Last Pass Aviation v. Western Co-op Co., 892 N.W.2d 108

In 2011 Last Pass Aviation (sellers) sold an aerial-spraying business to Western Cooperative Company (Westco); the purchase agreement included a 10‑year, four‑state covenant not to compete.
In 2014 Last Pass sued for a declaratory judgment that the noncompete was overbroad and unenforceable; Westco counterclaimed for injunctive relief and later added breach‑of‑contract counterclaims seeking damages and goodwill loss.
After trial, the district court (Sept. 28, 2015) held the covenant void as greater than reasonably necessary in geographic scope and duration; that order did not address Westco’s breach counterclaims or Last Pass’s posttrial motion for fees/damages tied to a temporary injunction.
Westco filed an interlocutory appeal, which the Court of Appeals dismissed for lack of jurisdiction because the district court had not resolved all claims under Neb. Rev. Stat. § 25‑1315.
The parties then stipulated to dismiss the remaining counterclaims and Last Pass’s fee/damages motion without prejudice and the district court entered a dismissal‑without‑prejudice order; Westco appealed that dismissal.
The Nebraska Supreme Court held the dismissal‑without‑prejudice did not create a final, appealable order and dismissed Westco’s appeal for lack of jurisdiction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the covenant not to compete was overbroad and unenforceable	Last Pass: covenant unreasonably broad in geography and duration; void	Westco: covenant reasonable to protect business interests; court should enforce or reform it	Court found covenant greater than reasonably necessary (void) in the Sept. 28 order (but that ruling is not here reviewed due to jurisdictional posture)
Whether a 10‑year duration was supported by evidence	Last Pass: no evidence supports 10‑year duration	Westco: evidence justified 10 years	Court below found no evidence supporting reasonableness of 10 years (not reviewed on appeal)
Whether appellate jurisdiction exists over the Sept. 28 ruling given unresolved claims	Last Pass: parties stipulated to dismissal without prejudice to allow appeal; creates finality	Westco: dismissal without prejudice creates appealable order allowing review	Court: dismissal without prejudice of unresolved claims does not render order final; appellate jurisdiction lacking — appeal dismissed
Whether parties could obtain interlocutory review by jointly dismissing remaining claims without prejudice	Last Pass: procedural mechanism acceptable	Westco: same	Court: parties may not manufacture finality by voluntary dismissal without prejudice; cannot seek interlocutory review that way

Koch v. Aupperle, 277 Neb. 560 (Neb. 2009) (remedies/fees following issuance of temporary injunction discussed)
Malolepszy v. State, 270 Neb. 100 (Neb. 2005) (finality rule: order not final unless all claims adjudicated or court makes express § 25‑1315 determination)
Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849 (Neb. 2004) (party cannot dismiss without prejudice to obtain interlocutory review of nonfinal order)
Addy v. Lopez, 295 Neb. 635 (Neb. 2017) (reaffirming that joint stipulation to dismiss without prejudice does not create appellate jurisdiction)