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Jlee Rafert et al., appellants and cross-appelle

v. Robert J. Meyer, defendant and third-

plaintiff, appellee and cross-appellant

Gerald C. Bryce et al., third-par

defendants, appellee

___ N.W.2d ___

Filed December 22, 2017. No. S-16-1116.

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.

Nebraska Supreme Court Online Library

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

12/29/2017 08:12 AM CST
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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 ap

dismissed.

Gary J. Nedved, of Keating, O’Gara, Nedved & Peter, P.C., 

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.
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Funke, J

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 

1 See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016).
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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 address and Meyer did not obtain 

mail from that address, Meyer and Rafert were unaware that 

the policies had lapsed.

Between August 2010 and July 2012, Rafert gave Bryce 

checks totaling $242,391.03 for renewal premiums, made payable to Bryce’s insurance company, Ag/Insurance Services, 

Inc. (Ag). Rafert believed that Bryce was forwarding the 

checks to the insurers; however, she learned that Bryce stole 

the payments and that her insurance policies had lapsed.

Rafert and her children (collectively appellants) sued 

Meyer for breach of his duties as the trustee. The complaint 

alleged that Meyer breached his fiduciary duties in a number of ways, and it sought to recover all premiums paid by 

Rafert in the total amount of $514,847.03. As an affirmative 

defense, Meyer alleged that appellants’ damages were caused 

by Bryce, Paradigm Financial Services, L.L.C. (Paradigm), 

and Ag.

Meyer filed a third-party complaint against Bryce, Paradigm, 

and Ag. He alleged that the lapse of the policies was due to 

their negligence and that they were responsible for the damages for which appellants alleged Meyer was liable. In Bryce’s 

responsive pleading, he asserted several affirmative defenses. 

He claimed that the causes of action against him were barred 

under Neb. Rev. Stat. § 25-21,185.11 (Reissue 2016), because 

appellants had released Bryce from all liability that he may 

have in this matter. Paradigm and Ag filed similar responsive pleadings.
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The district court ordered that Meyer’s third-party claim be 

separately set for trial after the trial on the merits of appellants’ 

suit against Meyer. Following a jury trial of appellants’ lawsuit 

against Meyer, the court accepted the jury’s verdict in favor 

of appellants and its determination of damages in the amount 

of $60,000.

On November 9, 2016, the district court entered a “Judgement 

Order.” The order entered judgment on behalf of appellants and 

against Meyer in the amount of $59,086.85, which represented 

the jury’s verdict of $60,000, less a credit of $913.15. It further entered judgment of $15,149.37 in appellants’ favor and 

against Meyer for attorney fees.

Appellants filed a motion for certification. They requested 

that the district court certify the November 2016 order as a 

final order as to their cause of action against Meyer. They 

asserted that “[t]he adjudication of the third-party action will 

not affect the issues on appeal and the Appellate Court will not 

review the same issue twice.”

During the hearing on the motion, the district court first gave 

Meyer 10 days to amend his third-party complaint in order 

to add other individuals who worked for Ag. In discussing 

Meyer’s request and immediately before the court addressed 

the certification motion, counsel for Bryce, Paradigm, and 

Ag stated that “the basis of the third-party complaint all has 

to do with the first-party complaint. . . . [I]f there is no judgment against [Meyer], then there is no claim against [Bryce, 

Paradigm, and Ag] or anybody else . . . .” With respect to the 

motion for certification, the court stated:

I know the Court generally doesn’t like to do that. They 

want me to try the whole thing and get it over with, but 

as I’m listening to this, I realize it’s just going to be a 

long time before they even get — it’d probably be three 

or four months before they can even get ready to try 

their case.

The court further stated, “I don’t know how — I assume that 

the Court will grant — will grant your request, but I never 
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know because they could find it — not a final order, but I 

assume that they will based on my certification.”

The district court entered an order granting the motion for 

certification. The order stated:

The Court finds and certifies the Judgement Order entered 

on November 9, 2016 is a Final Order within the meaning of Neb. Rev. Stat. §25-1902 [(Reissue 2016)] as to 

the cause of action for breach of fiduciary duty brought 

by [appellants] against . . . Meyer and all issues associated with [appellants’] claims against [Meyer]. The Court 

further finds that pursuant to Neb. Rev. Stat. §25-1315(1), 

there is no just reason for the delay of an appeal.

On that same day, appellants filed a notice of appeal. We 

ordered supplemental briefing, which we have now considered, 

regarding the propriety of the certification.

ASSIGNMENTS OF ERROR

Although appellants assign error to the proceedings and 

Meyer assigns error on cross-appeal, we do not reach the 

assignments.

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

ANALYSIS

[3,4] 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 In order to vest 

2 Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d 

825 (2017).

3 Id.

4 Id.
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an appellate court with jurisdiction, a notice of appeal must 

be filed within 30 days of the entry of the final order.5 To be 

appealable, an order must satisfy the final order requirements 

of Neb. Rev. Stat. § 25-1902 (Reissue 2016) and, additionally, 

where implicated, § 25-1315(1).6

[5,6] 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 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 § 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.8

 All three components are met here, but we are 

concerned with the propriety of the court’s determination that 

there is no just reason for delay.

[7,8] The intent behind § 25-1315(1) was to prevent interlocutory appeals, not to make them easier.9

 Ten years ago, we 

instructed 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. The power § 25-1315(1) confers upon 

5 Id.

6 Id.

7 See id.

8 Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391 

(2015).

9 See id.
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the trial judge should only be used “‘“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

The message that certification must be reserved for the “unusual 

case” has been repeated numerous times.11

[9] Nebraska courts have also repeatedly stated that when a 

trial court concludes entry of judgment under § 25-1315(1) is 

appropriate, it should ordinarily make specific findings setting 

forth the reasons for its order.12 Here, the court’s order merely 

used the language of the statute and did not explain why certification was appropriate. While the absence of detailed findings by the trial court does not require automatic dismissal,13

it is difficult to accord deference to a court’s decision when 

there is no reasoning to support it. We once again remind 

trial courts that a decision to certify an order as final under 

§ 25-1315(1) should be supported by the court’s reasoning for 

doing so.

Without specific findings to support the district court’s certification, we turn to the record in search of some indication 

10 Cerny v. Todco Barricade Co., 273 Neb. 800, 809-10, 733 N.W.2d 877, 

886 (2007).

11 See, Castellar Partners v. AMP Limited, supra note 8; Poppert v. Dicke, 

275 Neb. 562, 747 N.W.2d 629 (2008) (Gerrard, J., concurring); Southwest 

Omaha Hospitality v. Werner-Robertson, 20 Neb. App. 930, 834 N.W.2d 

617 (2013); Halac v. Girton, 17 Neb. App. 505, 766 N.W.2d 418 (2009); 

Sand Livestock Sys. v. Svoboda, 17 Neb. App. 28, 756 N.W.2d 299 (2008); 

Jones v. Jones, 16 Neb. App. 452, 747 N.W.2d 447 (2008); Murphy v. 

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

12 See, Castellar Partners v. AMP Limited, supra note 8; Cerny v. Todco 

Barricade Co., supra note 10; Southwest Omaha Hospitality v. WernerRobertson, supra note 11; Halac v. Girton, supra note 11; Sand Livestock 

Sys. v. Svoboda, supra note 11; Jones v. Jones, supra note 11; Murphy v. 

Brown, supra note 11.

13 See Sand Livestock Sys. v. Svoboda, supra note 11.
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of an exceptional need for immediate appellate intervention.14

Appellants’ motion requested certification for the following 

reasons: (1) No appeal could move forward until the thirdparty claim between Meyer and the third-party defendants 

was resolved, (2) delaying the appeal would be contrary to 

the benefits achieved in the bifurcation of breach of fiduciary 

duty action and the third-party claim, (3) the adjudication of 

the third-party claim would not affect the issues on appeal 

and the appellate court would not review the same issue 

twice, and (4) the breach of fiduciary duty action had been 

in litigation since 2013 and further delay of an appeal would 

unnecessarily lengthen that time. And we can glean from 

the court’s statement during the hearing on the motion for 

certification that it was concerned about the delay in trying 

the case Meyer brought against Bryce and the other thirdparty defendants.

[10,11] In determining whether certification is warranted, 

a trial court must take into account judicial administrative 

interests as well as the equities involved.15 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.16 As a starting 

point for considering certification of a final judgment, it is 

14 See Castellar Partners v. AMP Limited, supra note 8.

15 Id.

16 Cerny v. Todco Barricade Co., supra note 10.
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appropriate for the trial court to consider whether the claims 

under review are separable from the others remaining to be 

adjudicated and whether the nature of the claims already 

determined was such that no appellate court would ever have 

to decide the same issues more than once even if there were 

subsequent appeals.17

[12,13] We begin by examining the interrelationship 

between the adjudicated and unadjudicated claims. Appellants 

claim in their supplemental brief that there is no relationship 

between the claims. But that belies the nature of a third-party 

claim. 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.18 A third-party 

claim may be asserted only when the third party’s liability is 

in some way dependent on the outcome of the main claim or 

when the third party is secondarily liable to defendant.19 Thus, 

some degree of relatedness is inherent in a suit involving a 

third-party claim. “‘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.’”20

The facts also demonstrate the interrelationship of the 

claims. “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.”’”21 Here, appellants sued Meyer for 

breach of fiduciary duties. His use of a mailing address in 

17 Id.

18 AgriStor Credit Corp. v. Radtke, 218 Neb. 386, 356 N.W.2d 856 (1984).

19 Id.

20 Id. at 390, 356 N.W.2d at 859.

21 Cerny v. Todco Barricade Co., supra note 10, 273 Neb. at 813, 733 

N.W.2d at 888-89.
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South Dakota—that he did not check or have mail forwarded 

from—prevented appellants and Meyer from knowing that 

the checks Rafert gave to Bryce were not being used to pay 

the premiums on the insurance policies. Because Bryce stole 

those checks, Meyer claims that Bryce is the proximate cause 

of appellants’ damages. And on cross-appeal, Meyer brings up 

issues related to Bryce’s settlement with Rafert’s husband, in 

connection with which Rafert dismissed her lawsuit against 

Bryce—a lawsuit that alleged the same damages as her lawsuit against Meyer. Here, there is overlap—both factually 

and legally—between appellants’ lawsuit against Meyer and 

Meyer’s third-party claim against Bryce, Paradigm, and Ag. 

“It is uneconomical for an appellate court to review facts on 

an appeal following a . . . certification that it is likely to be 

required to consider again when another appeal is brought after 

the district court renders its decision on the remaining claims 

or as to the remaining parties.”22

The parties contend that certification was appropriate 

because a reviewing court would not be obliged to consider 

the same issues a second time. They highlight that appellants’ claim against Meyer was for breach of fiduciary duties 

and that Meyer’s claim against the third-party defendants 

was for contribution. And they contend that the contribution 

claim would not involve any of the issues currently on appeal. 

Appellants go a step further and argue that the contribution 

claim cannot even be adjudicated until the amount Meyer is 

required to pay appellants is finally determined. But it would 

be most efficient for the reviewing court to have the claims 

presented for review as a unified package.

The circumstances here do not make this the “unusual 

case.” In urging us to accept jurisdiction over the appeal, 

Meyer argues that our resolution of the issues on appeal could 

22 10 Charles Alan Wright et al., Federal Practice and Procedure § 2659 at 

110 (2014).
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eliminate the need for a trial of his third-party claim. While we 

understand Meyer’s desire for an early appeal, § 25-1315 was 

not intended to multiply appeals merely upon the uncertain 

hope that doing so might avoid future proceedings. According 

to the district court, there probably would be a delay of 3 to 

4 months before the third-party complaint would be ready for 

trial. But nothing in the record suggested that such a delay 

would cause an unusual hardship for the parties. We conclude 

that the court abused its discretion in certifying the November 

9, 2016, order as final under § 25-1315(1).

CONCLUSION

We conclude that the district court abused its discretion in 

certifying the November 9, 2016, order as final. We therefore vacate the court’s order certifying a final judgment, and 

because there is no final judgment, we dismiss the appeal for 

lack of jurisdiction.

Order vacated, and appeal dismiss

Wright, J., not participating