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Last Pass Aviation, Inc. v. Wester Cooperative Co.

Supreme Court of Nebraska

March 24, 2017

LAST PASS AVIATION, INC., ET AL., APPELLEES,
v.
WESTER COOPERATIVE COMPANY, APPELLANT.

          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. __: __. 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.

         3. 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.

         4. 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.

         Appeal from the District Court for Box Butte County: travis p. o'GormaN, Judge. Appeal dismissed.

          Steven W. Olsen and Adam A. Hoesing, of Simmons Olsen Law Firm, P.C., for appellant.

          Gary J. Nedved, of Keating, O'Gara, Nedved & Peter, P.C., L.L.O., and Jon Worthman, of Worthman Law Office, for appellees.

          HEAVICAN, C.J., WRIGHT, MILLER-LERMAN, CASSEL, STACY, KELCH, AND FUNKE, JJ.

          [296 Neb. 166] StaCy, J.

         This 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.

         FACTS

         In 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.

         In 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.

         Subsequently, Westco filed an amended answer. The amended answer included two additional counterclaims alleging that Last Pass had breached the parties' purchase agreement and sought damages ...


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