Abante, LLC v. Premier Fighter, L.L.C.

• Decision Date: 10 April 2012
• Docket Number: No. A–11–202.,A–11–202.
• Citation: 814 N.W.2d 109,19 Neb.App. 730
• Parties: ABANTE, LLC, doing business as Abante Marketing and Abante Holdings, LLC, appellant, v. PREMIER FIGHTER, L.L.C., et al., appellees.
• Court: Nebraska Court of Appeals

19 Neb.App. 730

814 N.W.2d 109

ABANTE, LLC, doing business as Abante Marketing and Abante Holdings, LLC, appellant,

v.PREMIER FIGHTER, L.L.C., et al., appellees.

No. A–11–202.

Court of Appeals of Nebraska.

April 10, 2012.

Syllabus by the Court

[19 Neb.App. 730]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. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case.

3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.

4. Final Orders: Appeal and Error. Under Neb.Rev.Stat. § 25–1902 (Reissue 2008), the three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered.

5. Summary Judgment: Final Orders. The granting of a summary judgment is a final order where it concludes all issues between the two parties on either side of the motion.

[19 Neb.App. 731]6. Final Orders: Appeal and Error. An appellate court's role is not to find a determination under Neb.Rev.Stat. § 25–1315 (Reissue 2008) by implication; rather, an appellate court's review is limited to an analysis of the express determination made by the trial court.

7. Final Orders: Jurisdiction: Appeal and Error. Without an express determination that there is no reason for delay and an express direction for the entry of final judgment from the trial court, an appellate court is without jurisdiction to hear an appeal from an order that does not dispose of all of the claims against all of the parties.

John C. Fowles, of Fowles Law Office, P.C., L.L.O., Lincoln, NE, for appellant.

Steven M. Delaney, of Reagan, Melton & Delaney, L.L.P., La Vista, NE, for appellee MMAStop, Inc.

IRWIN, SIEVERS, and MOORE, Judges.

MOORE, Judge.

INTRODUCTION

Abante, LLC, doing business as Abante Marketing and Abante Holdings, LLC, appeals from an order of the district court for Sarpy County, Nebraska, that entered summary judgment in favor of MMAStop, Inc., one of the appellees. Pursuant to this court's authority under Neb. Ct. R.App. P. § 2–111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Because the order appealed from fails to dispose of the claims against the remaining appellees, two of whom are the subject of a bankruptcy stay, and fails to make findings necessary for certification under Neb.Rev.Stat. § 25–1315 (Reissue 2008), we dismiss the appeal for lack of jurisdiction.

BACKGROUND

In its operative complaint, Abante alleged that Matthew H. Anselmo induced Abante to finance a merchandise order from a retailer for Premier Fighter, L.L.C.; that Abante agreed to finance approximately $240,000 of the order; and that pursuant to instructions from Anselmo, Abante sent approximately $120,000 to MMAStop by wire transfer to begin the production of merchandise, with the remainder sent directly to Premier Fighter. Abante further alleged that Anselmo, acting as an employee and agent of Premier Fighter, executed a promissory note to Abante in the amount of $240,000, due on or before October 12, 2008, with interest to accrue at 100 percent. Abante alleged that only one payment of $3,500 has been made on the note, which payment was received from M & M Marketing, L.L.C. Abante alleged that the money it wired to MMAStop was not used for the production of merchandise, but was instead used to offset indebtedness of Anselmo to MMAStop. Abante sought recovery against Premier Fighter on the promissory note in the total sum of $476,500, representing principal and interest remaining due. Abante sought recovery against Anselmo and M & M Marketing for the same amount, alleging that they were jointly and severally liable for the obligation of Premier Fighter by virtue of Anselmo's having disregarded the corporate identities of Premier Fighter and M & M Marketing. Abante sought recovery against Anselmo in the sum of $236,500 on the basis of fraud, asserting that Anselmo fraudulently induced Abante to make a loan. Finally, Abante sought recovery against MMAStop for return of the wired money in the sum of $120,000.

During the pendency of the proceedings, a suggestion in bankruptcy was filed showing that Premier Fighter and M & M Marketing had filed involuntary chapter 7 bankruptcy petitions. The district court entered an order for bankruptcy stay, staying all future proceedings in the case. Thereafter, Abante filed a motion seeking approval to proceed against MMAStop only, which motion was granted by the district court in an order which further indicated that the bankruptcy stay remained in place as to all other defendants. The record shows that Anselmo was the sole owner of M & M Marketing, which in turn owned Premier Fighter. At the time of the summary judgment hearing, Anselmo was incarcerated in a federal prison as a result of a fraud conviction.

MMAStop moved for summary judgment, and a hearing was held at which numerous depositions and exhibits were received in evidence. On February 24, 2011, the district court entered an order granting summary judgment in favor of MMAStop, finding that Abante's cause of action for money had and received against MMAStop was without merit. The order did not address the remaining defendants, did not dismiss the action, and did not make any findings under § 25–1315. Abante filed this timely appeal.

ASSIGNMENT OF ERROR

Abante assigns, summarized and restated, that the district court erred in granting summary judgment in favor of MMAStop.

STANDARD OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).

ANALYSIS

The dispositive issue in this appeal is whether the district court's order granting summary judgment in favor of MMAStop is a final, appealable order. Before reaching the legal issues presented for review, it is the duty of an appellate court to settle jurisdictional issues presented by a case. Id. For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken. Wright v. Omaha Pub. Sch. Dist., 280 Neb. 941, 791 N.W.2d 760 (2010). Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. Id. Under Neb.Rev.Stat. § 25–1902 (Reissue 2008), the three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right in an action and which in effect determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered. Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763 N.W.2d 77 (2009).

It has been recognized that the granting of a summary judgment is a final order where it concludes all issues between the two parties on either side of the motion. See Blue Cross and Blue Shield v. Dailey, 268 Neb. 733, 687 N.W.2d 689 (2004). However, where multiple parties are involved in the case, § 25–1315(1) is implicated. This section 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 partiesare 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...