Jurisdiction: Appeal and Error. A
jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of
__. 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, irrespective of
whether the issue is raised by the parties.
Final Orders: Appeal and Error. A party
cannot move to voluntarily dismiss a case without prejudice,
consent to entry of such an order, and then seek
interlocutory appellate review of an adverse pretrial order.
Jurisdiction: Final Orders: Appeal and
Error. When an order adjudicates fewer than all the
claims of all the parties, appellate jurisdiction cannot be
created by voluntarily dismissing, without prejudice, the
claims on which the court has not yet ruled.
from the District Court for Box Butte County: travis p.
o'GormaN, Judge. Appeal dismissed.
W. Olsen and Adam A. Hoesing, of Simmons Olsen Law Firm,
P.C., for appellant.
J. Nedved, of Keating, O'Gara, Nedved & Peter, P.C.,
L.L.O., and Jon Worthman, of Worthman Law Office, for
HEAVICAN, C.J., WRIGHT, MILLER-LERMAN, CASSEL, STACY, KELCH,
AND FUNKE, JJ.
Neb. 166] StaCy, J.
action involves the enforceability of a covenant not to
compete in a contract for the sale of an aerial spraying
company. The district court granted declaratory judgment in
favor of the seller, finding the covenant was overly broad
and unenforceable. The parties then stipulated to dismiss the
remaining claims without prejudice, and the buyer appealed
the declaratory judgment ruling. Because we hold the
procedure used here did not create a final order and did not
confer appellate jurisdiction, we dismiss the appeal.
February 2011, Tony D. Peterson agreed to sell Last Pass
Aviation, Inc., an aerial spraying company headquartered in
Alliance, Nebraska, to Western Cooperative Company (Westco).
The purchase agreement contained a covenant not to compete,
which prohibited Last Pass Aviation and its principals from
engaging in aerial spraying and chemical sales in the states
of Nebraska, South Dakota, Wyoming, and Colorado for a period
of 10 years.
February 2014, Last Pass Aviation, Peterson, and his son
Lucas J.H. Peterson (collectively Last Pass) filed this
action seeking a declaratory judgment that the covenant not
to compete between Last Pass and Westco was overbroad and
unenforceable. Westco filed an answer and a counterclaim
asking the court to enjoin Last Pass from "selling,
dispersing, delivering or consigning any aerial spraying
services or agricultural chemicals within the states of
Nebraska, South Dakota, Wyoming or Colorado." The court
issued a temporary injunction on April 28, 2014.
Westco filed an amended answer. The amended answer included
two additional counterclaims alleging that Last Pass had
breached the parties' purchase agreement and sought