Jlee Rafert et al., appellants and cross-appellees.
Robert J. Meyer, defendant and third-party PLAINTIFF, APPELLEE AND CROSS-APPELLANT, AND Gerald C. Bryce et al., third-party DEFENDANTS, APPELLEES.
Jurisdiction: Appeal and Error. A
jurisdictional question which does not involve a factual
dispute is determined by an appellate court as a matter of
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.
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.
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).
Actions: Parties: Final Orders: Appeal and
Error. Neb. Rev. Stat. 25-1315(1) (Reissue 2016) is
implicated where there are multiple causes of action or
multiple parties and the court enters a final order as to one
or more but fewer than all of the causes of action or
___: ___: ___. 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
Neb. 462] 7. Statutes: Final Orders:
Intent. The intent behind Neb. Rev. Stat. §
25-1315(1) (Reissue 2016) was to prevent interlocutory
appeals, not to make them easier.
Judgments: Parties: Appeal and Error.
Certification of a final judgment must be reserved for the
unusual case in which the costs and risks of multiplying the
number of proceedings and of overcrowding the appellate
docket are outbalanced by pressing needs of the litigants for
an early and separate judgment as to some claims or parties.
Courts: Judgments. When a trial court
concludes that entry of judgment under Neb. Rev. Stat. §
25-1315(1) (Reissue 2016) is appropriate, it should
ordinarily make specific findings setting forth the reasons
for its order.
___: ___. In determining whether certification is warranted,
a trial court must take into account judicial administrative
interests as well as the equities involved.
___: ___. A trial court considering certification of a final
judgment should weigh factors such as (1) the relationship
between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might or might not be
mooted by future developments in the trial court; (3) the
possibility that the reviewing court might be obliged to
consider the same issue a second time; (4) the presence or
absence of a claim or counterclaim which could result in
setoff against the judgment sought to be made final; and (5)
miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like.
Actions: Parties. The basic function of
third-party practice is the original defendant's seeking
to transfer to the third-party defendant the liability
asserted by the original plaintiff.
___: ___. The policy underlying third-party practice is to
avoid circuity of actions and multiplicity of suits, as well
as to expedite the resolution of secondary actions arising
out of or as a consequence of the same facts involved in the
action originally instituted.
from the District Court for Richardson County: Daniel E.
Bryan, Jr., Judge. Order vacated, and appeal dismissed.
J. Nedved, of Keating, O'Gara, Nedved & Peter, PC,
L.L.O., for appellants.
C. Laughlin and Jacqueline M. DeLuca, of Fraser Stryker,
P.C., L.L.O., for appellee Robert J. Meyer.
Neb. 463] Heavican, C.J., Miller-Lerman, Cassel, Stacy,
Kelch, and Funke, JJ.
an insured had obtained life insurance policies and named her
trust as the owner, her insurance agent stole the renewal
premiums and the policies lapsed. The insured and the
trust's beneficiaries sued the trustee, and the trustee
brought a third-party claim against the agent. The district
court bifurcated the trial. Pursuant to a jury verdict on the
first stage, the court entered an order against the trustee.
But before trial on the third-party claim, the court
certified its order as final. Because we conclude the
certification was an abuse of discretion, we dismiss the
appeal for lack of jurisdiction.
Rafert spoke with an insurance agent, Gerald C. Bryce, about
purchasing life insurance policies to be put in a trust for
the benefit of her children. Bryce arranged for his cousin,
Robert J. Meyer, to prepare a trust instrument and to serve
as trustee of the trust. In March 2009, Rafert executed the
trustee, Meyer thereafter signed three applications for life
insurance that named Rafert as the insured and the trust as
the owner of the policies. On each application for insurance,
Meyer provided an address in South Dakota for himself as
trustee. But Meyer was a resident of Nebraska, and he had no
intent to pick up any mail sent to the South Dakota address.
After signing the applications, Meyer never traveled to South
Dakota to retrieve mail nor did he have mail from the South
Dakota address forwarded to him. After signing the
applications for insurance, Meyer considered his duties to
Bryce and Rafert to be completed. Meyer testified that [298
Neb. 464] Bryce, who Meyer understood was operating as
Rafert's agent, told Meyer that he would take care of
having a successor trustee appointed.
2009, Rafert paid initial premiums on the policies totaling
$262, 006. In 2010, the insurers sent notices to Meyer at the
South Dakota address that premiums were due and that the
policies were in danger of lapsing. Once the policies lapsed,
the insurers sent notices to the South Dakota address
advising that the policies could be reinstated. Because the
notices were sent to the South Dakota ...