TDP Phase One v. The Club at the Yard
307 Neb. 795
| Neb. | 2020Background
- TDP Phase One, LLC (landlord) leased commercial premises to The Club at the Yard, LLC (Rule G) in 2013; Eric F. Marsh signed a guaranty.
- Rule G failed to pay rent for April–July 2019; TDP served a 3-day notice and sued for restitution under Nebraska's forcible entry and detainer (FED) statutes plus breach of lease and guaranty.
- Rule G asserted defenses and counterclaimed (breach, unjust enrichment, fraud) and filed third-party claims against the property manager and its owners.
- The district court granted partial summary judgment to TDP on the FED claim, finding proper notice and entitlement to restitution, but did not resolve the remaining claims or parties.
- Rule G and Marsh appealed the FED order without requesting certification under Neb. Rev. Stat. § 25-1315(1).
- The Nebraska Supreme Court dismissed the appeal for lack of jurisdiction because the partial adjudication involved multiple claims/parties and no § 25-1315 certification was entered.
Issues
| Issue | Plaintiff's Argument (TDP) | Defendant's Argument (Rule G/Marsh) | Held |
|---|---|---|---|
| Whether an appeal lies from a partial FED judgment when other claims/parties remain and no § 25-1315 certification was entered | FED appeals are governed "as provided for in a civil action," so § 25-1315 governs and requires certification for immediate appeal | The FED restitution order was appealable (relying on FED appeal statute) and merits review should proceed without § 25-1315 certification | Appeal dismissed for lack of jurisdiction; § 25-1315 certification required when multiple claims/parties remain |
| Whether § 25-21,233 (FED appeal statute) preempts § 25-1315 and makes FED orders immediately appealable | § 25-21,233 does not label FED orders an "appealable order" and expressly defers to civil appeal procedures, so it does not displace § 25-1315 | § 25-21,233 allows appeal from FED judgments without § 25-1315 (position asserted by appellants) | § 25-21,233 is read with civil appeal rules; it does not override § 25-1315 when other claims/parties remain |
| Merits challenges raised by Rule G/Marsh (overpayments/setoffs, discovery, notice sufficiency, guarantor liability) | TDP: notice was sufficient; acceptance of rent did not waive defaults; lease precluded setoff; guarantor liable; fraudulent-inducement claims time-barred | Rule G/Marsh: disputed rent accounting/setoff, sought discovery, challenged notice, argued guarantor not subject to restitution | Court did not reach merits because it lacked jurisdiction due to absence of § 25-1315 certification |
Key Cases Cited
- Rafert v. Meyer, 298 Neb. 461 (2017) (§ 25-1315 certification is reserved for unusual cases; prevents piecemeal appeals)
- R & D Properties v. Altech Constr. Co., 279 Neb. 74 (2009) (a more specific statute can make an order immediately appealable over § 25-1315)
- Bailey v. Lund-Ross Constructors Co., 265 Neb. 539 (2003) (§ 25-1315 requires express determination/no just reason for delay for partial final judgments)
- Cerny v. Todco Barricade Co., 273 Neb. 800 (2007) (court should be cautious in certifying partial judgments; certification is exceptional)
- Becher v. Becher, 299 Neb. 206 (2018) (specific statutory language controls when conflict exists)
- Boyd v. Cook, 298 Neb. 819 (2018) (absence of § 25-1315 certification bars interlocutory appeals)
- Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301 (2014) (appellate courts must independently assess jurisdiction)