Clason v. LOL Investments

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
Steven E. Clason, appellant, v. LOL Investments,
LLC, a Nebraska limited liability company, and
Producers Livestock Credit Corporation,
a Delaware corporation, appellees.
___ N.W.3d ___
Filed March 1, 2024. 	No. S-23-223.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. 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.
4. Jurisdiction: Final Orders: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 25-1911 (Reissue 2016), for an appellate court to acquire juris-
diction of an appeal, the party must be appealing from a final order or
a judgment. Additionally, where implicated, an order must comply with
Neb. Rev. Stat. § 25-1315 (Reissue 2016).
5. ____: ____: ____. An appellate court lacks jurisdiction to entertain an
appeal unless it is from a final order or a judgment.
6. ____: ____: ____. When an order adjudicates fewer than all the claims
of all the parties, appellate jurisdiction cannot be created by voluntarily
dismissing, without prejudice, the claims on which the court has not
yet ruled.
Appeal from the District Court for Furnas County: Patrick
M. Heng, Judge. Appeal dismissed.
Terry K. Barber, of Barber & Barber, P.C., L.L.O., for
appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:35 AM CDT

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
Jeffrey M. Cox, of Dier, Osborn & Cox, P.C., L.L.O., for
appellee LOL Investments, LLC.
Jason B. Bottlinger and Lisa M. Epperson, of Bottlinger Law,
L.L.C., for appellee Producers Livestock Credit Corporation.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Steven E. Clason defaulted on an agricultural loan secured
by a deed of trust on farm property, and the property was
sold at a trustee’s sale. When Clason refused to surrender the
property to the purchaser, litigation ensued. This is Clason’s
third appeal; both of his prior appeals were dismissed for lack
of a final judgment or order. After the most recent remand,
several unresolved claims were voluntarily dismissed without
prejudice and Clason filed this appeal. Because the voluntary
dismissals without prejudice did not create the finality neces-
sary to confer appellate jurisdiction, we dismiss this appeal for
lack of a final judgment or order.
I. BACKGROUND
1. History and Prior Appeals
Clason had agricultural loans secured by a deed of trust
on farm real estate located in Furnas County, Nebraska.
LOL Investments, LLC (LOL), was the deed holder. Clason
defaulted on his debt payments, and the farm property was
sold to Producers Livestock Credit Corporation (PLCC) via a
trustee’s sale on October 24, 2019. Clason thereafter refused
to surrender the farm property to PLCC.
PLCC filed a forcible entry and detainer action against
Clason in the county court for Furnas County. While that action
was pending, Clason filed this quiet title action in the district
court in December 2019, prompting the county court to dismiss
the forcible entry and detainer action.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
Clason’s quiet title complaint named PLCC and LOL as
defendants and alleged the trustee’s sale was invalid and the
purported sale to PLCC was void. Clason sought an order
quieting title to the farm property in his name. In response,
PLCC counterclaimed to quiet title in its name and alleged
additional counterclaims for ejectment and unjust enrichment.
PLCC also alleged it was entitled to attorney fees pursuant
to Neb. Rev. Stat. § 25-824 (Reissue 2016) because Clason’s
quiet title action was frivolous and filed in bad faith.
During the pendency of the case, Clason and PLCC entered
into a stipulation that allowed Clason to harvest an alfalfa
crop planted on the farm property in return for cash rent.
Pursuant to that stipulation, the court ordered Clason and a
tenant to pay the agreed-upon rent into the court, which it
appears they did.
In May 2020, PLCC moved for partial summary judgment
on Clason’s claim to quiet title and on its counterclaim to
quiet title. Soon thereafter, LOL moved to dismiss Clason’s
complaint with prejudice for failure to state a claim and moved
for attorney fees pursuant to § 25-824. In June, a combined
evidentiary hearing was held on PLCC’s motion for partial
summary judgment and LOL’s motion to dismiss.
On August 12, 2020, the district court entered an order
holding that PLCC was entitled to summary judgment as a
matter of law; it dismissed Clason’s quiet title complaint with
prejudice and ordered that title to the farm property be qui-
eted in PLCC. The August 12 order also dismissed Clason’s
complaint against LOL for failure to state a claim upon which
relief could be granted. The order did not address PLCC’s
remaining counterclaims or the pending requests for attor-
ney fees.
(a) First Appeal (S-20-667)
On September 11, 2020, Clason appealed from the August
12 order. The Nebraska Court of Appeals dismissed that
appeal for lack of jurisdiction. We granted Clason’s petition

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
for further review and affirmed that dismissal in a published
opinion. 1 We noted that Neb. Rev. Stat. § 25-1315(1) (Reissue
2016) was implicated because the case involved multiple
claims and multiple parties, and the order from which Clason
appealed had not resolved all such claims because PLCC’s
counterclaims for ejectment and unjust enrichment remained
pending in the district court. We also noted the trial court had
not yet ruled on PLCC’s request for attorney fees, and we
explained that the lack of a ruling provided an independent
basis to conclude the August 12 order was not final because
“‘when a motion for attorney fees under § 25-824 is made
prior to the judgment, the judgment will not become final and
appealable until the court has ruled upon that motion.’” 2 We
therefore dismissed Clason’s appeal for lack of jurisdiction.
(b) Second Appeal (A-20-890)
During the pendency of the first appeal, the parties con-
tinued to litigate in the district court. 3 PLCC sought and was
granted leave to file an amended counterclaim retaining the
counterclaims for ejectment and unjust enrichment and adding
a counterclaim for forcible entry and detainer. The amended
counterclaim also requested attorney fees under § 25-824.
PLCC then moved for partial summary judgment on its
forcible entry and detainer counterclaim. In an order entered
December 11, 2020, the court granted PLCC’s motion, restored
exclusive possession of the farm property to PLCC, and
ordered Clason to “immediately and forthwith remove himself
and all his personal property from the real property.”
Clason appealed from the December 11, 2020, order, and
that appeal was dismissed by the Court of Appeals via a
1 Clason v. LOL Investments, 308 Neb. 904, 957 N.W.2d 877 (2021).
2 Id. at 914, 957 N.W.2d at 883.
3 See Murray v. Stine, 291 Neb. 125, 131, 864 N.W.2d 386, 391 (2015) (“[a]
notice of appeal from a nonappealable order does not render void for lack
of jurisdiction acts of the trial court taken in the interval between the filing
of the notice and the dismissal of the appeal by the appellate court”).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
minute entry dated April 27, 2021, stating: “Appeal dis-
missed for lack of jurisdiction under Neb. Ct. R. App. P.
§ 2-107(A)(2). Not all causes of action have been disposed
of. See Neb. Rev. Stat. § 25-1315(1). Furthermore, the order
is not final and appealable in light of the pending request for
attorney fees.”
2. Voluntary Dismissals
Without Prejudice
After the second appeal was dismissed, the cause was
remanded to the district court and there was no activity for
approximately 20 months. Then, on December 20, 2022,
PLCC filed a motion asking the court to enter an order
“directing the Clerk to pay over to PLCC all sums held for
payment of rent related to the Real Estate, which is believed
to be the sum of $32,400.00.” Clason filed a written objec-
tion to PLCC’s motion, arguing that he, and not PLCC, was
entitled to payment of the sums being held in trust by the
district court.
After holding a hearing on the motion, the court over-
ruled it in an order entered January 25, 2023, reasoning that
PLCC’s counterclaims were still unresolved and the “funds
paid into the Court for rents on property in dispute should not
be disbursed until the matter has reached [its] final conclu-
sion and any appeal time has expired.” The January 25 order
set a telephonic pretrial conference for February 21 “to set a
final hearing on all outstanding matters.” At that point, the
outstanding matters included (1) PLCC’s counterclaims for
unjust enrichment and ejectment and its request for attorney
fees under § 25-824, (2) LOL’s request for attorney fees
based on § 25-824, and (3) determination of entitlement to the
sums paid into the court as rent pursuant to the parties’ June
2020 stipulation.
No pretrial conference was held because, on January 30,
2023, PLCC filed a motion asking the court to dismiss, with-
out prejudice, all of PLCC’s unresolved counterclaims and

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
its pending request for attorney fees. The court sustained
PLCC’s motion in an order entered February 8, 2023. Then,
on February 17, LOL moved for an order dismissing, with-
out prejudice, its pending motion for attorney fees based on
§ 25-824. The court sustained LOL’s motion on February 17.
On March 18, 2023, Clason filed a notice of appeal. We
moved the appeal to our docket on our own motion.
II. ASSIGNMENTS OF ERROR
Clason assigns, restated and renumbered, that the district
court erred in (1) granting PLCC’s motion for partial summary
judgment on its quiet title counterclaim, (2) granting LOL’s
motion to dismiss the complaint for failure to state a claim,
(3) allowing PLCC to amend its counterclaim and move for
summary judgment on its counterclaim for forcible entry and
detainer during the pendency of the first appeal, (4) not post-
poning consideration of PLCC’s summary judgment motion
pursuant to Neb. Rev. Stat. § 25-1355 (Cum. Supp. 2022), and
(5) entering summary judgment in favor of PLCC on the forc-
ible entry and detainer counterclaim.
III. STANDARD OF REVIEW
[1] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law. 4
[2] An appellate court independently reviews questions of
law decided by a lower court. 5
IV. ANALYSIS
[3-5] 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. 6 Pursuant to Neb.
Rev. Stat. § 25-1911 (Reissue 2016), for an appellate court to
acquire jurisdiction of an appeal, the party must be appealing
4 Noland v. Yost, 315 Neb. 568, 998 N.W.2d 57 (2023).
5 Id.
6 See Mathiesen v. Kellogg, 315 Neb. 840, ___ N.W.2d ___ (2024).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
from a final order or a judgment. 7 Additionally, where impli-
cated, an order must comply with § 25-1315 and adjudicate all
claims of all parties, unless the trial court makes an express
determination that there is no just reason for delay of an appeal
of an order disposing of less that all claims or all parties. 8 An
appellate court lacks jurisdiction to entertain an appeal unless
it is from a final order or a judgment. 9
The trial court did not purport to enter a final judgment
in this case, and the appellate record contains no § 25-1315
certification of any order. But at oral argument before this
court, the parties generally took the position that once the
unresolved counterclaims and pending attorney fee requests
were voluntarily dismissed without prejudice, Clason could
appeal from the previously entered summary judgment orders.
We disagree.
[6] In Last Pass Aviation v. Western Co-op Co., 10 we held
that “[w]hen an order adjudicates fewer than all the claims
of all the parties, appellate jurisdiction cannot be created
by voluntarily dismissing, without prejudice, the claims on
which the court has not yet ruled.” In Last Pass Aviation, the
plaintiff filed an action seeking a declaratory judgment that a
covenant not to compete was unenforceable. The defendant
sought and received a temporary injunction preventing the
7 Id.
8 See id.
9 Shasta Linen Supply v. Applied Underwriters, 290 Neb. 640, 861 N.W.2d
425 (2015).
10 Last Pass Aviation v. Western Co-op Co., 296 Neb. 165, 171, 892 N.W.2d
108, 112 (2017). See, also, Addy v. Lopez, 295 Neb. 635, 890 N.W.2d
490 (2017) (holding plaintiff could not voluntarily dismiss sole cause
of action without prejudice and reserve right to appeal dismissal of one
of three defendants); Smith v. Lincoln Meadows Homeowners Assn., 267
Neb. 849, 678 N.W.2d 726 (2004) (holding plaintiff could not voluntarily
dismiss action without prejudice and simultaneously reserve right to
appeal order granting defendant partial summary judgment on damages
aspect of premises liability claim).

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
plaintiff from competing and then answered and alleged coun-
terclaims for breach of contract and related damages. After
a trial, the court entered a judgment finding the noncompete
agreement was void. The plaintiff then filed a motion seeking
damages and attorney fees related to the temporary injunction.
Before that motion was ruled upon, however, the defendant
appealed from the order finding the noncompete agreement
was void.
The Court of Appeals in Last Pass Aviation dismissed
that appeal for lack of jurisdiction, citing § 25-1315. After
remand, the parties filed a stipulated motion asking to dismiss,
without prejudice, the defendant’s unresolved counterclaims
and the plaintiff’s pending motion for attorney fees. The
stipulated motion expressly stated that the dismissed claims
“‘[would] be available for refiling if desired after the appeal
[was] concluded.’” 11 The district court granted the motion,
using similar language, after which the defendant filed a sec-
ond appeal.
We dismissed the second appeal, concluding it was not from
a final judgment. We reasoned:
Once the matter was back before the district court, the
parties did not seek rulings on the remaining counter-
claims or motion for damages and fees, nor did they
request an order directing final judgment under § 25-1315
on fewer than all of the claims or move to dismiss
the remaining claims with prejudice. Instead, the parties
stipulated to a voluntary dismissal, without prejudice, of
the pending counterclaims and motion for damages and
fees, with the stated intent to bring those matters back
before the court for ruling, depending on the outcome of
the appeal. Such a procedure does not create finality and
confer appellate jurisdiction. 12
11 Last Pass Aviation, supra note 10, 296 Neb. at 168, 892 N.W.2d at 110.
12 Id. at 170-71, 892 N.W.2d at 112.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
In Smith v. Lincoln Meadows Homeowners Assn., 13 we
explained why it undermines finality to allow an appeal after
the voluntary dismissal of unresolved claims without prejudice:
[W]ere we to conclude that appellate jurisdiction was
proper in this case, we would effectively abrogate our
long-established rules governing the finality and appeal-
ability of orders, as the policy against piecemeal litigation
and review would be severely weakened. When causes
of action or theories of recovery are dismissed without
prejudice, a plaintiff remains free to file another com-
plaint raising those same claims. . . . Thus, the litigation is
not finally over for all parties on all claims. . . . An order
lacks finality, and concerns about piecemeal litigation are
raised, unless a party’s remaining claims are finally aban-
doned, i.e., dismissed with prejudice.
In our prior cases applying the rule that appellate jurisdic-
tion cannot be created by voluntary dismissals without preju-
dice of unresolved claims, 14 the dismissing parties expressly
informed the trial court that they intended to pursue the dis-
missed claims after completing the appeal. Here, the parties’
motions did not recite their intent to pursue the issues after
completion of the appeal, but at oral argument before this
court both PLCC and LOL candidly acknowledged they dis-
missed their unresolved claims “without prejudice” because
they intended to bring them back before the court after the
conclusion of this appeal. They also acknowledged that the
district court has not yet determined entitlement to the rental
payments deposited with the clerk during the pendency of this
case, and the appellate record shows that $33,475 is still being
held by the court.
13 Smith, supra note 10, 267 Neb. at 855, 678 N.W.2d at 731-32 (internal
quotation marks omitted).
14 See, Last Pass Aviation, supra note 10; Addy, supra note 10; Smith, supra
note 10.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CLASON v. LOL INVESTMENTS
Cite as 316 Neb. 91
In Last Pass Aviation and Smith, we held that finality for
purposes of appeal cannot be created by dismissing unre-
solved claims without prejudice, and the same rule applies
here. When the matter was remanded to the district court after
the second appeal, there were counterclaims and requests for
attorney fees that remained unresolved. The trial court set
a pretrial conference so those claims could be adjudicated.
But instead of litigating the unresolved claims or dismissing
them with prejudice, PLCC and LOL voluntarily dismissed
them without prejudice, intending to bring them back before
the district court after Clason appealed from the summary
judgment rulings. This procedure did not end the litigation
between the parties or create the finality necessary to confer
appellate jurisdiction.
In addition to the finality problem resulting from the vol-
untary dismissals without prejudice, the trial court has not
yet resolved entitlement to the funds being held by the clerk.
This unresolved matter provides an independent basis for
concluding Clason has not appealed from a final judgment or
final order.
V. CONCLUSION
Because Clason has not appealed from a final judgment or
a final order, we lack appellate jurisdiction and must dismiss
this appeal. 15
Appeal dismissed.
15 See Smith, supra note 10, 267 Neb. at 856, 678 N.W.2d at 732 (“in
the absence of a judgment or a valid order finally disposing of a case,
an appellate court is without jurisdiction to act and must dismiss the
purported appeal”).