASON v. LOL INVESTMENTS
    Cite as 
    308 Neb. 904
    pending 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.
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    308 Nebraska Reports
    CLASON v. LOL INVESTMENTS
    Cite as 
    308 Neb. 904
    The 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
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    308 Nebraska Reports
    CLASON v. LOL INVESTMENTS
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    308 Neb. 904
    August 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
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    308 Nebraska Reports
    CLASON v. LOL INVESTMENTS
    Cite as 
    308 Neb. 904
    other 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.
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    308 Nebraska Reports
    CLASON v. LOL INVESTMENTS
    Cite as 
    308 Neb. 904
    In 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
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    CLASON v. LOL INVESTMENTS
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    308 Neb. 904
    and 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
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    CLASON v. LOL INVESTMENTS
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    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
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    CLASON v. LOL INVESTMENTS
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    have 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
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    certified 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.
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    CONCLUSION
    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.