Herman Trust v. Brashear 711 Trust
| Decision Date | 17 February 2015 |
| Docket Number | Nos. A–13–895 through A–13–897,s. A–13–895 through A–13–897 |
| Citation | 860 N.W.2d 431 |
| Parties | Herman Trust, appellee, v. Brashear 711 Trust, appellant. Herman Trust, appellee, v. Brashear LLP, appellant. Herman Trust, appellee, v. Kermit A. Brashear, appellant. |
| Court | Nebraska Court of Appeals |
Steven D. Davidson, of Baird Holm, L.L.P., Omaha, for appellants.
James P. Waldron and Christopher J. Tjaden, of Gross & Welch, P.C., L.L.O., Omaha, for appellee.
Syllabus by the Court
1. Judgments: Jurisdiction.When a jurisdictional question does not involve a factual dispute, the issue is 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 determine whether it has jurisdiction over the matter before it.
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.An order is final for purposes of appeal if it affects a substantial right and (1) determines the action and prevents a judgment, (2) is made during a special proceeding, or (3) is made on summary application in an action after judgment is rendered.
5. Final Orders: Motions to Dismiss.A denial of a motion to dismiss is not a final order.
6. Summary Judgment: Final Orders: Appeal and Error.A denial of a motion for summary judgment is not a final order and therefore is not appealable.
7. Final Orders: Appeal and Error.To fall within the collateral order doctrine, an order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.
8. Final Orders: Appeal and Error.The collateral order doctrine is a narrow exception that should never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.
9. Courts: Final Orders: Appeal and Error.Because the collateral order doctrine has its source in decisions of the U.S. Supreme Court, Nebraska courts review cases decided by the federal courts for guidance.
10. Final Orders: Appeal and Error.The mere identification of some interest that would be irretrievably lost has never sufficed to meet the third requirement of the collateral order doctrine—that an order be effectively unreviewable on appeal from a final judgment.
11. Immunity: Final Orders: Appeal and Error.The right to avoid litigation pursuant to a claim for governmental immunity from suit is reviewable under the collateral order doctrine on an interlocutory appeal when the facts are not disputed.
12. Immunity: Liability.A claim for governmental immunity is based in immunity from suit and is not simply a defense against liability, which immunity is effectively lost if a case is erroneously permitted to go to trial.
13. Immunity: Public Officers and Employees.Governmental immunity is the entitlement not to stand trial or face the other burdens of litigation; requiring an official with a colorable immunity claim to defend a suit for damages would be disruptive of effective government and would cause harm that the immunity was meant to avoid.
14. Judgments: Final Orders.Whether a right is adequately vindicable or effectively reviewable cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement.
15. Constitutional Law: Statutes: Immunity: Final Orders.A policy embodied in a constitutional or statutory provision entitling a party to immunity from suit is of such importance that it justifies a departure from the operation of ordinary final judgment principles.
16. Final Orders: Compromise and Settlement: Appeal and Error.Rights under private settlement agreements can be adequately vindicated on appeal from final judgment.
17. Compromise and Settlement: Appeal and Error.A refusal to enforce a settlement agreement claimed to shelter a party from suit altogether does not supply the basis for immediate appeal.
18. Courts: Appeal and Error.The U.S. Supreme Court has instructed courts of appeals to view claims of a right not to be tried with skepticism, if not a jaundiced eye.
19. Limitations of Actions: Words and Phrases.A tolling agreement is an agreement between a potential plaintiff and a potential defendant by which the defendant agrees to extend the statutory limitations period on the plaintiff's claim, usually so that both parties will have more time to resolve their dispute without litigation.
20. Trial: Judgments: Appeal and Error.It is not mere avoidance of a trial, but avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is effectively unreviewable if review is to be left until later.
The present interlocutory appeals arise out of three separate but related actions filed by the Herman Trust against Kermit A. Brashear; Brashear LLP, his law practice; and the Brashear 711 Trust (the 711 Trust), a nominee trust for the benefit of Brashear and his wife (collectively the Brashears), to recover on a promissory note and personal guaranties executed by the Brashears. The Brashears filed separate motions to dismiss in each case, claiming that the lawsuits were filed prior to the expiration or termination of a tolling agreement executed by the Brashears. The district court overruled the motions to dismiss, finding that the tolling agreement applied to professional negligence claims only and not the claims at issue. The Brashears now appeal from the district court's order denying their motions to dismiss, claiming this court has appellate jurisdiction to review the district court's order under the collateral order doctrine. We disagree and dismiss all three appeals for lack of jurisdiction.
Brashear is a licensed Nebraska attorney and the sole equity partner of Brashear LLP. Brashear provided legal services to R.L. Herman, his family, and his business interests for more than 30 years. Herman served as trustee of the Herman Trust.
On January 17, 2011, the 711 Trust executed and delivered to the Herman Trust a promissory note (the Note) in the principal amount of $764,000, with an interest rate of 5 percent per annum. The Note provided that the commercial building owned by the 711 Trust, and occupied by Brashear LLP, would be used as collateral for the loan. Pursuant to the Note, it was to be repaid in equal monthly interest-only payments commencing on February 17. The principal was not required to be repaid until the sale of the building, until the death of Brashear, or until October 12, 2012, whichever occurred first. The Note provided that upon the happening of one of those events, the repayment of the full principal amount plus all accrued interest was due within 30 days.
In connection with the Note, on January 17, 2011, Brashear LLP and Brashear, individually, each executed a personal guaranty of the Note, agreeing to unconditionally and irrevocably guarantee the full and timely payment of the Note by the 711 Trust.
Brashear prepared the loan documents utilized in connection with this transaction.
Sometime in August 2012, the Herman Trust retained new legal counsel, which provided the Herman Trust with advice regarding the representation provided to the Herman Trust by Brashear. The Herman Trust's new counsel opined that Brashear failed to meet the applicable standard of care for a transactional attorney with respect to the loan transaction and the documents prepared by Brashear in connection with the transaction.
Pursuant to the agreement, Brashear and Brashear LLP waived and agreed not to assert the defense of the statute of limitations, and the parties agreed that the running of any statute of limitations or statute of repose would be tolled for 1 year or until the agreement was terminated by 30 days' written notice.
Less than 2 months later, on March 7, 2013, the Herman Trust filed three separate complaints against the 711 Trust, Brashear LLP, and Brashear. In its complaint against the 711 Trust, the Herman Trust alleged that the 711 Trust defaulted on the Note for failure to make payments, that the Herman
Trust was owed the principal sum of $764,000 plus accrued interest in the amount of $15,278.90, and that the Herman Trust had made a demand for payment, but that the amount owed remained unpaid. The Herman Trust's separate complaints against Brashear and Brashear LLP sought to recover the unpaid amount pursuant to their personal guaranties executed in connection with the Note.
On April 17, 2013, the 711 Trust, Brashear LLP, and Brashear each filed a motion to dismiss, alleging that the district court lacked subject matter jurisdiction, that the complaint failed to state a claim, and that the Herman Trust failed to join necessary parties. The basis for each motion was that the tolling agreement prohibited the filing of the lawsuits.
A hearing on the motions was held on October 1, 2013. The court received into evidence affidavits and exhibits from the parties and treated the motions to dismiss as motions for summary judgment. The court entered an order on ...
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...Courts in other States addressing the issue similarly have denied an immediate appeal. See, e.g., Herman Trust v. Brashear 711 Trust, 22 Neb. App. 758, 767-770, 860 N.W.2d 431 (2015) (comparing private tolling agreement to settlement agreement and holding both not immediately appealable); G......
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...have granted her motion to dismiss. Generally, a denial of a motion to dismiss is not a final order. Herman Trust v. Brashear 711 Trust , 22 Neb. App. 758, 860 N.W.2d 431 (2015). We need not determine whether an exception exists in juvenile proceedings where the motion questions subject mat......