Ramaekers v. Creighton University , 312 Neb. 248 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/04/2022 01:05 AM CDT
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312 Nebraska Reports
RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248Lauren Ramaekers et al., appellants, v.
Creighton University, a Nebraska
nonprofit corporation, appellee.
___ N.W.2d ___
Filed August 12, 2022. No. S-21-848.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments. The meaning of the judgment is a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
4. 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.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, the party must be appealing from a
final order or a judgment.
6. Injunction: Final Orders. While it is well established that orders relat-
ing to temporary injunctions and restraining orders are not final orders,
it is equally well established that orders entering or denying permanent
injunctions, which leave no issues remaining to be determined by
the trial court, are final orders within the meaning of Neb. Rev. Stat.
§ 25-1902 (Cum. Supp. 2020).
7. Judgments. A judgment’s meaning is determined, as a matter of law, by
the contents of the judgment in question.
8. ____. Unless the language used in a judgment is ambiguous, the effect
of the judgment must be declared in the light of the literal meaning of
the language used.
9. Judgments: Words and Phrases. Ambiguity in a judgment exists when
a word, phrase, or provision therein has, or is susceptible of, at least two
reasonable but conflicting interpretations or meanings.
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 24810. Judgments. If the language of a judgment is ambiguous, there is room
for construction.
11. ____. In ascertaining the meaning of an ambiguous judgment, resort
may be had to the entire record.
12. Judgments: Intent. Doubtful or ambiguous judgments are to have a
reasonable intendment to do justice and avoid wrong.
13. Injunction. Generally, the purpose of a temporary injunction is to pro-
tect the subject matter of litigation and preserve the status quo of the
parties until a determination of the case on the merits.
14. Injunction: Judgments: Moot Question. Where there is a final judg-
ment against the party enjoined, the temporary injunction merges into
the judgment and any questions concerning the propriety of the issuance
of the temporary injunction become moot.
15. Pleadings. The issues in a case are framed by the pleadings.
16. ____. In an answer, the defending party shall state in short and plain
terms the party’s defenses to each claim asserted and shall admit or deny
the averments upon which the adverse party relies.
17. Injunction. There are significant procedural differences between tempo-
rary and permanent injunctions.
18. Injunction: Judgments. Generally, a district court should not order a
judgment on the merits at the temporary injunction stage of proceedings.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Appeal dismissed.
Robert M. Sullivan, of Sullivan Law, P.C., L.L.O., for
appellants.
William F. Hargens, Abigail M. Moland, and Britni A.
Summers, of McGrath, North, Mullin & Kratz, P.C., L.L.O.,
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Ten students at Creighton University (Creighton) appeal from
a district court’s order denying injunctive relief. The threshold
jurisdictional question is whether the order denied only a tem-
porary injunction, and thus was neither final nor appealable,
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248or whether it denied a permanent injunction. Because we find
ambiguity within the order’s four corners, we examine the
record, which shows that only temporary relief was sought and
denied. We therefore lack jurisdiction and dismiss the appeal.
II. BACKGROUND
Because we decide this appeal on jurisdiction, we provide
only a brief background section. Other facts will be set forth in
our analysis section below.
1. Vaccine Mandate
In July 2021, Creighton mandated that its students must be
vaccinated against COVID-19 to register for classes. Creighton
offered students an exemption from the mandate “due to the
Emergency Use Authorization (EUA) status of the [COVID-
19] vaccines.” But to obtain this waiver, students had to
agree in writing to be vaccinated after “the [COVID-19] vac-
cines [were] granted full approval by the [U.S.] Food and
Drug Administration.” On August 23, the Food and Drug
Administration fully approved certain COVID-19 vaccines.
Accordingly, Creighton mandated that students who had
obtained the waiver must receive their first dose of a fully
approved COVID-19 vaccine by September 7, 2021, at 4:30
p.m. Students who failed to do so would be “administratively
withdrawn from [Creighton] and unable to attend classes or be
on campus” after September 10.
2. Complaint for Injunctive Relief
Only 97 minutes before the 4:30 p.m. deadline, four stu-
dents filed a complaint, styled as a “Petition for Injunction
& Praecipe.” They sought to enjoin Creighton from adminis-
tratively withdrawing students who did not comply with its
COVID-19 vaccine policy.
The next day, Creighton’s attorneys filed a “Notice of
Appearance,” but Creighton did not, at that time, file either
a motion to dismiss or an answer. On that same day, the four
students amended their complaint and filed a “Motion for
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248Expedited Ex Parte Hearing.” The amended complaint did not
change the factual allegations but inserted an additional request
in their prayer for relief. The motion sought “an order restor-
ing [them] as students of [Creighton], pending further Order of
the Court.” The motion did not explicitly request a temporary
restraining order or temporary injunction.
The court “granted” the motion and set an expedited hear-
ing date. But before the hearing, a second amended complaint
added and deleted plaintiffs without otherwise altering the
body of the complaint.
3. September 14, 2021, Hearing
The court heard the motion on September 14, 2021. Counsel
for all parties attended and participated. To the extent the
proceedings are relevant to the jurisdictional issue, we sum-
marize them at the appropriate point in the analysis section
below. At the hearing’s end, the court took the motion under
advisement.
Before the court issued any ruling, third and fourth
amended complaints were filed adding additional plaintiffs and
Creighton filed a motion to strike two of the amended com-
plaints. Because the amended complaints never changed the
factual allegations stated in their original complaint, we do not
distinguish between the complaints throughout the remainder
of this opinion. Ultimately, through these amended complaints,
10 students, Lauren Ramaekers, Patrice Quadrel, Sarah Sinsel,
Sydney Case, Anne Clare Culpepper, Emma Carlson, Elliot
Prusa, Avery Gillett, Nikokije Kozic, and Alecsandar Kozic
(collectively Students), pursued the action.
4. September 17, 2021, Hearing
The court held a hearing on Creighton’s motion to strike
on September 17, 2021. Counsel for all parties attended and
participated. For reasons not pertinent here, the court overruled
Creighton’s motion.
But at this hearing, the court also announced its decision on
Students’ motion. To the extent the court’s announcement and
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248its colloquy with counsel relate to the jurisdictional question,
we summarize them in the analysis section below.
5. September 22, 2021, Order
On September 22, 2021, the court issued a written order
(the order). After recounting the September 14 appearances
of counsel, affidavits received, and procedural history, as well
as summarizing the September 17 appearances and procedural
history, the order stated in relevant part:
1. [Ruling on Creighton’s motion to strike.]
2. The court then took up the matter of [Students’]
requests for injunctive relief in [their complaint].
3. Based on arguments of counsel for [Students], the
Court concludes that [Students’] request for injunctive
relief is based on a breach of contract theory. However,
to the extent that there was a contract between [Students]
and [Creighton], and without finding that such a contract
existed, the Court finds that [Students’] agreement to
receive a COVID-19 vaccine once the [Food and Drug
Administration] fully approved a COVID-19 vaccine
became part of that contract.
4. The Court further finds that [Students] have failed to
show irreparable harm.
5. The Court further finds that [Students] have failed to
show a likelihood of success on the merits.
6. For the reasons set forth above, and for the reasons
stated by the Court on the record during the September
17 . . . hearing, including the Court’s reliance upon the
legal analysis in [a Seventh Circuit opinion], the Court
hereby denies [Students’] requests for injunctive relief as
set forth in [Students’ complaint] and, to the extent [the
complaint] and/or their Motion for an Expedited Ex Parte
Hearing could be construed as [m]otions for a [t]emporary
[r]estraining [o]rder or [t]emporary [i]njunction pursuant
to Neb. Rev. Stat. §§ 25-1063 and/or 25-1064 [(Reissue
2016)], those motions are hereby denied.
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248Students filed a timely appeal. We moved the appeal to our
docket. 1
III. ASSIGNMENTS OF ERROR
Students set forth eight assignments of error, all of which, in
various ways, attack the district court’s refusal to grant injunc-
tive relief.
Creighton’s brief, prior to discussing the merits of the
court’s order, asserts that we lack jurisdiction of the appeal.
It contends that the order denied only Students’ request for
temporary injunctive relief and that, therefore, the order was
neither final nor appealable.
IV. STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law. 2
[2] The meaning of the judgment is a question of law. 3
[3] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusions. 4
V. ANALYSIS
1. Jurisdictional Question
[4,5] 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. 5 For an appellate court to
acquire jurisdiction of an appeal, the party must be appealing
from a final order or a judgment. 6
[6] While it is well established that orders relating to tem-
porary injunctions and restraining orders are not final orders,
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
2
In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021).
3
Rice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014).
4
In re Estate of Beltran, supra note 2.
5
Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020).
6
Id.- 254 -
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248it is equally well established that orders entering or denying
permanent injunctions, which leave no issues remaining to be
determined by the trial court, are final orders within the mean-
ing of Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020). 7 For over
150 years, we have repeatedly held that the issuance, 8 denial, 9
or dissolution 10 of a temporary injunction is not a final order.
Therefore, for this court to have jurisdiction for the instant
appeal, the order must not only have denied temporary injunc-
tive relief, but also have denied a permanent injunction.
Students argue that the court did so, citing the language in
the order that stated, “[T]he Court hereby denies [Students’]
requests for injunctive relief as set forth in [their complaint].”
Creighton, on the other hand, argues that the order addressed
only Students’ request for temporary injunctive relief, focusing
on language of the order that recited findings pertinent only to
temporary injunctive relief. We first turn to the principles of
law applicable to determining the meaning of a judgment or
an order.
2. Principles of Law
[7-9] A judgment’s meaning is determined, as a matter of
law, by the contents of the judgment in question. 11 Unless the
7
Waite v. City of Omaha, 263 Neb. 589, 641 N.W.2d 351 (2002).
8
See, Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861
N.W.2d 425 (2015); Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673
N.W.2d 558 (2004); State ex rel. Beck v. Associates Discount Corp.,
162 Neb. 683, 77 N.W.2d 215 (1956); Guaranty Fund Commission v.
Teichmeier, 119 Neb. 387, 229 N.W. 121 (1930); Barkley v. Pool, 102
Neb. 799, 169 N.W. 730 (1918); Young v. City of Albion, 77 Neb. 678, 110
N.W. 706 (1906); Bartram v. Sherman, 46 Neb. 713, 65 N.W. 789 (1896);
School Dist. No. 15 v. Brown, 10 Neb. 440, 6 N.W. 770 (1880).
9
See, Waite v. City of Omaha, supra note 7; Manning v. Connell, 47 Neb.
83, 66 N.W. 17 (1896).
10
See, Waite v. City of Omaha, supra note 7; Abramson v. Bemis, 201 Neb.
97, 266 N.W.2d 226 (1978); Meng v. Coffee, 52 Neb. 44, 71 N.W. 975(1897); Smith v. Sahler, 1 Neb. 310 (1871). See, also, Clark v. Fitch, 32
Neb. 511, 49 N.W. 374 (1891) (declining to dissolve not final).
11
See Kerndt v. Ronan, 236 Neb. 26, 458 N.W.2d 466 (1990).
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248language used in a judgment is ambiguous, the effect of the
judgment must be declared in the light of the literal meaning
of the language used. 12 Ambiguity in a judgment exists when
a word, phrase, or provision therein has, or is susceptible
of, at least two reasonable but conflicting interpretations
or meanings. 13
[10-12] If the language of a judgment is ambiguous, there
is room for construction. 14 In ascertaining the meaning of an
ambiguous judgment, resort may be had to the entire record. 15
Doubtful or ambiguous judgments are to have a reasonable
intendment to do justice and avoid wrong. 16
Although we may not have said so previously, we see no
reason why these principles should not apply to orders—at
least where the order may be final. With the principles in mind,
we turn to the four corners of the order.
3. Four Corners
Near the end of the background section, we extensively
quoted the relevant parts of the order. We need not repeat
them here.
We find the order to be ambiguous. It used language that—
considered in the context of the entire order—can reasonably
be read to have more than one conflicting meaning.
In the order, the court “denie[d] [Students’] requests for
injunctive relief as set forth in [their complaint].” The com-
plaint sought to permanently enjoin Creighton from enforcing
its COVID-19 vaccine policy. Accordingly, that part of the
order could reasonably be read to deny Students’ request for a
permanent injunction.
12
See Bokelman v. Bokelman, 202 Neb. 17, 272 N.W.2d 916 (1979).
13
Carlson v. Carlson, 299 Neb. 526, 909 N.W.2d 351 (2018).
14
Label Concepts v. Westendorf Plastics, 247 Neb. 560, 528 N.W.2d 335(1995), disapproved on other grounds, Weyh v. Gottsch, 303 Neb. 280, 929
N.W.2d 40 (2019).
15
Id.16
Bayne v. Bayne, 302 Neb. 858, 925 N.W.2d 687 (2019).
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248However, a conflicting interpretation arises when that lan-
guage is considered alongside the rest of the order. The court
denied injunctive relief after applying an analytical framework
commonly used by courts only to deny requests for tempo-
rary injunctive relief. 17 Another part of the order, referring to
“[Students’ complaint] and/or their Motion for an Expedited
Ex Parte Hearing,” said that they “could be construed as
[m]otions for a [t]emporary [r]estraining [o]rder or [t]empo-
rary [i]njunction.”
[13,14] If, as Students contend, the order was intended to
deny their request for a permanent injunction, there would have
been no reason for the court to include a temporary injunc-
tion analysis. Generally, the purpose of a temporary injunction
is to protect the subject matter of litigation and preserve the
status quo of the parties until a determination of the case on
the merits. 18 Where there is a final judgment against the party
enjoined, the temporary injunction merges into the judgment
and any questions concerning the propriety of the issuance of
the temporary injunction become moot. 19 To paraphrase our
discussion of a similar situation, a court need not rule on who
won a battle, if it has already decided who won the war. 20
Because the order is ambiguous, we turn to the record to
ascertain its meaning.
4. Meaning in Light of Entire Record
(a) Additional Facts
We now look to the record, focusing on the acts and words
of the parties and the court at the two hearings and in their
17
See, e.g., Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7,
129 S. Ct. 365, 172 L. Ed. 2d 249 (2008).
18
Pennfield Oil Co. v. Winstrom, 272 Neb. 219, 720 N.W.2d 886 (2006).
19
See State ex rel. Douglas v. Ledwith, 204 Neb. 6, 281 N.W.2d 729 (1979).
20
See Melanie M. v. Winterer, 290 Neb. 764, 862 N.W.2d 76 (2015)
(discussing termination of temporary restraining order by overruling of
motion for temporary injunction and sustaining of motion for summary
judgment).
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248filings. As we articulate below, we find that the order denied
only Students’ request for a temporary injunction.
(i) Students’ Motion Sought Temporary Relief
To begin, Students’ motion sought “an order restoring
[them] as students of [Creighton], pending further Order of the
Court.” (Emphasis supplied.) This clearly reflects a request for
a temporary order, to be followed at a later time by something
more—presumably, by a judgment or final order.
(ii) Pleadings Failed to Frame Issues
[15,16] When Students filed their motion, Creighton had
not filed an answer nor had the time expired for the filing of
an answer. The issues in a case are framed by the pleadings. 21
In an answer, the defending party shall state in short and plain
terms the party’s defenses to each claim asserted and shall
admit or deny the averments upon which the adverse party
relies. 22 Long ago, we said that it is always well to have issues
framed before judgment. 23 Treating the hearing on Students’
motion as a trial on the merits would circumvent the issue-
framing function of pleadings. Moreover, it would deprive
Creighton of any opportunity to assert defenses.
(iii) Arguments at September 14, 2021, Hearing
The court began the September 14, 2021, hearing by noting
that Students had not filed a motion for a temporary restrain-
ing order or a motion for temporary injunction. Then, the
court stated, “[Students] are requesting an order . . . restoring
[them] as students of [Creighton]” and “the Court is going to
construe that . . . request by [Students] as . . . requesting tem-
porary relief from this Court, pursuant to [§] 25-1063, which
will equitably permit the Court to consider this in [Students’]
motion as seeking some temporary relief . . . .”
21
In re Petition of Anonymous 5, 286 Neb. 640, 838 N.W.2d 226 (2013).
22
See Neb. Ct. R. Pldg. § 6-1108(b).
23
Tecumseh Nat. Bank v. Harmon, 48 Neb. 222, 66 N.W. 1128 (1896).
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248Neither party contradicted the court’s interpretation of
Students’ motion. The court then instructed the parties “to pro-
ceed accordingly.”
First, the parties submitted affidavits to the court, which the
court—imposing its own limitation—received “for purposes of
this hearing.” Neither party objected to the court’s limitation.
Students and Creighton then argued whether the court should
grant Students’ request for a temporary injunction. Students
began by contending that “the allegations set forth in the [com-
plaint] met the standards necessary for a temporary injunction.
. . . [I]t would be appropriate for the Court to enter an order
of temporary injunction, . . . so we can have more evidence on
this and really open this up and see what’s in there.”
Creighton responded by first noting its difficulties in suf-
ficiently defending against Students’ allegations, because “this
case . . . has been a moving target. The facts, the allegations,
the even purported evidence offered by [Students] has been
evolving . . . .”
Creighton also highlighted perceived deficiencies in
Students’ complaint. Creighton noted, “We’ve got several
people named in the caption of the case. None of them are
identified in . . . the body of the [complaint]. . . . [T]wo of the
plaintiffs have already received the [COVID-19] vaccine. . . .
They’ve not been unenrolled, . . . they don’t have a place in
this lawsuit.”
Creighton concluded by contending that the evidence in
the record did not support Students’ request for a temporary
injunction. For instance, Creighton argued that there was not
“any medical evidence to support” Students’ allegation that
“some [of them] have serious medical conditions which make
the vaccine ‘not recommended’” in the affidavits received by
the court.
In rebuttal, Students conceded that “this case has been a
moving target since we filed it.” However, they argued that
“the nature of a temporary injunction is such that . . . the plead-
ings may not look all that finely tuned originally, but as soon as
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RAMAEKERS V. CREIGHTON UNIVERSITY
Cite as 312 Neb. 248we can get something in place that can allow us all to breathe,
then we can go back in and clean things up quite a bit.”
The court concluded the hearing by taking the matter under
advisement. The court expressed its desire to issue a ruling
quickly “based on the circumstances involving [Students].”
However, the court never indicated it planned to issue a final
ruling on the merits of Students’ complaint.
(iv) Discussion at September 17, 2021, Hearing
Three days later, the court orally announced its ruling on
Students’ request for a temporary injunction. The court stated:
[I]t is the Court’s intention to deny [Students’ com-
plaint] for [i]njunction and/or [t]emporary [r]estraining
order under [§§] 25-1063 and 25-1064, et seq. [Students]
have asserted a kind of a breach of contract theory against
Creighton. . . . [T]he Court does not believe that [Students]
could show any irreparable injury that [Students] would
be able to show a likelihood of succeeding on the merits
of a breach of contract against Creighton.
In response, Students’ attorney asked the court, “I assume,
Your Honor, that this is a final order and that the case has been
dismissed?” The court answered that it was not a final order
and that the case was not dismissed, because the court read
Students’ complaint as “still seeking some breach of contract
related damages, monetary damages. It had claims for unjust
enrichment . . . . [T]he Court’s ruling is only . . . in regards to
the request for the temporary injunction.”
Students’ attorney rebutted the court’s belief that Students
were seeking monetary damages. Their attorney claimed that
the allegations of monetary damages “were simply for purposes
of alleging to the Court the need for a temporary injunction.”
Creighton’s attorney noted that it was immaterial whether
Students were seeking monetary damages, because “a denial
of a request for a temporary injunctive relief does not con-
stitute a dismissal on the merits, so I don’t think the case
stands dismissed. I don’t think it’s a final appealable order at
this point.”
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Cite as 312 Neb. 248The court concluded the hearing without providing a defini-
tive answer on whether it still believed issues remained before
it or whether its denial of Students’ request for a temporary
injunction was a final order. The court stated, “I do not need
to weigh in on [that,] because that’s above my pay grade. So I
will let you all deal with the implications of it . . . .”
(b) Resolution
It is apparent from the record that the order meant only to
deny Students’ request for a temporary injunction. The record
reflected an understanding—by the court and the parties—
that only the temporary injunction was before the court. The
record does not include any stipulation to enter a final judg-
ment based on the evidence adduced in support of a temporary
injunction. 24 Nor did either party file a motion to dismiss or
motion for summary judgment in order to reach the merits of
Students’ complaint. 25
Further, it is evident from the instructions given to the
­parties at the September 14, 2021, hearing that the court
intended only to rule on whether Students were to receive a
temporary injunction. At the hearing, the court informed the
parties that it construed Students’ motion as requesting tem-
porary injunctive relief and instructed the parties “to proceed
accordingly.”
[17] If the court intended to make an ultimate determination
on the merits of Students’ complaint, we believe that it would
have instructed the parties differently. As the U.S. Supreme
Court has explained, there are significant procedural differ-
ences between temporary and permanent injunctions. 26 As the
court stated:
24
See, generally, Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275(2018).
25
See, generally, Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020); Neb. Ct. R.
Pldg. § 6-1112(b).
26
See University of Texas v. Camenisch, 451 U.S. 390, 101 S. Ct. 1830, 68
L. Ed. 2d 175 (1981).
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Cite as 312 Neb. 248The purpose of a preliminary injunction is merely to
preserve the relative positions of the parties until a trial
on the merits can be held. Given this limited purpose, and
given the haste that is often necessary if those positions
are to be preserved, a preliminary injunction is customar-
ily granted on the basis of procedures that are less formal
and evidence that is less complete than in a trial on the
merits. A party thus is not required to prove his case in
full at a preliminary-injunction hearing . . . . 27
Further, the Court warned that it is generally inappropriate for
a federal court at the preliminary injunction stage to give a
final judgment on the merits. 28
[18] While we are not bound by the high court’s discus-
sion or by the federal rules of civil procedure, we agree that a
similar principle should apply to Nebraska trial courts having
equity jurisdiction. Generally, a district court should not order
a judgment on the merits at the temporary injunction stage
of proceedings. 29 Doing so could raise due process concerns,
because, as a federal court has observed in the context of a
federal rule, 30 when a trial court disposes of a case on the
merits after a preliminary injunction hearing without expressly
ordering consolidation, it is likely that one or more of the
parties will not present their entire case at an unconsolidated
preliminary injunction hearing. 31
Here, reading the order as disposing of Students’ com-
plaint on the merits would raise due process concerns. Neither
Students nor Creighton presented its entire case to the court at
27
Id., 451 U.S. at 395.
28
Id. But see Fed. R. Civ. P. 65(a)(2) (allowing federal court to consolidate
preliminary injunction hearing with trial on merits, but only if sufficient
notice is given to parties).
29
See University of Texas v. Camenisch, supra note 26.
30
See Fed. R. Civ. P. 65(a)(2).
31
See Francisco Sánchez v. Esso Standard Oil Co., 572 F.3d 1 (1st Cir.
2009).
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Cite as 312 Neb. 248the September 14, 2021, hearing. As detailed earlier, the argu-
ments were directed toward whether the court should grant
Students’ temporary injunctive relief—not the final disposition
of the claims and any defenses.
Judgments are to have a reasonable intendment to do justice
and avoid wrong. 32 Accordingly, to avoid infringing on the
parties’ due process rights, we find that the order denied only
Students’ request for temporary injunctive relief.
At oral argument, relying upon our 2018 decision in Tilson
v. Tilson, 33 Students argued that even if the order was properly
characterized as a denial of a temporary injunction, it was
nonetheless a final order under § 25-1902. We are not per-
suaded. There, we found that an order denying a request for
temporary relief was not a final order. 34 So, in that case, we
dismissed the appeal for lack of jurisdiction. 35 Students’ reli-
ance on that decision is misplaced.
VI. CONCLUSION
Students appeal from an order that denied only their request
for temporary injunctive relief. For over 150 years, we have
held that such orders are neither final nor appealable. Because
the court’s denial of a temporary injunction was not a final
order, we lack jurisdiction of the appeal and must dismiss it.
Appeal dismissed.
32
See Bayne v. Bayne, supra note 16.
33
Tilson v. Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018).
34
See id.35
See id.