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Guardian Tax Partners, Inc. v. Skrupa Investment Co.

Supreme Court of Nebraska

January 27, 2017

Guardian Tax Partners, Inc., a Nebraska corporation, appellee,
skrupa investment company, a Nebraska corporation, appellant, and Frank S. Skrupa et al., appellees.

         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. Final Orders: Appeal and Error. A trial court's decision to certify a final judgment pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is reviewed for an abuse of discretion.

         3. 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.

         4. Jurisdiction: Final Orders: Time: Notice: Appeal and Error. In order to vest an appellate court with jurisdiction, a notice of appeal must be filed within 30 days of the entry of the final order.

         5. Final Orders: Appeal and Error. To be appealable, an order must satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 (Reissue 2016) and, additionally, where implicated, Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).

         6. Partition: Final Orders. 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.

         7. Summary Judgment: Final Orders. Partial summary judgments are usually considered interlocutory. They must ordinarily dispose of the whole merits of the case to be considered final.

         8. Actions: Partition. 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."

         [295 Neb. 640] 9. Actions: Parties: Final Orders: Appeal and Error. With the enactment of Neb. Rev. Stat. § 25-1315(1) (Reissue 2016), 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 2016) 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.

         10. Actions. Whether more than one cause of action is stated depends mainly upon (1) whether more than one primary right or subject of controversy is presented, (2) whether recovery on one ground would bar recovery on the other, (3) whether the same evidence would support the different counts, and (4) whether separate causes of action could be maintained for separate relief.

         11. Final Orders: Time: Appeal and Error. An appeal must be filed within 30 days of the final order from which an appeal is taken.

         Appeal from the District Court for Douglas County: Gary B. Randall, Judge.

         Appeal dismissed.

          Kristopher J. Covi and Jay D. Koehn, of McGrath, North. Mullin & Kratz, PC, L.L.O., for appellant.

          Steven G. Ranum, of Croker, Huck, Kasher, DeWitt. Anderson & Gonderinger, L.L.C., for appellee Guardian Tax Partners, Inc.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Cassel, J.


         The district court entered a judgment in partition, [1] albeit one styled as a partial summary judgment order, confirming ownership shares and implicitly directing partition to be made. More than 30 days later, a party obtained the court's [295 Neb. 641] certification of the order as final under the statute governing cases involving multiple claims or parties.[2] Because the partition presented only a single cause of action and the order settled the title claims of all parties, the statute was not implicated and the appeal time ran from the entry of the order. We therefore lack jurisdiction and dismiss the appeal.


         At a treasurer's tax sale, Guardian Tax Partners, Inc. (Guardian), purchased a 1-percent interest in certain Douglas County real estate owned by Skrupa Investment Company (Skrupa Investment). Later, Guardian obtained and recorded a treasurer's tax deed to the 1-percent interest in the real estate.

         Guardian then filed a complaint for partition against Skrupa Investment, alleging that Guardian owned 1 percent and Skrupa Investment owned 99 percent. The complaint also named as defendants Frank Skrupa (using three versions of his name with different middle initials) and Mary A. Skrupa, and asserted that Frank and Mary may claim an interest in the real estate. And the complaint also included the usual formulation for unknown persons as additional parties. Mary and the unknown parties were served by publication.

         Skrupa Investment and Frank filed an answer, alleging that Guardian's tax deed was invalid because of Guardian's failure to comply with certain statutory notice requirements. With the answer, Skrupa Investment (but not Frank) filed a counterclaim to quiet title, claiming 100-percent interest in the property. The title determination depended upon whether Guardian possessed a valid tax deed, which, in turn, depended upon whether it gave the required statutory notice to the record owner.

         Guardian filed a "Motion for Partial Summary Judgment" on Skrupa Investment's counterclaim and on the issue of whether Guardian had a valid tax deed. After a hearing, the district court entered an order on July 24, 2015, finding that the tax [295 Neb. 642] deed was valid "regardless of whether [Skrupa Investment] successfully rebutted the presumption of the Tax Deed's validity, [because Guardian] complied with all of the necessary statutory requirements." Thus, the July 24 order resolved all title issues ...

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