Last Pass Aviation v. Western Co-op Co., 296 Neb. 165

In 2011, Tony D. Peterson sold Last Pass Aviation to Western Cooperative Company (Westco); the purchase agreement included a 10-year, four-state covenant not to compete.
In 2014, Last Pass (seller and principals) sued for declaratory judgment that the covenant was overbroad and unenforceable; Westco counterclaimed for injunctive relief and later added breach-of-contract counterclaims seeking damages.
A temporary injunction was entered in April 2014; after trial, the district court ruled (Sept. 28, 2015) the noncompete was void as to geographic scope and duration but did not decide Westco’s breach counterclaims or Last Pass’s motion for fees/damages related to the injunction.
Westco initially appealed; the Court of Appeals dismissed for lack of jurisdiction because the district court had not resolved all claims under Neb. Rev. Stat. § 25-1315(1).
After remand, the parties stipulated and the district court entered a joint order dismissing the unresolved counterclaims and the fees/damages motion without prejudice, reserving the right to refile; Westco appealed that dismissal.
The Nebraska Supreme Court held the dismissal without prejudice did not create a final, appealable order because the parties could not convert an interlocutory decision into a final order by voluntarily dismissing remaining claims without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the covenant not to compete was overbroad and unenforceable	Last Pass: covenant is greater than reasonably necessary in scope and duration	Westco: covenant is reasonable to protect its business interests	Court did not reach merits because appeal lacked jurisdiction (order not final)
Whether a 10-year duration was supported by evidence	Last Pass: no evidence supports reasonableness of 10 years	Westco: evidence supports a 10-year protection period	Not reached due to lack of appellate jurisdiction
Whether the district court should have reformed/blue-penciled the covenant	Last Pass: no reformation necessary if covenant invalid	Westco: court should equitably reform covenant rather than void it	Not reached due to lack of appellate jurisdiction
Whether dismissal without prejudice of remaining claims creates final, appealable order	Last Pass: dismissal without prejudice preserves remaining claims and does not create finality	Westco: dismissal created an appealable order as to the declared invalidity	Held: dismissal without prejudice did not create final order; appeal dismissed for lack of jurisdiction

Koch v. Aupperle, 277 Neb. 560 (authority cited regarding fees/damages after injunction)
Malolepszy v. State, 270 Neb. 100 (finality rule: all claims/parties must be adjudicated or § 25-1315 determination required)
Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849 (party cannot voluntarily dismiss without prejudice to manufacture appellate jurisdiction)
Addy v. Lopez, 295 Neb. 635 (reaffirming that joint stipulation to dismiss without prejudice does not create appellate jurisdiction)