- 783 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

Tegra Corporation, individually and on behalf 

of Lite-Form Technologies, L.L.C., appellant 

and cross-appellee, v. Patrick E. Boeshart 

et al., appellees and cross-appellants.

___ N.W.2d ___

Filed June 17, 2022. No. S-21-547.

1. Jurisdiction. The question of jurisdiction is a question of law.

2. Jurisdiction: Appeal and Error. It is the power and 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. Judgments: Final Orders: Words and Phrases. A judgment is the 

final determination of the rights of the parties in an action.

4. Judgments: Words and Phrases. Every direction of the court made or 

entered in writing and not included in a judgment is an order.

5. Final Orders: Appeal and Error. To be appealable, an order must 

satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 

(Cum. Supp. 2020) and, additionally, where implicated, Neb. Rev. Stat. 

§ 25-1315(1) (Reissue 2016).

6. 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.

7. Claims: Parties: Final Orders. In the absence of an express determination that there is no just reason for delay upon an express direction 

for the entry of judgment, orders, however designated, adjudicating 

fewer than all claims or the rights of fewer than all the parties are 

not final.

8. Actions: Parties: Final Orders: Appeal and Error. One may bring 

an appeal pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) 

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 (Cum. Supp. 2020) as to one or more but fewer than all of 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/26/2022 12:07 PM CDT
- 784 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

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.

9. Claims: Parties: Appeal and Error. Absent an entry of judgment under 

Neb. Rev. Stat. § 25-1315 (Reissue 2016), no appeal will lie unless all 

claims have been disposed as to all parties in the case.

10. Final Orders: Appeal and Error. Final orders under Neb. Rev. Stat. 

§ 25-1902 (Cum. Supp. 2020) are carefully circumscribed to avoid 

piecemeal review, chaos in trial procedure, and a succession of appeals 

granted in the same case to secure advisory opinions to govern further 

actions of the trial court.

11. Final Orders: Words and Phrases. A special proceeding occurs where 

the law confers a right and authorizes a special application to a court to 

enforce the right.

12. Actions: Final Orders: Statutes. A special proceeding includes every 

special statutory remedy that is not in itself an action; thus, special proceedings and actions are mutually exclusive categories.

13. Actions: Statutes: Words and Phrases. An action is any proceeding 

in a court by which a party prosecutes another for enforcement, protection, or determination of a right or the redress or prevention of a wrong 

involving and requiring the pleadings, process, and procedure provided 

by the statute and ending in a final judgment.

14. Actions: Final Orders. While a special proceeding may be connected 

with an action in the sense that the application for the benefit of it and 

the other papers and orders concerning it may be filed in the case where 

the record of the filings in the action are made, it is not an integral part 

of the action.

15. ____: ____. None of the many steps or proceedings necessary or permitted to be taken in an action to commence it, to join issues in it, and 

conduct it to a final hearing and judgment are special proceedings.

16. Actions: Final Orders: Statutes. Regardless of a statutory remedy’s 

location within Nebraska’s statutes, actions and special proceedings are 

mutually exclusive.

17. Statutes: Public Officers and Employees. Where the Revisor of 

Statutes happens to put a proceeding does not alter the nature of the 

proceeding.

18. Statutes. A proceeding is not special by the sole virtue of it being placed 

outside of chapter 25 of the Nebraska Revised Statutes.

19. Derivative Actions. Derivative actions are not special proceedings.

20. Derivative Actions: Equity: Words and Phrases. A derivative action 

is an equitable proceeding in which a member of a limited liability corporation asserts, on behalf of the corporation, a claim that belongs to the 

corporation rather than to the member.
- 785 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

21. Derivative Actions: Complaints. While a derivative action requires the 

extra step of making a demand on the other members or managers to 

cause the company to bring the action to enforce the right and requires 

that the complaint state the fact of such demand or that it was futile, it 

is an action.

22. Corporations. The purpose of a special litigation committee is to investigate the claims made in the action and determine whether pursuing the 

action is in the best interests of the company.

23. Corporations: Derivative Actions. The special litigation committee 

balances the rights and duties of the board and dissenting shareholders 

by providing a corporation with an important tool to rid itself of meritless or harmful litigation while preventing directors from using the 

committee to wrest control of bona fide derivative claims away from 

well-meaning plaintiffs.

24. Final Orders: Words and Phrases. A substantial right is an essential 

legal right, not a mere technical right.

25. Final Orders: Appeal and Error. A substantial right is affected if an 

order affects the subject matter of the litigation, such as by diminishing 

a claim or defense that was available to an appellant before the order 

from which an appeal is taken.

26. Final Orders. It is not enough that the right itself be substantial; the 

effect of the order on that right must also be substantial.

27. Final Orders: Time. The duration of an order is relevant to whether it 

affects a substantial right.

28. Final Orders: Appeal and Error. Whether the effect of an order is 

substantial depends on whether it affects with finality the rights of the 

parties in the subject matter.

29. Final Orders. Substantial rights under Neb. Rev. Stat. § 25-1902 (Cum. 

Supp. 2020) include those legal rights that a party is entitled to enforce 

or defend.

30. Final Orders: Appeal and Error. An order affects a substantial right 

when the right would be significantly undermined or irrevocably lost by 

postponing appellate review.

31. Final Orders. The mere fact that a person is subjected to inconvenience, 

annoyance, discomfort, or even expense by a decree does not entitle that 

person to appeal from it, as long as he or she is not thereby concluded 

from asserting or defending claims of personal or property rights in any 

proper court. Being subjected to trial does not affect an essential legal 

right and thus does not affect a substantial right.

32. ____. An order to mediate does not affect any substantial right of 

the parties.

33. Final Orders: Appeal and Error. It would undermine the efficiencies inherent to mediation to allow interlocutory appeals of such 
- 786 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

orders, which do not, in any event, diminish the underlying issues of 

the action.

34. Appeal and Error. While the parties may consider themselves inconvenienced by an order to mediate, the fact that a person is subjected to 

inconvenience by a court’s order does not in and of itself entitle one 

to appeal.

Appeal from the District Court for Dakota County: Bryan 

C. Meismer, Judge. Appeal dismissed.

Mathew T. Watson and Erin R. Robak, of McGill, Gotsdiner, 

Workman & Lepp, P.C., L.L.O., for appellant.

Scott D. Jochim, of Croker Huck Law Firm, for appellees.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ., and Bataillon, District Judge.

Freudenberg, J.

I. INTRODUCTION

In a derivative action, a minority shareholder brought suit 

on behalf of the manager-managed limited liability company 

(LLC). Pursuant to Neb. Rev. Stat. § 21-168 (Reissue 2012), 

the manager-defendants appointed a single-member special 

litigation committee to investigate and determine whether it 

was in the LLC’s best interests to pursue the derivative action. 

The committee determined it was in the LLC’s best interests 

for the derivative action to be settled on terms approved by the 

committee, which were to disclose to the LLC members certain issues and conduct a majority vote as to how they should 

be resolved. In reviewing the committee’s report, the district 

court found that the committee acted with “enough disinterested independence and good faith,” but that its recommendation for disclosure to and vote of the members was beyond the 

committee’s statutory authority. The court ordered the parties 

to attempt mediation and thereafter report the outcome of the 

mediation and make further recommendations to the court. The 

minority shareholder appeals, and the defendants cross-appeal 

the order.
- 787 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

II. BACKGROUND

1. Parties and Ownership Interests

Lite-Form Technologies, L.L.C. (Lite-Form), is an LLC 

with its principal place of business in South Sioux City, 

Nebraska. Patrick Boeshart is the president and sole manager 

of Lite-Form, and his wife, Sandra Boeshart, is the office manager and provides bookkeeping services to Lite-Form. Boeshart 

Management Company, L.L.C. (Boeshart Management), is 

an Iowa LLC that conducts business in Nebraska. Boeshart 

Management is wholly owned and controlled by Patrick and 

Sandra, with Sandra designated as the registered agent in 

Nebraska for Boeshart Management. Pat Boeshart Construction, 

L.L.C. (Boeshart Construction), is an Iowa LLC that conducts business in Nebraska. Boeshart Construction is wholly 

owned and controlled by Patrick. Patrick, Sandra, Boeshart 

Management, and Boeshart Construction are collectively 

referred to hereafter as “the Boesharts.” Tegra Corporation 

(Tegra) is an Iowa corporation with its principal place of 

business in Sioux City, Iowa, and is a minority shareholder 

of Lite-Form.

There is some slight discrepancy between the parties’ pleadings as to ownership percentages for Lite-Form. Accounting 

for this discrepancy, Tegra owns approximately 2.521 to 

2.5237 percent of the membership units of Lite-Form, Patrick 

owns approximately 7.084 to 7.1714 percent of the membership units of Lite-Form, and Sandra owns approximately 7 

to 7.0662 percent of the membership units of Lite-Form. 

The remaining minority members collectively own approximately 22.671 to 24.313 percent of the membership units of 

Lite-Form. Lite-Form International, L.C. (Lite-Form Int’l), 

owns approximately 60 to 60.5677 percent of Lite-Form. Tegra 

owns approximately 37.44 to 37.5755 percent of the membership units of Lite-Form Int’l, and therefore, it indirectly owns 

approximately 22.46 to 22.7586 percent of Lite-Form. Patrick 

owns approximately 49.766 to 49.9678 percent of the membership units of Lite-Form Int’l, and therefore, he indirectly 
- 788 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

owns approximately 29.86 to 30.2643 percent of Lite-Form. 

Finally, Sandra owns approximately 6.745 to 6.7480 percent 

of the membership units of Lite-Form Int’l, and therefore, 

she indirectly owns approximately 4.05 to 4.08711 percent 

of Lite-Form.

2. Tegra’s Lawsuit

Tegra, individually and on behalf of Lite-Form, filed a 

complaint against the Boesharts alleging breach of fiduciary 

duty, misappropriation and waste of corporate assets, unjust 

enrichment, conversion, and, as to Sandra, aiding and abetting 

a fiduciary breach. Tegra also alleged in its individual capacity that it had made a demand upon Lite-Form to produce 

information and documentation related to the claims set forth 

and that Lite-Form had wrongfully withheld that information 

from Tegra.

3. Appointment of Special Litigation 

Committee and Its Findings

Patrick, under the authority granted to LLCs by § 21-168, 

appointed Cody Carse as a single member special litigation 

committee (Committee) to investigate the claims asserted by 

Tegra and to determine whether pursuing the action was in the 

best interests of Lite-Form. The derivative action was stayed 

during the pendency of the Committee’s investigation. The 

Committee subsequently timely filed its report and statement 

of determination with the court. Carse outlined his qualifications, which consisted of the fact that Carse is a certified public 

accountant, a certified fraud examiner, and certified in financial forensics. The report generally addressed the allegations of 

the complaint.

(a) Conflicting-Interest Leases

The Committee found that leases between Boeshart 

Construction and Lite-Form and Boeshart Management and 

Lite-Form, challenged in the action, were for equipment 
- 789 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

used by Lite-Form for legitimate business purposes but that 

some of the leases had rental rates that appeared to be above 

market. The Committee recommended that the leases be disclosed to all the members of Lite-Form and that the members 

holding at least a majority of all outstanding units vote to 

either (1) approve or modify any of the terms of the relatedparty leases retroactively back to the start of each lease, (2) 

determine if member approval must be required in the future 

before entering into any related-party lease, or (3) choose not 

to address the leases at all or take any action.

(b) Diversion of Profits to 

Boeshart Family

On a claim of diversion of profits, the Committee found 

that on October 30, 2018, Lite-Form paid $600,000 to Patrick, 

$200,000 to Patrick and Sandra’s son, and $200,000 to Patrick 

and Sandra’s daughter. Patrick loaned the $600,000 back to 

Lite-Form, but the loan was reduced to $487,194.03 by July 

3, 2019. The $512,805.97 net cash paid out by Lite-Form was 

repaid to Lite-Form by a deposit of $234,867.03 made on 

December 23, 2019, and a deposit of $277,938.94 made on 

January 17, 2020. While the derivative action alleged Lite-Form 

had lost use of the $1 million for over a year, incurred additional professional fees to unwind the transaction, and incurred 

Internal Revenue Service penalties and interest due to the payment and unwinding of the transaction, the Committee noted it 

had not been provided with any documentation regarding additional professional fees or Internal Revenue Service penalties 

and interest. As a resolution, the Committee recommended that 

all the details of the $1 million bonus transaction be disclosed 

to the members of Lite-Form, including any expenses incurred 

by Lite-Form due to the loss of use of the money that was paid 

out on October 31, 2018, and not fully repaid until January 

17, 2020, and that the members thereafter vote to determine if 

Lite-Form should be reimbursed by Patrick for any expenses 

incurred due to the transaction.
- 790 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

(c) Unauthorized Salaries, 

Bonuses, and Benefits

With respect to alleged unauthorized salaries, bonuses, and 

benefits, the Committee found that, except for the $1 million 

bonus in 2018, Sandra and Patrick and Sandra’s son were paid 

salaries comparable to other Lite-Form employees and that 

Patrick and Sandra’s daughter’s salary was based on her previous employer. It was a condition of her joining Lite-Form that 

Lite-Form would match the salary she was receiving previously. With respect to Patrick’s salary, the Committee found 

that the operating agreement states the manager’s salary and 

other compensation are subject to the approval of the members 

but does not state the manager must request approval from the 

members. It appeared that for the 18 years of Lite-Form’s existence, the members had chosen not to specifically approve the 

salary and other compensation of the manager of the company. 

The Committee found it did not have a basis to evaluate the 

amount of Patrick’s salary. It recommended that the relevant 

section of the operating agreement be discussed at the next 

member meeting.

(d) Luxury Vehicles

With respect to allegations concerning luxury vehicles, the 

Committee found that on July 28, 2002, Lite-Form entered into 

two leases with Lite-Form Int’l, which owned the vehicles, 

for a term from July 1 to December 31, 2002. The leases 

included $400 per month for general office and computer 

equipment and $4,800 per month for “Autos and Trailers.” The 

Committee noted that although the written leases terminated 

on December 31, the monthly rental payments have continued 

through the present point in time for the same amounts and 

Lite-Form Int’l continued to provide Lite-Form with all the 

company-provided vehicles driven by Lite-Form employees. 

The Committee found that the vehicles were for the business 

and personal use of the Lite-Form employees and opined that 

providing company vehicles and having the employer pay for 
- 791 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

license, taxes, and registration for company-provided vehicles 

is a common business practice. The Committee further found 

that the monthly rental payment of $4,800 has never changed 

over the years and that the cost to Lite-Form has been the 

same whether the company provided “‘new and luxury cars’ 

or ‘old and cheap cars.’” Thus, the Committee concluded the 

purchase price of the vehicles had no impact on the cost to 

Lite-Form. The Committee recommended that the leases be 

discussed at the next Lite-Form member meeting, as well as 

whether Lite-Form should continue providing company vehicles to employees for business and personal use and paying for 

license, taxes, and registration of those vehicles.

(e) Financial Mismanagement

In addressing the derivative action’s allegations of financial mismanagement, the Committee found that Patrick uses 

a personal American Express credit card for both Lite-Form 

business purposes and personal purposes. The monthly statement is reviewed by Sandra, and she identifies which charges 

are personal and which are Lite-Form business expenses. The 

business expenses are then coded to the applicable Lite-Form 

general ledger account and are paid by Lite-Form to American 

Express. The personal purchases are paid by Patrick personally to American Express. The Committee’s recommendation 

concluded, “This is a small business and Sandra . . . is very 

familiar with all of the charges made to [the American Express] 

account each month. She is quite capable of accurately identifying which charges are [Lite-Form] expenses and which 

charges are personal.” Further, the Committee noted that Tegra 

had failed to provide the Committee with documentation supporting these allegations.

(f) Wrongful Withholding of Information

With respect to allegations of wrongful withholding of 

information, the Committee stated, “It is the [Committee’s] 

understanding that [the Boesharts] are following the advice 
- 792 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

of their legal counsel with regard to production of the information requested in [Tegra’s] October 22[, 2019,] Demand.”

(g) Statement of Determination

In a “Statement of Determination” in the report, the Committee “determined that it is in the best interests of [Lite-Form] 

that the derivative proceeding be settled on terms approved 

by the Committee.” This was because, in Carse’s professional 

opinion, “[the Boesharts’] actions do not justify continuing the 

derivative proceeding under the control of [Tegra]”:

In summary, all the issues identified in the [Committee’s] investigation can be resolved by the Members 

of [Lite-Form]. After the Members have been properly 

informed about the issues, the Members holding at least 

a majority of all outstanding Units and entitled to vote 

can determine how these issues should be resolved. In my 

professional opinion, the “majority of voting members” 

are quite capable of making the final decision on all of 

these issues.

Once the Members have met and voted, counsel shall 

report back to the Committee. Based upon the results of 

the meeting, the Committee may file a request with the 

Court to dismiss the pending action.

4. Evidentiary Hearing on 

Committee’s Report

An evidentiary hearing was held to determine whether the 

district court would adopt the determinations in the report or 

continue the litigation in the control of Tegra. Carse was the 

only witness to testify.

Carse testified that all his opinions were made to a reasonable degree of accounting certainty. He viewed his role as 

the Committee to simply investigate and then have the court 

make a decision, and he “never made any decisions on behalf 

of the company.”

Carse testified that in his role as the Committee, he did not 

“do anything from a legal interpretation standpoint,” since 
- 793 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

he was “not a lawyer.” However, the Committee’s legal counsel 

“didn’t make any decisions on how to do [his] investigation” 

and was simply a “conduit” for information to the parties and 

to file things for the court.

Carse repeatedly stated that throughout his investigation, he 

believed it was “up to Tegra” to bring the evidence to him to 

support the allegations it was making.

Carse testified that as an accountant and business person 

reading the allegations and weighing the evidence he was 

provided, he felt the facts presented to him did not satisfy 

the claims that were in the lawsuit. Carse admitted he did 

not conduct a cost-benefit analysis in determining which of 

the four options to recommend. Instead, he simply determined there was no support for the alleged claims. Carse 

explained, “Based on what [Tegra] provided to me, I didn’t 

think it would hold up in court.” Therefore, he found no support for choosing options that would continue the litigation. 

However, Carse admitted that he did not know the legal elements of any of the allegations and, throughout his investigation, never asked the Committee’s counsel for any legal advice 

or legal interpretations.

Still, Carse found evidence that some expenditures were 

“out of line.” He believed his solutions of disclosure and 

voting on those matters would resolve those matters without 

requiring a lawsuit. Carse admitted in regard to the $1 million 

bonus that he did not quantify the cost of pursuing the claims 

or the potential recovery. He just “estimated it in [his] own 

mind” that a member meeting would be cheaper than to “tie up 

four attorneys and a judge and a court.”

Thus, Carse ultimately recommended that many of the 

issues, such as the leases and the $1 million bonus, should 

be disclosed to the members of Lite-Form for a vote. Carse 

believed that recommendation constituted making a decision 

under § 21-168(d)(3) to “be settled on terms approved by 

the committee.”
- 794 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

5. District Court Order

The district court found that Carse’s review was consistent 

with someone of his background as a certified public accountant and a certified fraud examiner and that, in the court’s opinion, “he reviewed the claims of [Tegra], did a records review, 

and found enough to recommend that the parties attempt 

settlement.” The court ultimately found that the Committee 

acted “with enough disinterested independence and good faith 

to support a determination that the parties attempt to settle 

these claims.”

Still, the court took issue with the fact that the Committee had 

made a recommendation directly beneficial to the Boesharts, 

who chose Carse. And the court believed it was beyond the 

statutory authority of the Committee to send matters to the 

members for a majority vote, because,

[b]eyond the fact that these recommendations would seem 

to put [the Boesharts], accused of self-dealing, in a position to act in their own best interest and to the detriment 

of [Tegra] and its other members, there is no language in 

§21-168(d) that allows the [Committee] to make recommendations for [Tegra] to complete.

Thus, the court stated, “The [Committee] was authorized by 

statute to choose one of four options, it chose settlement, and 

the additional recommendations of the [Committee] will not be 

considered by this Court.”

The court ordered the parties to attempt mediation of the 

claims outlined in the operative complaint. The court gave 

the parties 30 days to choose a mediator, and if no mediator could be agreed upon, the court stated it would determine 

the mediator.

The court stated that “[u]pon conclusion of Mediation, 

the [Committee] is Ordered to report to the Court the outcome of the mediation and make further recommendations 

per §21-168.” It scheduled a status hearing for September 

20, 2021.
- 795 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

III. ASSIGNMENTS OF ERROR

Tegra assigns that the district court erred in (1) concluding 

the Committee satisfied its burden of establishing its investigation was conducted and its recommendation was made 

independently, in good faith, and with reasonable care as 

required by § 21-168; (2) concluding the Committee satisfied 

its burden of establishing it was independent as required by 

§ 21-168; (3) determining the Committee made a determination of settlement permitted by § 21-168 and in accepting that 

determination despite finding aspects of it were not permitted 

by statute and possessed the appearance of impropriety; (4) 

excising aspects of the Committee’s determination that the 

court found were improper and substituting mediation in an 

effort to remedy the impropriety, which is not permitted by 

§ 21-168; (5) deferring to the determination of a Committee 

that was acting in a mere advisory capacity and without the 

delegated power to exclusively and conclusively determine 

whether pursuing the derivative action was in the best interests of Lite-Form; (6) failing to apply the correct standard of 

review under § 21-168, failing to impose the burden upon the 

Committee to satisfy § 21-168, and failing to address whether 

the Committee satisfied certain requirements of § 21-168, 

such as the requirement that the Committee conduct its investigation and make its recommendation with reasonable care; 

and (7) affording the Committee an opportunity to make a 

second determination under § 21-168.

In a cross-appeal, the Boesharts assign that the district court 

erred in failing to enforce the entirety of the Committee’s recommendations after accepting its determination.

IV. STANDARD OF REVIEW

[1] The question of jurisdiction is a question of law. 1

V. ANALYSIS

[2] The parties dispute whether we have jurisdiction over 

the present appeal. It is the power and duty of an appellate 

1 Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021).
- 796 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

court to determine whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by 

the parties. 2

Under Neb. Rev. Stat. § 25-1911 (Reissue 2016), for an 

appellate court to acquire jurisdiction of an appeal, there must 

be a final judgment or final order entered by the tribunal from 

which the appeal is taken. 3

[3] A judgment is the final determination of the rights of the 

parties in an action. 4 In this case, there has not been a dismissal 

of the action or a final determination of its merits.

[4,5] Rather, Tegra seeks review of an order. Every direction 

of the court made or entered in writing and not included in a 

judgment is an order. 5 To be appealable, an order must satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 

(Cum. Supp. 2020) and, additionally, where implicated, Neb. 

Rev. Stat. § 25-1315(1) (Reissue 2016). 6

1. Multiple Claims

[6,7] Section 25-1315(1) 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. 7 In the absence of an express determination 

that there is no just reason for delay upon an express direction 

for the entry of judgment, orders, however designated, adjudicating fewer than all claims or the rights of fewer than all the 

parties are not final. 8

2 In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021), modified on 

denial of rehearing 310 Neb. 389, 966 N.W.2d 268.

3 In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021).

4 Cinatl v. Prososki, 307 Neb. 477, 949 N.W.2d 505 (2020).

5 Id.

6 Tyrrell v. Frakes, supra note 1.

7 Rafert v. Meyer, 298 Neb. 461, 905 N.W.2d 30 (2017).

8 TDP Phase One v. The Club at the Yard, 307 Neb. 795, 950 N.W.2d 640 

(2020).
- 797 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

[8,9] Section 25-1315(1) provides:

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 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.

One may bring an appeal pursuant to § 25-1315(1) only when 

(1) multiple causes of action or multiple parties are present, (2) 

the court enters a final order within the meaning of § 25-1902 

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. 9 Absent an entry of 

judgment under § 25-1315, no appeal will lie unless all claims 

have been disposed as to all parties in the case. 10

There is some suggestion from the record that § 25-1315 

may be implicated in this appeal. Tegra explained at oral 

arguments that its lawsuit stated a separate cause of action, 

individually and not on behalf of Lite-Form, for wrongfully 

withholding information and that the order herein appealed 

pertains only to Tegra’s derivative claims brought on behalf 

9 Id.

10 Id.
- 798 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

of Lite-Form. If we assume that this wrongful withholding 

of information allegation was a cause of action, rather than a 

theory of recovery, 11 and that the order Tegra appeals, directing mediation and further recommendations, did not adjudicate 

it or we assume Tegra, as an individual, was a separate party 

whose rights and liabilities were not adjudicated by the order, 

then the lack of an express determination by the court that 

there is no just reason for delay and direction for the entry of 

judgment would be fatal to our jurisdiction over this appeal. 

However, we conclude that regardless of the possible additional impediment of failing to satisfy § 25-1315, the order was 

not final under § 25-1902.

2. Final Order

[10] Final orders under § 25-1902 are carefully circumscribed to avoid piecemeal review, chaos in trial procedure, 

and a succession of appeals granted in the same case to secure 

advisory opinions to govern further actions of the trial court. 12

While there are four types of final orders under § 25-1902, 

the relevant inquiry under the facts of this case is whether the 

order directing mediation and further recommendations was 

“made during a special proceeding” and “affect[ed] a substantial right.”

(a) Special Proceeding

[11-13] A special proceeding occurs where the law confers a right and authorizes a special application to a court 

to enforce the right. 13 A special proceeding includes every 

special statutory remedy that is not in itself an action; thus, 

11 See Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).

12 See, In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021); In 

re Interest of Kamille C. & Kamiya C., 302 Neb. 226, 922 N.W.2d 739 

(2019).

13 Champion v. Hall County, 309 Neb. 55, 958 N.W.2d 396 (2021).
- 799 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

special proceedings and actions are mutually exclusive categories. 14 An action is any proceeding in a court by which a 

party prosecutes another for enforcement, protection, or determination of a right or the redress or prevention of a wrong 

involving and requiring the pleadings, process, and procedure 

provided by the statute and ending in a final judgment. 15

Every other legal proceeding by which a remedy is sought by 

original application to a court is a special proceeding. 16

[14,15] While a special proceeding may be “connected 

with” 17 an action in the sense that the application for the benefit of it and the other papers and orders concerning it may be 

filed in the case where the record of the filings in the action are 

made, it is not an “integral part” 18 of the action. “None of the 

many steps or proceedings necessary or permitted to be taken 

in an action to commence it, to join issues in it, and conduct it 

to a final hearing and judgment” are special proceedings. 19 For 

example, a proceeding on a motion for summary judgment is 

not a special proceeding under § 25-1902 because it is “merely 

one particular tool that may be used to resolve certain issues 

in the case.” 20

14 See, Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538 

(2010); Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007); Pfeil 

v. State, 273 Neb. 12, 727 N.W.2d 214 (2007); Keef v. State, 262 Neb. 

622, 634 N.W.2d 751 (2001); O’Connor v. Kaufman, 255 Neb. 120, 582 

N.W.2d 350 (1998).

15 In re Grand Jury of Douglas Cty., 302 Neb. 128, 922 N.W.2d 226 (2019); 

In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011); Steven S. v. 

Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009). See, also, State v. Jacques, 

253 Neb. 247, 570 N.W.2d 331 (1997).

16 Id.

17 O’Connor v. Kaufman, supra note 14, 255 Neb. at 123, 582 N.W.2d at 353 

(internal quotation marks omitted).

18 Id. at 124, 582 N.W.2d at 353 (internal quotation marks omitted).

19 Id. at 123, 582 N.W.2d at 353 (internal quotation marks omitted). See, 

also, e.g., State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006).

20 O’Connor v. Kaufman, supra note 14, 255 Neb. at 124, 582 N.W.2d at 

354.
- 800 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

We have said that a “special proceeding” entails civil statutory remedies not encompassed in chapter 25 of the Nebraska 

Revised Statutes. 21 Examples of special proceedings that are 

outside of chapter 25 include juvenile court proceedings, 22

involuntary commitment, 23 license revocation, 24 dissolution, 25

probate actions, 26 proceedings under the Nebraska Uniform 

Trust Code, 27 proceedings under the Uniform Deceptive Trade 

Practices Act, 28 workers’ compensation cases, 29 condemnation actions, 30 proceedings before the Department of Water 

Resources, 31 and proceedings commenced by various motions 

under chapter 29, including postconviction relief, absolute discharge, competency, habeas corpus, public disclosure of grand 

jury documents, 32 motions for new trial based on newly discovered evidence, 33 motions to vacate and set aside judgments due 

to DNA or other forensic testing, 34 and pleas in bar. 35

21 Williams v. Baird, supra note 14.

22 In re Guardianship of Rebecca B. et al., 260 Neb. 922, 621 N.W.2d 289 

(2000).

23 See, In re Interest of D.I., supra note 15; In re Interest of Saville, 10 Neb. 

App. 194, 626 N.W.2d 644 (2001).

24 State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996).

25 Steven S. v. Mary S., supra note 15.

26 In re Estate of Peters, 259 Neb. 154, 609 N.W.2d 23 (2000). See, also, In 

re Estate of Abbott-Ochsner, 299 Neb. 596, 910 N.W.2d 504 (2018).

27 In re Trust of Rosenberg, 269 Neb. 310, 693 N.W.2d 500 (2005).

28 Sid Dillon Chevrolet v. Sullivan, 251 Neb. 722, 559 N.W.2d 740 (1997).

29 Thompson v. Kiewit Constr. Co., 258 Neb. 323, 603 N.W.2d 368 (1999).

30 SID No. 1 v. Nebraska Pub. Power Dist., 253 Neb. 917, 573 N.W.2d 460 

(1998).

31 In re Applications A-14137, A-14138A, A-14138B, and A-14139, 240 Neb. 

117, 480 N.W.2d 709 (1992).

32 In re Grand Jury of Douglas Cty., supra note 15.

33 State v. Harris, 307 Neb. 237, 948 N.W.2d 736 (2020).

34 State v. Bronson, 267 Neb. 103, 672 N.W.2d 244 (2003).

35 State v. Milenkovich, 236 Neb. 42, 458 N.W.2d 747 (1990).
- 801 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

[16,17] However, in Kremer v. Rural Community Ins. Co.,

 36

we explicitly rejected the premise that a proceeding cannot be 

a special proceeding for purposes of § 25-1902 simply because 

the remedy is set forth in statutes encompassed in chapter 

25. We stated “sometimes” special proceedings are located in 

chapter 25 and that, “regardless of a statutory remedy’s location within Nebraska’s statutes, actions and special proceedings 

are mutually exclusive.” 37 While the Legislature may sometimes direct the Revisor of Statutes as to which chapter a section must be assigned, 38 it often does not. In the latter circumstance, it has been said that “[w]here the Revisor of Statutes 

happens to put a proceeding . . . does not alter the nature of 

the proceeding.” 39

Within chapter 25, we have held that orders granting applications to compel arbitration, staying judicial proceedings 

pending arbitration, 40 and denying motions to compel arbitration under alleged contractual agreements to arbitrate 41 are 

made in special proceedings.

[18] The underlying order herein appealed was made, 

broadly, within a derivative action on behalf of an LLC. 

We have never addressed whether a derivative action is a 

special proceeding. Derivative actions are governed by statutes outside of chapter 25, and we recognize that, historically, we have often concluded that orders were made during 

36 Kremer v. Rural Community Ins. Co., supra note 14. See, also, Sutton v. 

Killham, 285 Neb. 1, 825 N.W.2d 188 (2013).

37 Kremer v. Rural Community Ins. Co., supra note 14, 280 Neb. at 597, 788 

N.W.2d at 546.

38 State v. Sundling, 248 Neb. 732, 538 N.W.2d 749 (1995).

39 John P. Lenich, What’s So Special About Special Proceedings? Making 

Sense of Nebraska’s Final Order Statute, 80 Neb. L. Rev. 239, 279 (2001). 

See, also, Neb. Rev. Stat. § 49-705 (Reissue 2021).

40 Kremer v. Rural Community Ins. Co., supra note 14.

41 Speece v. Allied Professionals Ins. Co., 289 Neb. 75, 853 N.W.2d 169 

(2014); Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 

33 (2004).
- 802 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

special proceedings simply because the statutory remedies at 

issue were not encompassed within chapter 25. 42 However, we 

have recently held that a proceeding, which was governed by 

statutes outside of chapter 25, was not a special proceeding. 43

This is consistent with our reasoning in Kremer that the location of the governing statute is not determinative of whether 

an order is made in a special proceeding as opposed to in an 

action. We will no longer reason that a proceeding is special 

by the sole virtue of it being governed by statutes outside of 

chapter 25.

[19,20] We conclude that derivative actions are not special 

proceedings. A derivative action is an equitable proceeding in 

which a member of an LLC asserts, on behalf of the LLC, a 

claim that belongs to the LLC rather than to the member. 44 It 

is only a “derivative action” and governed by certain requirements of Neb. Rev. Stat. §§ 21-154 to 21-169 (Reissue 2012), 

by virtue of it being maintained by a member on behalf of the 

company. Otherwise, the nature of the derivative action is governed by whatever claims are made on behalf of the company, 

which claims, in turn, are governed by the uniform procedural 

rules found in chapter 25.

[21] Thus, while a derivative action requires the extra 

step of making a demand on the other members or managers to cause the company to bring the action to enforce the 

right 45 and requires that the complaint state the fact of such 

42 Furstenfeld v. Pepin, 287 Neb. 12, 840 N.W.2d 862 (2013); Steven S. v. 

Mary S., supra note 15; In re Estate of Peters, supra note 26. See, also, In 

re Estate of Rose, 273 Neb. 490, 730 N.W.2d 391 (2007); State v. Silvers, 

255 Neb. 702, 587 N.W.2d 325 (1998); SID No. 1 v. Nebraska Pub. Power 

Dist., supra note 30; Sid Dillon Chevrolet v. Sullivan, supra note 28; 

State v. Hansen, supra note 24; Hull v. Aetna Ins. Co., 247 Neb. 713, 529 

N.W.2d 783 (1995).

43 See State v. Vela, supra note 19.

44 51 Am. Jur. 2d Limited Liability Companies § 48 (2021).

45 See § 21-165.
- 803 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

demand or that it was futile, 46 it is an action. It is a proceeding 

in a court by which a party prosecutes another for enforcement, protection, or determination of a right or the redress or 

prevention of a wrong involving and requiring the pleadings, 

process, and procedure provided by the statute and ending in a 

final judgment.

Of course, the fact that derivative actions are not special 

proceedings does not necessarily determine whether orders 

under § 21-168, made when the LLC exercises the right set 

forth in § 21-168 to appoint a special litigation committee, are 

not made in a special proceeding. This is because, as stated, 

a special proceeding may be “connected with” 47 an action in 

the sense that the application for the benefit of it and the other 

papers and orders concerning it may be filed in the case where 

the record of the filings in the action are made. The question 

is whether proceedings under § 21-168 are an integral part of 

the main derivative action; i.e., whether they are just one of the 

many steps or proceedings necessary or permitted to be taken 

in the derivative action to commence it, to join issues in it, and 

conduct it to a final hearing and judgment.

To understand if proceedings under § 21-168 are one of 

the many steps of a derivative action or, instead, a special 

application authorized by a law conferring a special right, 

we must examine § 21-168 and the potential consequences of 

orders issued pursuant to that section. Section 21-168 provides 

in full:

(a) If a limited liability company is named as or 

made a party in a derivative proceeding, the company 

may appoint a special litigation committee to investigate the claims asserted in the proceeding and determine 

whether pursuing the action is in the best interests of the 

company. If the company appoints a special litigation 

46 § 21-167.

47 O’Connor v. Kaufman, supra note 14, 255 Neb. at 123, 582 N.W.2d at 353 

(internal quotation marks omitted).
- 804 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

committee, on motion by the committee made in the 

name of the company, except for good cause shown, the 

court shall stay discovery for the time reasonably necessary to permit the committee to make its investigation. 

This subsection does not prevent the court from enforcing a person’s right to information under section 21-139 

or, for good cause shown, granting extraordinary relief 

in the form of a temporary restraining order or preliminary injunction.

(b) A special litigation committee may be composed 

of one or more disinterested and independent individuals, 

who may be members.

(c) A special litigation committee may be appointed:

(1) in a member-managed limited liability company:

(A) by the consent of a majority of the members not 

named as defendants or plaintiffs in the proceeding; and

(B) if all members are named as defendants or plaintiffs in the proceeding, by a majority of the members 

named as defendants; or

(2) in a manager-managed limited liability company:

(A) by a majority of the managers not named as 

defendants or plaintiffs in the proceeding; and

(B) if all managers are named as defendants or plaintiffs in the proceeding, by a majority of the managers 

named as defendants.

(d) After appropriate investigation, a special litigation 

committee may determine that it is in the best interests of 

the limited liability company that the proceeding:

(1) continue under the control of the plaintiff;

(2) continue under the control of the committee;

(3) be settled on terms approved by the committee; or

(4) be dismissed.

(e) After making a determination under subsection (d) 

of this section, a special litigation committee shall file 

with the court a statement of its determination and its 
- 805 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

report supporting its determination, giving notice to the 

plaintiff. The court shall determine whether the members 

of the committee were disinterested and independent and 

whether the committee conducted its investigation and 

made its recommendation in good faith, independently, 

and with reasonable care, with the committee having the 

burden of proof. If the court finds that the members of 

the committee were disinterested and independent and 

that the committee acted in good faith, independently, and 

with reasonable care, the court shall enforce the determination of the committee. Otherwise, the court shall dissolve the stay of discovery entered under subsection (a) 

of this section and allow the action to proceed under the 

direction of the plaintiff.

[22] The purpose of a special litigation committee is to 

investigate the claims made in the action and determine whether 

pursuing the action is in the best interests of the company. 48

This determination involves weighing, among other things, the 

merits of the litigation against the direct expenses of litigation 

and the indirect costs of litigation such as potential waste of 

management time and adverse public relations. 49 Generally the 

action is stayed during the investigation. 50

[23] The special litigation committee balances the rights 

and duties of the board and dissenting shareholders by providing a corporation with an important tool to rid itself of 

meritless or harmful litigation while preventing directors from 

using the committee to wrest control of bona fide derivative claims away from well-meaning plaintiffs. 51 The court 

enforces the special litigation committee’s business decision 

48 § 21-168.

49 See Minor Myers, The Decisions of the Corporate Special Litigation 

Committees: An Empirical Investigation, 84 Ind. L.J. 1309 (2009).

50 See id.

51 19 Am. Jur. 2d Corporations § 1965 (2015).
- 806 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

if the court finds that the members of the committee were 

disinterested and independent and that the committee acted in 

good faith, independently, and with reasonable care. 52 If the 

special litigation committee fails to prove those things, the 

suit continues under the control of the original plaintiff. 53

Under § 21-168, assuming the court finds the special litigation committee has proved its members were disinterested 

and independent and that the special litigation committee conducted its investigation and made its recommendation in good 

faith, independently, and with reasonable care, the determination the court shall enforce will be one of four options recommended by the committee: (1) that the action continue under 

the control of the minority member plaintiff who brought it, (2) 

that the action continue under the control of the committee, (3) 

that the action be settled on terms approved by the committee, 

or (4) that the action be dismissed. 54 If the court does not find 

the special litigation committee has proved its members were 

disinterested and independent and that the committee conducted its investigation and made its recommendation in good 

faith, independently, and with reasonable care, then the result 

is, in essence, option one.

Under all of these options the LLC remains the plaintiff. 

Under options one and two, the action continues on its regular 

course under either the minority member’s or the special litigation committee’s direction as representative of the company 

plaintiff. Options three and four effectively put the control of 

the litigation in the hands of the special litigation committee, 

which has elected to resolve the matter through settlement or 

dismissal rather than litigate.

In the case of Platte Valley Nat. Bank v. Lasen,

 55 we 

found analogous proceedings were not special for purposes 

52 See § 21-168.

53 See id.

54 See id.

55 Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347 (2007).
- 807 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

of § 25-1902. Therein we held that regardless of the method 

under which revivor is sought, it is not a final order and 

cannot be appealed until a final judgment in the case is rendered. A revivor, we said, simply substitutes “‘one party for 

another as an incident in the original cause’”; a representative 

takes the place of the deceased party and the action continues. 56 We reasoned that such an order is not made in a special proceeding; it is merely a step or proceeding within the 

overall action.

Likewise, proceedings under § 21-168 are fundamentally 

about which party controls the original cause. Either the minority member or the committee effectively takes the place of the 

LLC. As such, any proceedings under § 21-168 are merely a 

step in the underlying derivative action. Orders made pursuant 

to § 21-168 are not made during a special proceeding.

(b) Substantial Right

[24-27] Furthermore, an order under § 21-168 does not 

affect a substantial right. A substantial right is an essential 

legal right, not a mere technical right. 57 A substantial right is 

affected if an order affects the subject matter of the litigation, 

such as by diminishing a claim or defense that was available to 

an appellant before the order from which an appeal is taken. 58

It is not enough that the right itself be substantial; the effect 

of the order on that right must also be substantial. 59 Thus, for 

example, the duration of an order is relevant to whether it 

affects a substantial right. 60

[28-30] Whether the effect of an order is substantial 

depends on “‘whether it affects with finality the rights of the 

56 Id. at 611, 732 N.W.2d at 353.

57 In re Estate of Beltran, supra note 3.

58 Id.

59 In re Interest of Zachary B., 299 Neb. 187, 907 N.W.2d 311 (2018).

60 Yori v. Helms, 307 Neb. 375, 949 N.W.2d 325 (2020).
- 808 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

parties in the subject matter.’” 61 Substantial rights under 

§ 25-1902 include those legal rights that a party is entitled to 

enforce or defend. 62 Most fundamentally, an order affects a 

substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate review. 63

We held in Platte Valley Nat. Bank that revivor does not 

affect a substantial right, reasoning: “The fact that an order 

of revivor may move the case forward to trial does not mean 

that the order affects a substantial right of the opposing party. 

Ordinary burdens of trial do not necessarily affect a substantial 

right.” 64 We said, further, that the order of revivor does not 

determine the rights of the parties to the action; rather, the 

cause is retained for further action. 65 We have similarly held 

that orders substituting party plaintiffs do not affect substantial 

rights of the parties in the cause. 66

In Cinatl v. Prososki,

 67 we held that an order denying an 

application to vacate an arbitration award does not affect a 

substantial right, despite the appellant’s argument that the 

right to challenge the validity of an award through an application to vacate is an essential legal right. We reasoned that this 

argument overlooked the imminent appealability of an order 

confirming the award. We held that the right to challenge the 

validity of the award can be vindicated in an appeal from 

an order confirming the arbitration award, which must occur 

61 In re Interest of Mekhi S. et al., 309 Neb. 529, 534, 960 N.W.2d 732, 757 

(2021).

62 In re Estate of Beltran, supra note 3.

63 See, Porter v. Porter, 309 Neb. 167, 959 N.W.2d 235 (2021); Gem City 

Bone & Joint v. Meister, 306 Neb. 710, 947 N.W.2d 302 (2020); Tilson v. 

Tilson, 299 Neb. 64, 907 N.W.2d 31 (2018).

64 Platte Valley Nat. Bank v. Lasen, supra note 55, 273 Neb. at 611, 732 

N.W.2d at 353.

65 See id.

66 See Hall v. Vanier, 7 Neb. 397 (1878).

67 Cinatl v. Prososki, supra note 4.
- 809 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

within 60 days after a party’s application to do so. To allow 

orders denying an application to vacate an arbitration award 

to be immediately appealable would frustrate the purposes of 

arbitration, which is to have quick resolution of disputes and 

avoid the expense and delay associated with litigation. 68

The court orders enforcing special litigation committee 

determinations of options three or four lead, like in Cinatl, 

imminently to final judgments. Their effect as independent 

orders is of limited duration, and any delay in their enforcement does not substantially affect any substantial right.

Options one and two may result in protracted litigation that 

a party might later contend was controlled by the wrong person or entity, but, even so, such claimed right under § 21-168 

can be effectively vindicated in an appeal from the final judgment of the derivative action. Unlike, for example, certain 

orders for the sale of real or personal property, 69 which we 

have held cannot be effectively vindicated in an appeal from 

the final judgment, any dispute about who controlled the derivative action is a dispute ultimately about money. The remedy 

for prejudicial error would be reversal and a potential new trial 

and its associated costs.

[31] As stated in Platte Valley Nat. Bank, ordinary burdens of trial do not necessarily affect a substantial right. 70

Similarly, in the context of the attempted appeal from the 

denial of a motion for summary judgment, wherein the appellant complained of being subjected to a long and expensive 

trial, we said, “The mere fact that a person is subjected to 

inconvenience, annoyance, discomfort, or even expense, by 

a decree does not entitle him to appeal from it, as long as 

he is not thereby concluded from asserting or defending his 

68 See id.

69 See, In re Estate of Beltran, supra note 3; In re Estate of McKillip, 284 

Neb. 367, 820 N.W.2d 868 (2012).

70 Platte Valley Nat. Bank v. Lasen, supra note 55.
- 810 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

claims of personal or property rights in any proper court.” 71

Being subjected to trial does not affect an essential legal right 

and thus does not affect a substantial right. 72

Moreover, a party who initially suspects the motives or 

abilities of the person or entity controlling the litigation may 

ultimately be satisfied with its outcome, making the question of 

who represented the company moot. And it has been said that 

a relevant consideration in determining if an order is immediately appealable as a final order is whether it “may be mooted 

by subsequent developments in the litigation.” 73

We recognize that in this case the court neither enforced the 

determination of the Committee nor allowed the action to proceed under the direction of Tegra, because it was unconvinced 

the Committee properly chose one of the statutory options. In 

other words, the order being appealed from did not have the 

effect of one of the four statutory options discussed above. 

The court instead ordered mediation and further recommendations by the Committee. Both parties argue in this appeal that 

their right under § 21-168 to a binary choice between adopting 

the Committee’s recommendation and allowing the action to 

proceed under the minority member’s control was prejudiced 

and that the court exceeded its authority in ordering mediation. 

Tegra also asserts the Committee should not be given a second 

chance to make a proper recommendation. Even considering 

the unique nature of the order in question, we find it did not 

affect a substantial right.

[32-34] Mediation means a process in which a mediator 

facilitates communication and negotiation between parties to 

assist them in reaching a voluntary agreement regarding their 

dispute. 74 Any agreement or resolution made in mediation 

71 Rehn v. Bingaman, 157 Neb. 467, 472, 59 N.W.2d 614, 617 (1953).

72 See id.

73 Lenich, supra note 39 at 284.

74 Neb. Rev. Stat. § 25-2931 (Reissue 2016).
- 811 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

or another form of alternative dispute resolution shall be voluntarily entered into by the parties. 75 One of the purposes of mediation is to efficiently reduce the volume of matters burdening 

the court system. 76 While it does not appear we have addressed 

the finality of mediation orders, in other jurisdictions, court 

orders directing the parties to participate in mediation and 

report back to the court are not immediately appealable. 77 We 

hold that an order to mediate does not affect any substantial 

right of the parties. It would undermine the efficiencies inherent to mediation to allow interlocutory appeals of such orders, 

which do not, in any event, diminish the underlying issues of 

the action. While the parties may consider themselves inconvenienced by an order to mediate, again, the fact that a person is 

subjected to inconvenience by a court’s order does not in and 

of itself entitle one to appeal. 78

As for the part of the court’s order requiring further recommendations by the special litigation committee following the 

attempts at mediation, such order is inherently of temporary 

duration and a matter retained by the court for further action. 

Tegra’s arguments about the rights affected by the order can be 

resolved in an appeal from the final judgment—in the event the 

dispute is not settled through mediation.

VI. CONCLUSION

We understand that Tegra filed this appeal out of an 

abundance of caution and that our final order jurisprudence 

75 Neb. Rev. Stat. § 25-2943 (Reissue 2016).

76 Neb. Rev. Stat. § 25-2902 (Reissue 2016).

77 See, Tutu Park, Ltd. v. O’Brien Plumbing Co., Inc., 180 F. Supp. 2d 673 

(D.V.I. 2002); Ellis v. Reynolds, 368 Ark. 572, 247 S.W.3d 845 (2007);

Short Bros. Const. v. Korte & Luitjohan, 356 Ill. App. 3d 958, 828 N.E.2d 

754, 293 Ill. Dec. 444 (2005); Fair Share Housing v. Cherry Hill, 242 N.J. 

Super. 76, 576 A.2d 24 (1990); Valley Coal v. Intern. Union, UMWA, 402 

Pa. Super. 141, 586 A.2d 436 (1991); Walsh v. Larsen, 705 N.W.2d 638 

(S.D. 2005).

78 Hernandez v. Blankenship, 257 Neb. 235, 596 N.W.2d 292 (1999).
- 812 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

TEGRA CORP. v. BOESHART

Cite as 311 Neb. 783

has never addressed orders pertaining to special litigation 

committees. But, for the foregoing reasons, we find that the 

court’s order for mediation and further recommendation is not 

a final order under § 25-1902. As a result, we lack jurisdiction 

over Tegra’s appeal and the Boesharts’ cross-appeal.

Appeal dismissed.

Heavican, C.J., not participating.