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CASTELLAR PARTNERS v. AMP LIMITED

Cite as 291 Neb. 163 

Castellar Partners LLC, appellant, v. 

AMP Limited et al., appellees.

___ N.W.2d ___

Filed June 19, 2015. No. S-14-461.

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 2008) 

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. Actions: Parties: Final Orders: Appeal and Error. With the enactment of Neb. Rev. Stat. § 25-1315(1) (Reissue 2008), 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 2008) 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.

5. 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.

6. Judges: Judgments. The power that Neb. Rev. Stat. § 25-1315(1) 

(Reissue 2008) confers upon the trial judge should be used only in the 

infrequent harsh case as an instrument for the improved administration 

of justice, based on the likelihood of injustice or hardship to the parties 

of a delay in entering a final judgment as to part of the case.
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7. Courts: Judgments. 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.

8. Jurisdiction: Final Orders: Appeal and Error. If the trial court has 

abused its discretion in certifying an order as final under Neb. Rev. Stat. 

§ 25-1315(1) (Reissue 2008), there is no final order before the appellate 

court and, thus, no jurisdiction of the appeal.

9. Judges: Judgments. When a trial court concludes that entry of judgment under Neb. Rev. Stat. § 25-1315(1) (Reissue 2008) is appropriate, 

it should ordinarily make specific findings setting forth the reasons for 

its order.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Order vacated in part, and appeal 

dismissed.

Jason M. Bruno and Jared C. Olson, of Sherrets, Bruno & 

Vogt, L.L.C., for appellant.

James P. Fitzgerald and Patrick D. Pepper, of McGrath, 

North, Mullin & Kratz, P.C., L.L.O., for appellees.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Cassel, J.

INTRODUCTION

Castellar Partners LLC (Castellar) appeals from a purported 

final judgment dismissing 1 claim, but retaining 10 other 

claims. The district court concluded that due to a forum selection clause, the claim for breach of contract was required to be 

litigated in New South Wales, Australia. And it certified the 

dismissal of that claim as a final judgment pursuant to Neb. 

Rev. Stat. § 25-1315(1) (Reissue 2008). However, we find 
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CASTELLAR PARTNERS v. AMP LIMITED

Cite as 291 Neb. 163 

that the certification was improper. Castellar’s claims entail 

“similar issues” and “related facts,” and all of the parties 

remain involved in the litigation before the district court. We 

therefore dismiss the appeal for lack of jurisdiction.

BACKGROUND

According to Castellar’s amended complaint, it was retained 

in 2009 by the appellees (collectively AMP parties) to review 

a “hedge fund portfolio” and the services being provided 

by another advisor. The AMP parties, which are interrelated, include:

• AMP Limited (AMP)—a “multibillion dollar Australian

asset manager”;

• AMP Capital Investors (US) Limited (AMP US)—a subsidiary of AMP, incorporated in Delaware;

• AMP Capital Investors Limited (AMPCI)—a second subsidiary of AMP, incorporated in Australia; and

• AMP Capital Alternative Defensive Fund—the hedge fund

portfolio managed by AMP and its subsidiaries, involved in 

“high risk and high return investments.”

In its review of the fund, Castellar identified governance 

and compliance failures and irregularities contributing to 

losses of “hundreds of millions of dollars over many months.” 

Castellar informed the AMP parties of its findings, and the 

AMP parties sought Castellar’s assistance in resolving the 

issues it had identified. The AMP parties further sought to 

remove the acting advisor, and Castellar helped negotiate a 

settlement with the advisor over several matters, including 

unpaid fees.

In consideration of Castellar’s services, the AMP parties promised Castellar a “substantial monetary reward” that 

included the opportunity to be “partners . . . in building 

a global business.” Additionally, the AMP parties offered 

Castellar “customary hedge fund performance fees” and fees 

from the development of a new investment product.

In December 2009, Castellar and AMPCI executed an 

“Advisory Agreement.” According to Castellar, the agreement 
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CASTELLAR PARTNERS v. AMP LIMITED

Cite as 291 Neb. 163 

was “one of a series of agreements which . . . would transition 

into a proper hedge fund advisory contract and global business partnership.” Under the agreement, Castellar was required 

to “provide investment advisory services” regarding the fund 

in exchange for fees amounting to a one-time payment of 

$562,500 and an annual retainer of $1 million.

However, the formation of the global business partnership 

apparently never occurred and the AMP parties terminated 

their relationship with Castellar in October 2010. Castellar 

filed suit and alleged that the AMP parties had “recklessly and 

willfully” misled it in order to obtain its services with regard 

to the fund. As indicated above, Castellar asserted 11 causes 

of action. With respect to the advisory agreement, Castellar 

alleged that the AMP parties had breached the agreement by 

failing to provide proper notice of termination. And Castellar 

alleged that such failure had caused it to sustain damages in the 

amount of $250,000.

AMP US moved to dismiss on the basis of lack of personal 

jurisdiction. But rather than proceeding on the motion, the parties entered into a stipulation that AMP US would withdraw 

the motion and that the AMP parties would not contest personal jurisdiction. However, they reserved the right to assert 

that any claim involving the advisory agreement was required 

to be litigated in New South Wales.

In the advisory agreement, Castellar and AMPCI specified 

that all disputes would be subject to the

exclusive jurisdiction of the courts of the place specified in the Details and courts of appeal from them. Each 

party waives any right it has to object to an action being 

brought in those courts including, without limitation, by 

claiming that the action has been brought in an inconvenient forum or that those courts do not have jurisdiction.

And they further agreed that the “Governing law” would 

be the “law in force in the place stated in the Details.” The 

“Details” stated that the governing law was the law of New 

South Wales. But Castellar argues that the details did not contain an additional statement as to jurisdiction.
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The AMP parties moved to dismiss Castellar’s claim for 

breach of the advisory agreement. After multiple hearings, the 

district court granted their request. The court first determined 

that AMP, AMP US, and the fund were not signatories to the 

agreement. It concluded that the only parties to the agreement 

were Castellar and AMPCI. And as to AMPCI, the court found 

that a “reasonable interpretation” of the agreement required 

all disputes to be litigated in New South Wales and to be governed by its laws.

After the dismissal of its claim for breach of the agreement, 

Castellar moved for certification of a final judgment pursuant 

to § 25-1315(1). On May 15, 2014, the district court sustained 

the motion, but it set forth no findings or analysis and merely 

repeated the statutory language that “there is no just reason 

for delay.”1 Castellar filed a timely notice of appeal, and the 

appeal was assigned to the docket of the Nebraska Court of 

Appeals. We moved the appeal to our docket.2

ASSIGNMENTS OF ERROR

Castellar assigns, restated, that the district court erred in (1) 

determining that the advisory agreement contained an enforceable forum selection clause, (2) failing to find that the advisory 

agreement was ambiguous and to consider the parties’ intentions, (3) failing to find that the forum selection clause was 

permissive, and (4) rejecting its claim that New South Wales 

would be a substantially less convenient forum.

STANDARD OF REVIEW

[1,2] A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of 

law.3 A trial court’s decision to certify a final judgment pursuant to § 25-1315(1) is reviewed for an abuse of discretion.4

1 See § 25-1315(1).

2 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).

3 Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).

4 Id.
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CASTELLAR PARTNERS v. AMP LIMITED

Cite as 291 Neb. 163 

ANALYSIS

In its assignments of error, Castellar generally asserts that 

the district court improperly construed the advisory agreement 

in determining that it contained an enforceable forum selection clause. It contends that the agreement did not specify an 

exclusive forum in which to litigate disputes or, in the alternative, that any such provision was unenforceable.

[3] However, we do not consider the merits of Castellar’s 

arguments. 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.5 In 

our jurisdictional review, we conclude that the district court 

improperly certified the dismissal of Castellar’s claim for 

breach of the advisory agreement as a final judgment pursuant to § 25-1315(1). Thus, we are without jurisdiction over 

the appeal.

In Cerny v. Todco Barricade Co.,

6

 we summarized the legislative intent behind § 25-1315 and set forth a number of 

factors for trial courts to consider when applying that section. 

Section 25-1315(1) permits a trial court to certify an otherwise 

interlocutory order as a final, appealable judgment under the 

limited circumstances set forth in the statute:

When more than one claim for relief is presented in an 

action, whether as a claim, counterclaim, cross-claim, or 

third-party claim, or when multiple parties are involved, 

the court may direct the entry of a final judgment as to 

one or more but fewer than all of the claims or parties 

only upon an express determination that there is no just 

reason for delay and upon an express direction for the 

entry of judgment. In the absence of such determination and direction, any order or other form of decision, 

however designated, which adjudicates fewer than all 

the claims or the rights and liabilities of fewer than all 

the parties shall not terminate the action as to any of the 

5 Despain v. Despain, 290 Neb. 32, 858 N.W.2d 566 (2015).

6 See Cerny, supra note 3.
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claims or parties, and the order or other form of decision is subject to revision at any time before the entry of 

judgment adjudicating all the claims and the rights and 

liabilities of all the parties.

[4] There are three elements constituting a § 25-1315(1) 

certification. With the enactment of § 25-1315(1), 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 2008) 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.7

[5,6] However, as we explained in Cerny, § 25-1315(1) 

was intended to prevent interlocutory appeals, not make them 

easier.8 And we iterated that 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 The power that § 25-1315(1) confers 

upon the trial judge should be used only in the infrequent 

harsh case as an instrument for the improved administration 

of justice, based on the likelihood of injustice or hardship to 

the parties of a delay in entering a final judgment as to part of 

the case.10

[7] In determining whether certification is warranted, a trial 

court must take into account judicial administrative interests 

as well as the equities involved.11 To that effect, a trial court 

7 See id.

8 See id.

9 See id. at 809, 733 N.W.2d at 886.

10 See Cerny, supra note 3.

11 See id.
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should weigh (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

[8] In the case at bar, Castellar’s suit clearly involved multiple parties. And the district court’s dismissal of Castellar’s 

claim for breach of the advisory agreement was a final order 

within the meaning of § 25-1902 as the ultimate disposition of 

an individual claim for relief.13 Thus, in this case, the appropriateness of certification turns upon whether the district court 

properly weighed and considered the above factors. If the trial 

court has abused its discretion in certifying an order as final 

under § 25-1315(1), there is no final order before the appellate 

court and, thus, no jurisdiction of the appeal.14

[9] However, contrary to our express direction in Cerny, 

the district court failed to make specific findings in support 

of its § 25-1315(1) determination. “When a trial court concludes that entry of judgment under § 25-1315(1) is appropriate, it should ordinarily make specific findings setting forth 

the reasons for its order. . . . It is difficult to review the trial 

court’s exercise of discretion when the court does not explain 

its reasoning.”15

Thus, without specific findings, we must review the record 

for some indication of a “‘pressing, exceptional need for 

immediate appellate intervention, or grave injustice of the sort 

12 See id.

13 See id.

14 Murphy v. Brown, 15 Neb. App. 914, 738 N.W.2d 466 (2007).

15 Cerny, supra note 3, 273 Neb. at 811, 733 N.W.2d at 887.
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remediable only by allowing an appeal to be taken forthwith, 

or dire hardship of a unique kind.’”16 We further take particular 

notice of the allegations contained in Castellar’s request for 

certification.17 But rather than demonstrating that certification 

was appropriate, Castellar’s allegations affirmatively show that 

it was not.

In its request for certification of a final judgment, Castellar 

alleged that its 11 causes of action involved the “same parties, similar issues, and related facts.” As we explained in 

Cerny, the presence of overlapping claims counsels against 

certification, not in favor of it.18 Moreover, all of the claims 

stated in Castellar’s amended complaint appear to arise 

from the same underlying event—the AMP parties’ alleged

breach of various promises to form a “global business” with 

Castellar. And Castellar alleged that the advisory agreement 

was a step toward “transition[ing] into a proper hedge fund 

advisory contract and global business partnership.” Thus, it 

appears that Castellar’s claims involve considerable overlap. 

When the dismissed and surviving claims are factually and 

legally overlapping or closely related, fragmentation of the 

case is to be avoided except in “‘“unusual and compelling 

circumstances.”’”19

We recognize that the district court’s dismissal of 

Castellar’s claim for breach of the advisory agreement may 

cause Castellar to incur considerable expense in litigating 

the claim in New South Wales. But there is no indication of 

any grave injustice or dire hardship that would result from 

requiring Castellar to raise this issue in an appeal from a final 

determination of the case. Castellar’s claim of a New South 

16 Id. at 810, 733 N.W.2d at 887, quoting Spiegel v. Trustees of Tufts College, 

843 F.2d 38 (1st Cir. 1988).

17 See Cerny, supra note 3.

18 See id.

19 Id. at 813, 733 N.W.2d at 888-89, quoting Long v. Wickett, 50 Mass. App. 

380, 737 N.E.2d 885 (2000).
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Wales statute of limitations is a mere allegation with no evidentiary support.

The law disfavors piecemeal appeals, and multiple appeals 

interfere with efficient judicial administration and impose on 

the parties costs and risks associated with protracted litigation.20 Because all of Castellar’s claims are interrelated and 

the same parties remain involved in the pending litigation, we 

conclude that the district court abused its discretion in certifying a final judgment pursuant to § 25-1315(1).

CONCLUSION

Without specific findings to guide our review of the district court’s § 25-1315(1) determination, we find no basis 

to conclude that this was the “unusual case” warranting the 

proliferation of piecemeal appeals. And the interrelatedness 

of Castellar’s claims counsels against certification. We therefore conclude that the district court abused its discretion in 

certifying the dismissal of Castellar’s claim for breach of 

the advisory agreement as a final judgment. Thus, we vacate 

the provision of the court’s May 15, 2014, order purporting 

to certify a final judgment and dismiss the appeal for lack 

of jurisdiction.

Order vacated in part, and appeal dismissed.

20 See, Cerny, supra note 3; Halac v. Girton, 17 Neb. App. 505, 766 N.W.2d 

418 (2009).