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


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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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    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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    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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    TDP PHASE ONE v. THE CLUB AT THE YARD
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    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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    TDP PHASE ONE v. THE CLUB AT THE YARD
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    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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    TDP PHASE ONE v. THE CLUB AT THE YARD
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    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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    TDP PHASE ONE v. THE CLUB AT THE YARD
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    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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    TDP PHASE ONE v. THE CLUB AT THE YARD
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    [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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    [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
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    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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    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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    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. - 808 -
             Nebraska Supreme Court Advance Sheets
    307 Nebraska Reports
    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.