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Rafert v. Meyer

Supreme Court of Nebraska

December 22, 2017

Jlee Rafert et al., appellants and cross-appellees.
v.
Robert J. Meyer, defendant and third-party PLAINTIFF, APPELLEE AND CROSS-APPELLANT, AND Gerald C. Bryce et al., third-party DEFENDANTS, 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. 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).

         5. 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 parties.

         6. ___: ___: ___: ___. 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.

         [298 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.

         8. 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.

         9. 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.

         10. ___: ___. In determining whether certification is warranted, a trial court must take into account judicial administrative interests as well as the equities involved.

         11. ___: ___. 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.

         12. 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.

         13. ___: ___. 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.

         Appeal from the District Court for Richardson County: Daniel E. Bryan, Jr., Judge. Order vacated, and appeal dismissed.

          Gary J. Nedved, of Keating, O'Gara, Nedved & Peter, PC, L.L.O., for appellants.

          Mark C. Laughlin and Jacqueline M. DeLuca, of Fraser Stryker, P.C., L.L.O., for appellee Robert J. Meyer.

         [298 Neb. 463] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          CASSEL, J.

         INTRODUCTION

         After 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.[1] Because we conclude the certification was an abuse of discretion, we dismiss the appeal for lack of jurisdiction.

         BACKGROUND

         Jlee 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 irrevocable trust.

         As 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.

         In 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 ...


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