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Herman Trust v. Brashear 711 Trust

Court of Appleals of Nebraska

February 17, 2015

HERMAN TRUST, APPELLEE,
v.
BRASHEAR 711 TRUST, APPELLANT. HERMAN TRUST, APPELLEE,
v.
BRASHEAR LLP, APPELLANT. HERMAN TRUST, APPELLEE,
v.
KERMIT A. BRASHEAR, APPELLANT

Page 432

[Copyrighted Material Omitted]

Page 433

Appeals from the District Court for Douglas County: Timothy P. Burns, Judge.

Steven D. Davidson, of Baird Holm, L.L.P., for appellants.

James P. Waldron and Christopher J. Tjaden, of Gross & Welch, P.C., L.L.O., for appellee.

MOORE, Chief Judge, and INBODY and BISHOP, Judges.

OPINION

Page 434

[22 Neb.App. 760] Bishop, Judge.

The present interlocutory appeals arise out of three separate but related actions filed by the Herman Trust against Kermit A. Brashear; Brashear LLP, his law practice; and the Brashear 711 Trust (the 711 Trust), a nominee trust for the benefit of Brashear and his wife (collectively the Brashears), to recover on a promissory note and personal guaranties executed by the Brashears. The Brashears filed separate motions to dismiss in each case, claiming that the lawsuits were filed prior to the expiration or termination of a tolling agreement executed by the Brashears. The district court overruled the motions to dismiss, finding that the tolling agreement applied to professional negligence claims only and not the claims at issue. The Brashears now appeal from the district court's order denying their motions to dismiss, claiming this court has appellate jurisdiction to review the district court's order under the collateral order doctrine. We disagree and dismiss all three appeals for lack of jurisdiction.

Page 435

BACKGROUND

Brashear is a licensed Nebraska attorney and the sole equity partner of Brashear LLP. Brashear provided legal services to R.L. Herman, his family, and his business interests for more than 30 years. Herman served as trustee of the Herman Trust.

On January 17, 2011, the 711 Trust executed and delivered to the Herman Trust a promissory note (the Note) in the principal amount of $764,000, with an interest rate of 5 percent per annum. The Note provided that the commercial building owned by the 711 Trust, and occupied by Brashear LLP, would be used as collateral for the loan. Pursuant to the Note, it was to be repaid in equal monthly interest-only payments commencing on February 17. The principal was not required to be repaid until the sale of the building, until the death of Brashear, or until October 12, 2012, whichever occurred first. The Note provided that upon the happening of one of those events, the repayment of the full principal amount plus all accrued interest was due within 30 days.

[22 Neb.App. 761] In connection with the Note, on January 17, 2011, Brashear LLP and Brashear, individually, each executed a personal guaranty of the Note, agreeing to unconditionally and irrevocably guarantee ...


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