TDP Phase One v. The Club at the Yard
950 N.W.2d 640
Neb.2020Background
- TDP Phase One, LLC leased commercial premises to The Club at the Yard, LLC (Rule G) in 2013; Eric F. Marsh signed the lease and guaranty. Rule G failed to pay rent for April–July 2019.
- TDP served a 3-day notice to quit (mailed to Marsh; hand-delivered to Rule G’s attorney) and sued for restitution of possession under the FED statutes and for breach of lease and guaranty.
- Rule G asserted defenses (notice, waiver, setoff for alleged overpayments), counterclaimed for breach, unjust enrichment, and fraud, and asserted third-party claims against the property manager and its owners.
- The district court granted partial summary judgment to TDP on the FED (restitution) claim, finding notice proper and that rent was unpaid; it did not adjudicate TDP’s remaining breach/guaranty claims, Rule G’s counterclaims, or third-party claims.
- Rule G and Marsh appealed the restitution order but did not obtain a §25-1315 certification from the district court. The Nebraska Supreme Court dismissed the appeal for lack of jurisdiction under §25-1315(1).
Issues
| Issue | Plaintiff's Argument (TDP) | Defendant's Argument (Rule G / Marsh) | Held |
|---|---|---|---|
| Whether the partial summary judgment on FED was immediately appealable under §25-1315(1) | §25-21,233 allows appeal from FED judgments and appeals proceed as in civil actions, so the restitution order is appealable | §25-1315 requires express certification if fewer than all claims/parties are adjudicated; no certification was sought | Court: §25-1315 applies; no express determination/direction was made; appeal dismissed for lack of jurisdiction |
| Whether alleged overpayments showed rents were paid | Overpayments do not negate default; rent remained unpaid | Overpayments/prepayments could create setoff or show rent was paid | Court did not reach merits due to lack of jurisdiction; district court had found lease precluded setoff and acceptance of rent was not waiver |
| Whether discovery on prepayments and rent credits was improperly denied | Discovery into prepayments/credits was needed to create genuine issues of material fact | No genuine issue; summary judgment proper given lease terms and payment history | Court did not reach merits; appeal dismissed for lack of §25-1315 certification |
| Whether presuit 3-day notice under §25-21,221 was insufficiently served | Notice satisfied statutory requirements (mailed to guarantor; delivered to counsel) | Service/form of notice defective; contested factual issue | Court did not reach merits on appeal; district court had held notice proper but appellate review barred by jurisdictional defect |
| Whether guarantor (Marsh) could be subjected to restitution judgment though not in possession | TDP: guaranty makes Marsh liable for amounts and relief against Rule G supports restitution remedies | Marsh: guarantor not in possession; restitution against guarantor improper | Court did not reach merits; appellate jurisdiction lacking and appeal dismissed |
Key Cases Cited
- Bailey v. Lund-Ross Constructors Co., 265 Neb. 539 (2003) (§25-1315 requires express determination and direction before partial judgments are immediately appealable)
- R & D Properties v. Altech Constr. Co., 279 Neb. 74 (2009) (specific appeal statute controls over §25-1315 when applicable)
- Rafert v. Meyer, 298 Neb. 461 (2017) (certification under §25-1315 reserved for unusual cases; prevents piecemeal appeals)
- Federal Nat. Mortgage Assn. v. Marcuzzo, 289 Neb. 301 (2014) (discussion of FED procedure and related appealability principles)
- Cerny v. Todco Barricade Co., 273 Neb. 800 (2007) (analysis of finality and appealability in multi-claim actions)
- Becher v. Becher, 299 Neb. 206 (2018) (statutory interpretation principle: specific controls over general)