Sand Livestock Sys. v. Svoboda

its discretion in not allowing Hatcher’s testimony to be used as
rebuttal evidence. This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we find no error in the proceed-
ings before the district court and therefore affirm its judgment
in favor of appellees.
A ffirmed .
SAnd L iveStock S yStemS, inc ., A nebrASkA corporAtion ,
et AL., AppeLLAntS, And furnAS county fArmS,
A nebrASkA generAL pArtnerShip formerLy
known AS enterpriSe pArtnerS, AppeLLee ,
v . A my S vobodA et AL., AppeLLeeS.
756 N.W.2d 299
Filed September 16, 2008. 	No. A-06-1441.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Final Orders: Appeal and Error. A trial court’s decision to certify a final judg-
ment pursuant to Neb. Rev. Stat. § 25-1315(1) (Cum. Supp. 2006) is reviewed for
an abuse of discretion.
3. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to
sustain a verdict in a civil case, an appellate court considers the evidence most
favorably to the successful party and resolves evidential conflicts in favor of such
party, who is entitled to every reasonable inference deducible from the evidence.
4. Verdicts: Juries: Appeal and Error. A jury verdict will not be set aside unless
clearly wrong, and it is sufficient if any competent evidence is presented to the
jury upon which it could find for the successful party.
5. Jury Instructions: Judgments: Appeal and Error. Whether a jury instruction
given by a trial court is correct is a question of law. When reviewing questions of
law, an appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
6. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues presented
by a case.
7. Final Orders: Appeal and Error. Certification of a final judgment must be
reserved for the unusual case in which the costs and risks of multiplying the
number of proceedings and of overcrowding the appellate docket are outbalanced
by pressing needs of the litigants for an early and separate judgment as to some
claims or parties.
28 	17 NeBRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

8. Judges: Final Orders: Parties. The power Neb. Rev. Stat. § 25-1315(1) (Cum.
Supp. 2006) confers upon the trial judge should only be used in the infrequent
harsh case as an instrument for the improved administration of justice, based on
the likelihood of injustice or hardship to the parties of a delay in entering a final
judgment as to part of the case.
9. Courts: Final Orders. When a trial court concludes that entry of judgment under
Neb. Rev. Stat. § 25-1315(1) (Cum. Supp. 2006) is appropriate, it should ordinar-
ily make specific findings setting forth the reasons for its order.
10. Courts: Final Orders: Appeal and Error. A trial court considering certification
of a final judgment should weigh factors such as (1) the relationship between the
adjudicated and unadjudicated claims; (2) the possibility that the need for review
might or might not be mooted by future developments in the trial court; (3) the
possibility that the reviewing court might be obliged to consider the same issue a
second time; (4) the presence or absence of a claim or counterclaim which could
result in setoff against the judgment sought to be made final; and (5) miscel-
laneous factors such as delay, economic and solvency considerations, shortening
the time of trial, frivolity of competing claims, expense, and the like.
11. ____: ____: ____. As a starting point for considering certification of a final judg-
ment, it is appropriate for the trial court to consider whether the claims under
review are separable from the others remaining to be adjudicated and whether the
nature of the claims already determined was such that no appellate court would
ever have to decide the same issues more than once even if there were subse-
quent appeals.
12. Claims: Courts: Appeal and Error. The potential that claims remaining in the
trial court could obviate claims in the appellate court is a consideration against
immediate appealability.
13. Libel and Slander: Words and Phrases. Libel is defamation where the defama-
tory words are written or printed.
14. Libel and Slander: Negligence. A claim of defamation requires (1) a false and
defamatory statement concerning the plaintiff, (2) an unprivileged publication to
a third party, (3) fault amounting to at least negligence on the part of the pub-
lisher, and (4) either actionability of the statement irrespective of special harm or
the existence of special harm caused by the publication.
15. Juries: Evidence. It is for the jury, as trier of the facts, to resolve conflicts in the
evidence and to determine the weight and credibility to be given to the testimony
of the witnesses.
16. Jury Instructions: Appeal and Error. Failure to object to a jury instruction after
it has been submitted to counsel for review precludes raising an objection on
appeal absent plain error.
17. Appeal and Error. plain error may be asserted for the first time on appeal or be
noted by an appellate court on its own motion.
18. Appeal and Error: Words and Phrases. plain error exists where there is an
error, plainly evident from the record but not complained of at trial, which preju-
dicially affects a substantial right of a litigant and is of such a nature that to leave
it uncorrected would cause a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process.
SANd LIveSTOCk SyS. v. SvOBOdA 	29
Cite as 17 Neb. App. 28

19. Jury Instructions: Pleadings: Evidence. A trial court, whether requested to do
so or not, has a duty to instruct the jury on issues presented by the pleadings and
the evidence.
20. Summary Judgment. The overruling of a motion for summary judgment does
not decide any issue of fact or proposition of law affecting the subject matter of
the litigation, but merely indicates that the court was not convinced by the record
that there was not a genuine issue as to any material fact or that the party offering
the motion was entitled to judgment as a matter of law.
21. Actions: Proof. In a malicious prosecution case, the necessary elements for the
plaintiff to establish are (1) the commencement or prosecution of the proceeding
against him or her; (2) its legal causation by the present defendant; (3) its bona
fide termination in favor of the present plaintiff; (4) the absence of probable
cause for such proceeding; (5) the presence of malice therein; and (6) damage,
conforming to legal standards, resulting to the plaintiff.
22. Probable Cause: Words and Phrases. probable cause is a reasonable ground of
suspicion, supported by facts and circumstances of such a nature as to justify a
cautious and prudent person in believing that the accused was guilty.
23. Probable Cause: Evidence: Juries. Whether facts and circumstances established
by uncontradicted evidence amount to probable cause for a criminal prosecution
is a question of law for the court, and not an issue of fact for the jury.
24. Actions: Courts: Verdicts: Juries: Damages. Under Neb. Rev. Stat.
§ 25-21,243(1) (Reissue 1995), a trial court must first determine as a matter
of law whether the action involving public petition and participation was com-
menced or continued without a substantial basis in fact and law and could not be
supported by a substantial argument for the extension, modification, or reversal
of existing law. If the court determines that a substantial basis did exist, then the
court should direct a verdict against the defendant who maintains a claim against
such action. If the court determines that a substantial basis did not exist, then
the jury (unless a jury is waived) should be instructed to determine whether the
action involving public petition and participation was commenced or continued
for the purpose of harassing, intimidating, punishing, or otherwise maliciously
inhibiting the free exercise of petition, speech, or association rights. In addition,
the jury should decide the compensatory damages, if any, to be awarded under
this portion of the statute.
25. Appeal and Error. An appellate court is not obligated to engage in an analysis
which is not needed to adjudicate the controversy before it.
Appeal from the district Court for keith County: donALd
e. rowLAndS, Judge. Affirmed in part, and in part reversed and
remanded for a new trial.
John F. Recknor and Randall Wertz, of Recknor, Williams &
Wertz, for appellant Sand Livestock Systems.
Clark J. Grant, of Grant & Grant, for appellants Sand and
Cumberland.
30 	17 NeBRASkA AppeLLATe RepORTS

John 	C. 	Brownrigg, 	Thomas 	J. 	Culhane, 	and 	Sara A.
Lamme, of erickson & Sederstrom, p.C., for appellee Furnas
County Farms.
Charles F. Speer, of Speer Law Firm, p.A., Richard H.
Middleton, Jr., of The Middleton Firm, and patricia A. knapp
for appellees Svoboda, Hamilton, and Fortkamp.
Sean T. McAllister for amicus curiae SLApp Resource
Center.
S ieverS, moore, and cASSeL, Judges.
moore, Judge.
INTROdUCTION
Sand Livestock Systems, Inc. (Sand Livestock), Furnas
County Farms (FCF), Charles W. Sand, Jr., and Timothy A.
Cumberland filed suit in the district court for keith County
against Amy Svoboda, Char Hamilton, duane Fortkamp, and
Area Citizens for Resources and environmental Concerns
(ACReS), bringing actions for libel and false light invasion of
privacy (defamation suit). Svoboda, Hamilton, and Fortkamp
answered and brought a counterclaim against Sand Livestock,
FCF, Sand, and Cumberland, alleging a violation of Neb. Rev.
Stat. §§ 25-21,241 to 25-21,246 (Reissue 1995) (Nebraska’s
statutory provisions concerning strategic lawsuits against pub-
lic participation, or “SLApp’s”). ACReS also brought a coun-
terclaim. Following a jury trial in which ACReS did not
participate, the jury found in favor of Svoboda, Hamilton, and
Fortkamp on the libel and false light actions and awarded dam-
ages totaling $900,000 on their anti-SLApp counterclaim.
Sand 	Livestock 	has 	appealed, 	and 	FCF, 	Sand, 	and
Cumberland have joined in the appeal. Throughout this opin-
ion, we have referred collectively to Sand Livestock, FCF,
Sand, and Cumberland as “the Appellants” and to Svoboda,
Hamilton, Fortkamp, and ACReS as “the Appellees.” Because
the jury instructions given by the district court allowed the
jury to determine a question of law with respect to the coun-
terclaim, we find plain error, and we reverse, and remand for
a new trial on the counterclaim between Svoboda, Hamilton,
SANd LIveSTOCk SyS. v. SvOBOdA 	31
Cite as 17 Neb. App. 28

and Fortkamp and the Appellants. We affirm the portion of the
judgment which found against the Appellants on the defama-
tion suit.
BACkGROUNd
Parties.
Sand Livestock is a Nebraska corporation in the business
of constructing, among other things, hog confinement facili-
ties. Sand Livestock has never owned any hogs or managed
any swine operations. Sand and Cumberland are shareholders
in Sand Livestock, and in 1999, Sand was the president of
Sand Livestock.
FCF is a general partnership, which owns various swine
operations. Sand and Cumberland are partners in FCF.
ACReS is an unincorporated organization of individuals
in Hayes County, Nebraska, who were concerned about the
environmental effects of having large hog lagoons located in
that county. Hamilton and Fortkamp were the copresidents of
ACReS and, as such, coordinated the group’s activities and
made certain decisions for the group. Svoboda is an attorney
who was hired by ACReS to assist with local zoning matters
and aid in preparing a public comment to a permit applica-
tion received by the Nebraska department of environmental
Quality (deQ).
Dispute.
The dispute at issue in this appeal arose following an appli-
cation by FCF and Sand Livestock for a permit to construct a
livestock waste control facility in Hayes County. At the time of
FCF and Sand Livestock’s application, Nebraska’s Livestock
Waste Management Act required the deQ to issue a notice
providing an opportunity for any interested person to submit
written comments on any application submitted to the deQ
pursuant to Neb. Rev. Stat. § 54-2409 (Reissue 1998) (since
repealed). See Neb. Rev. Stat. § 54-2411 (Reissue 1998) (since
transferred in part to Neb. Rev. Stat. § 54-2433 (Cum. Supp.
2006)). The deQ issued notice of the public comment period
in this case by publishing an advertisement in the Hayes
County newspaper.
32 	17 NeBRASkA AppeLLATe RepORTS

In response to the notice, Hamilton, on behalf of ACReS,
contacted Svoboda to investigate and help prepare a public
comment letter to the deQ (the deQ letter). The deQ letter
consisted of a cover letter, dated November 10, 2000; “part 1,”
the technical comments prepared by an environmental services
firm; and “part 2,” the comments prepared by Svoboda that
are at issue in this case. The cover letter to the deQ letter
bears Hamilton’s and Fortkamp’s signatures as copresidents
for ACReS. The cover letter is addressed to the director of
the deQ and states, “please find enclosed our comments on
the [FCF] (Sand Livestock . . .) Application for a permit to
Construct a Livestock Waste Control Facility . . . in Hayes
County, Nebraska.” The cover letter goes on to state that the
second part of the comments “contains our comments relat-
ing to [FCF’s] suitability to be a permit holder prepared by
our attorney . . . Svoboda.” In the interest of brevity, we have
not reproduced the contents of part 2 of the deQ letter in this
opinion, although we have reviewed that portion of the letter
carefully in conjunction with our review of the record as a
whole and the applicable assignments of error.
On November 29, 2000, a demand for a retraction of part
2 of the deQ letter was sent by counsel on behalf of FCF,
Sand, and Cumberland to Fortkamp, Hamilton, and Svoboda.
Svoboda replied in an undated letter, in which she stated,
[I]f there are aspects of our statements that could be bet-
ter stated we would be happy to correct them if you could
inform us specifically of them. Or if you would like to
set up a meeting with us and [the] deQ to “correct the
record” we would be happy to attend.
FCF and Sand Livestock received the permit from the deQ,
but did not build the facility in Hayes County due to zoning
regulations that had been implemented in the meantime.
Initial Pleadings.
The Appellants filed an amended petition in this case on
March 6, 2001, bringing actions against the Appellees for libel
and false light invasion of privacy arising out of allegedly
false and defamatory statements contained in the deQ letter
SANd LIveSTOCk SyS. v. SvOBOdA 	33
Cite as 17 Neb. App. 28

(the defamation suit). We note that the false light action was
brought by Sand and Cumberland only.
On 	April 	9, 	2001, 	Svoboda, 	Hamilton, 	and 	Fortkamp
answered and asserted a counterclaim based upon an alleged
violation of Nebraska’s anti-SLApp statutes (the anti-SLApp
counterclaim). Specifically, Svoboda, Hamilton, and Fortkamp
asserted that the defamation suit was filed for the purpose of
harassing, intimidating, punishing, and maliciously inhibiting
the free exercise of the Appellees’ right to petition. Svoboda,
Hamilton, and Fortkamp asked for attorney fees and costs pur-
suant to § 25-21,243, as well as compensatory damages.
The record shows that a counterclaim was also filed by
ACReS but does not reveal the exact nature of that counter-
claim. We have searched the voluminous transcript from both
the first appeal of this case and the present appeal and have
been unable to locate the actual counterclaim filed by ACReS.
Summary Judgment Proceedings.
The parties filed various motions for summary judgment
and partial summary judgment. In an order filed September
14, 2005, the district court denied the various motions as to
the defamation suit and the anti-SLApp counterclaim, find-
ing that genuine issues of material fact remained for trial on
all claims.
Dismissal of ACRES.
On October 19, 2005, the Appellants filed offers to confess
judgment in favor of the Appellees. Just prior to the start of
trial on October 25, the Appellants agreed to dismiss ACReS
as a party defendant. ACReS’ attorney advised the court that
ACReS had accepted the Appellants’ offer to confess judg-
ment. One of the Appellants’ attorneys advised the court that
the Appellants’ offer was contingent upon acceptance by all of
the Appellees. The court agreed that “this issue will be litigated
separately at a later time” and excused ACReS’ attorney from
participating in the trial proceedings.
Trial.
A jury trial was held on the litigation between the Appellants
and Svoboda, Hamilton, and Fortkamp on October 25 through
34 	17 NeBRASkA AppeLLATe RepORTS

28, 2005. On October 28, the jury returned verdicts on the
defamation suit in favor of Svoboda, Hamilton, and Fortkamp
against each of the Appellants. The jury also found in favor
of Svoboda, Hamilton, and Fortkamp on their anti-SLApp
counterclaim, awarding damages totaling $900,000 plus court
costs and attorney fees (damages of $75,000 to each par-
ticipating defendant against each Appellant). On November
2, the district court entered judgment in accordance with the
jury’s verdicts.
Posttrial Proceedings.
The Appellants filed various posttrial motions, including
several motions for new trial. The district court entered an
order on december 16, 2005, ruling on the pending post-
trial motions. With regard to the Appellants’ motions, the
court reviewed the amount of damages awarded against the
Appellants on the anti-SLApp counterclaim and stated, “The
jury 	obviously 	determined 	that 	[Svoboda, 	Hamilton, 	and
Fortkamp each] suffered a sizeable and equal amount of dam-
age.” The court stated further:
Although I agree with counsel for the [Appellants] that
there was a dearth of evidence which was presented to
the jury as to any economic damages which [Svoboda,
Hamilton, and Fortkamp] sustained, there was substantial
evidence adduced through the testimony of [Svoboda,
Hamilton, and Fortkamp] and members of their families
that they had suffered significant mental suffering, humil-
iation, and injury to reputation or character as a proximate
result of the actions of the [Appellants]. Based upon my
prior experience in numerous cases wherein juries have
awarded substantial damages for pain, suffering and/or
emotional distress, I cannot reasonably conclude that the
verdict of the jury in this case shocks my conscience.
Similarly, I cannot rationally ascertain the extent that any
verdict should be reduced even if I were to believe that
it was excessive. Therefore, I cannot properly require
a remittitur.
The 	court 	then 	denied 	each 	of 	the 	Appellants’ posttrial
motions.
SANd LIveSTOCk SyS. v. SvOBOdA 	35
Cite as 17 Neb. App. 28

First Appeal.
On January 12, 2006, Sand Livestock filed a notice of its
intention to appeal the district court’s order of december
16, 	2005, 	which 	appeal 	was 	designated 	as 	case 	No.
A-06-082. Notices of appeal were also filed by FCF, Sand, and
Cumberland.
On January 17, 2006, ACReS filed a motion for entry
of judgment. On January 18, the district court on its own
motion entered an order staying all proceedings below until
further order, including a hearing on ACReS’ motion for entry
of judgment.
Because ACReS’ counterclaim was still unresolved at the
time of the appeal in case No. A-06-082, this court granted
ACReS’ motion for summary dismissal, citing Neb. Rev. Stat.
§ 25-1315(1) (Cum. Supp. 2006). The mandate summarily dis-
missing the appeal was issued on July 25, 2006.
Proceedings on Remand.
On November 20, 2006, the district court entered an order
ruling on various pending matters, including ACReS’ motion
for entry of judgment. As to ACReS’ motion, the district court
found that there was never a meeting of the minds between
counsel for the Appellants and counsel for the Appellees. The
court found that the only reasonable interpretation of the offers
to confess judgment was that they were lump-sum offers by
the Appellants in the sums of $25,000 and $20,000, which
were intended to represent a complete settlement with all the
Appellees, and that they could not be accepted by a single
appellee. Accordingly, the court denied ACReS’ motion and
indicated that, since the case was still at issue between the
Appellants and ACReS on the counterclaim filed by ACReS, a
pretrial conference should be scheduled.
The district court then recognized that there were multiple
parties involved in the litigation and, pursuant to § 25-1315(1),
expressly determined that there was no just reason to delay
the entry of a final judgment in the litigation between the
Appellants 	and 	Svoboda, 	Hamilton, 	and 	Fortkamp. 	The
court stated:
36 	17 NeBRASkA AppeLLATe RepORTS

Therefore, the jury verdicts rendered in this case on
October 28, 2005, together with all other orders involv-
ing the [Appellants] and . . . Svoboda, Hamilton and
Fortkamp, including but not limited to the [december 16,
2005, order], as well as this [order], shall be deemed final
and subject to appeal, notwithstanding the fact that the
claims or the rights and liabilities of the [Appellants] and
. . . ACReS, remain for future determination.
Second Appeal.
On december 19, 2006, Sand Livestock filed notice of its
intent to appeal the district court’s order of November 20, 2006,
which appeal has been designated as case No. A-06-1441. A
second notice of appeal was filed by FCF, and FCF has filed
a brief as “Appellee and Cross-Appellant.” However, FCF has
not filed a cross-appeal in this matter. See Neb. Ct. R. App.
p. §§ 2-101(C), 2-101(e), and 2-109(d)(4). FCF is therefore
technically an appellee only. Sand and Cumberland joined in
the appeal filed by Sand Livestock and the “cross-appeal” filed
by FCF.
On June 29, 2007, the Nebraska Supreme Court decided
Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877
(2007), setting forth more stringent requirements for certifica-
tion of final judgments pursuant to § 25-1315(1).
ACReS filed a stipulated motion to withdraw from the
appeal in case No. A-06-1441 on July 9, 2007, stating that it
had been dismissed as a defendant from the case prior to trial,
that it had settled its counterclaims with the Appellants, and
that an order dismissing its counterclaims was entered by the
district court on May 25, 2007. The stipulation was allowed,
and the appeal was dismissed as to ACReS only.
This court issued an order to show cause on September 27,
2007, asking the parties why the matter should not be dis-
missed under Cerny v. Todco Barricade Co., supra. On October
10, FCF responded to the order by way of a supplemental brief,
in which all other remaining parties have joined, urging this
court to retain jurisdiction. On October 29, we issued a minute
entry, allowing the appeal to proceed but reserving the issue of
jurisdiction for determination after oral argument.
SANd LIveSTOCk SyS. v. SvOBOdA 	37
Cite as 17 Neb. App. 28

ASSIGNMeNTS OF eRROR
Because of the similarities between and the overlap of the
errors assigned by Sand Livestock on appeal and FCF in its
brief on “cross-appeal,” which assignments of error are joined
in by Sand and Cumberland, we have reordered and restated
those errors as follows: The Appellants assert (1) that the jury’s
verdict against the Appellants in the defamation suit was not
supported by the evidence, (2) that the district court committed
plain error in instructing the jury concerning the anti-SLApp
counterclaim and in submitting to the jury any issues associ-
ated with the counterclaim, (3) that the evidence at trial was
insufficient to support the jury’s award of damages on the
anti-SLApp counterclaim, (4) that the district court erred in
not granting the Appellants’ motion for new trial, and (5) that
the district court erred in not granting the Appellants’ motion
for remittitur.
STANdARd OF RevIeW
[1,2] A jurisdictional question which does not involve a
factual dispute is determined by an appellate court as a matter
of law. Cerny v. Todco Barricade Co., supra. A trial court’s
decision to certify a final judgment pursuant to § 25-1315(1) is
reviewed for an abuse of discretion. Cerny v. Todco Barricade
Co., supra.
[3,4] In determining the sufficiency of the evidence to sus-
tain a verdict in a civil case, an appellate court considers the
evidence most favorably to the successful party and resolves
evidential conflicts in favor of such party, who is entitled to
every reasonable inference deducible from the evidence. Orduna
v. Total Constr. Servs., 271 Neb. 557, 713 N.W.2d 471 (2006).
A jury verdict will not be set aside unless clearly wrong, and it
is sufficient if any competent evidence is presented to the jury
upon which it could find for the successful party. Id.
[5] Whether a jury instruction given by a trial court is cor-
rect is a question of law. Karel v. Nebraska Health Sys., 274
Neb. 175, 738 N.W.2d 831 (2007). When reviewing questions
of law, an appellate court has an obligation to resolve the
questions independently of the conclusion reached by the trial
court. Id.
38 	17 NeBRASkA AppeLLATe RepORTS

ANALySIS
Jurisdiction.
[6] Before reaching the legal issues presented for review, it
is the duty of an appellate court to settle jurisdictional issues
presented by a case. Cerny v. Todco Barricade Co., 273 Neb.
800, 733 N.W.2d 877 (2007). In this case, we must first con-
sider, as did the Nebraska Supreme Court in Cerny and this
court in Murphy v. Brown, 15 Neb. App. 914, 738 N.W.2d
466 (2007), whether the district court abused its discretion in
making a certification under § 25-1315(1). The district court
did not explain the reasoning for its § 25-1315(1) determina-
tion, which of course was made prior to Cerny, and we again
take this opportunity to encourage trial court judges to follow
the direction in Cerny to make specific findings rather than
just reciting the statutory language. In this case, as we did in
Murphy, we examine the facts in light of the factors summa-
rized in Cerny.
[7-9] The Cerny court determined that certification of a final
judgment must be reserved for the unusual case in which the
costs and risks of multiplying the number of proceedings and
of overcrowding the appellate docket are outbalanced by press-
ing needs of the litigants for an early and separate judgment as
to some claims or parties. Cerny v. Todco Barricade Co., supra.
The power § 25-1315(1) confers upon the trial judge should
only be used in the infrequent harsh case as an instrument for
the improved administration of justice, based on the likelihood
of injustice or hardship to the parties of a delay in entering a
final judgment as to part of the case. Cerny v. Todco Barricade
Co., supra. When a trial court concludes that entry of judgment
under § 25-1315(1) is appropriate, it should ordinarily make
specific findings setting forth the reasons for its order. Cerny v.
Todco Barricade Co., supra.
[10-12] The Cerny court stated that a trial court considering
certification of a final judgment should weigh factors such as
(1) the relationship between the adjudicated and unadjudicated
claims; (2) the possibility that the need for review might or
might not be mooted by future developments in the trial court;
(3) the possibility that the reviewing court might be obliged
to consider the same issue a second time; (4) the presence
SANd LIveSTOCk SyS. v. SvOBOdA 	39
Cite as 17 Neb. App. 28

or absence of a claim or counterclaim which could result in
setoff against the judgment sought to be made final; and (5)
miscellaneous factors such as delay, economic and solvency
considerations, shortening the time of trial, frivolity of compet-
ing claims, expense, and the like. Cerny v. Todco Barricade
Co., supra. As a starting point for considering certification of
a final judgment, it is appropriate for the trial court to consider
whether the claims under review are separable from the oth-
ers remaining to be adjudicated and whether the nature of the
claims already determined was such that no appellate court
would ever have to decide the same issues more than once
even if there were subsequent appeals. Id. The potential that
claims remaining in the trial court could obviate claims in the
appellate court is a consideration against immediate appeal-
ability. Id.
In its supplemental brief, FCF argues that Cerny v. Todco
Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007), and
Murphy v. Brown, 15 Neb. App. 914, 738 N.W.2d 466 (2007),
do not compel dismissal of the present appeal, but, rather,
allow the reviewing court to examine the facts in light of the
various factors cited, which is what FCF is urging us to do.
FCF suggests that this case qualifies as the “‘“unusual case”
in which potential hardship to the litigants outweighs the
strong policy against piecemeal appeals.’” Supplemental brief
for appellee Furnas County Farms at 11. FCF distinguishes
this case factually from Cerny and our subsequent case of
Murphy, which both involved certification after orders grant-
ing summary judgment. Specifically, Cerny involved a partial
summary judgment against the plaintiffs on all but one of
their claims, reserving the remaining claim for trial. Murphy
involved the grant of summary judgment in favor of one
defendant, but leaving the claim against the remaining defend-
ant for later disposition.
FCF argues that in this case, all of the claims between all
of the parties to this appeal were adjudicated by the judgment
following the jury trial and nothing remains to be done in the
district court that would affect the parties’ rights and liabilities
vis-a-vis one another. Because there is a full-blown trial record
in this case, as opposed to summary judgment records as were
40 	17 NeBRASkA AppeLLATe RepORTS

involved in Cerny and Murphy, FCF argues that there is no
risk in this case that the trial court might wish to reconsider its
dismissal of certain claims on the complete fact record devel-
oped at trial. FCF further argues that there is no conceivable
way any further action by the trial court in connection with
the ACReS issues, which were still pending at the time of the
certification, could moot any of the issues on the merits that
are raised in this appeal, and that conversely, there is nothing
that the outcome of this appeal could do to affect the rights
and liabilities between the appellants and ACReS. Finally,
FCF argues that delaying this appeal further would work an
unusual hardship on the parties, because the lawsuit was pend-
ing over 4 years at the time of trial, judgment was rendered in
November 2005, and in November 2006, the district court cor-
rectly certified that the judgment was a final order for purposes
of § 25-1315(1).
We are mindful that our review concerns whether the dis-
trict court abused its discretion in making the certification in
November 2006 based on the facts known to it at the time;
however, we are also mindful of the fact that ACReS has
since been dismissed as a defendant in the underlying litiga-
tion and that an order dismissing ACReS’ counterclaim has
been entered. We agree that Cerny and Murphy do not require
automatic dismissal in the absence of detailed findings by
the trial court and that in those cases, the appellate courts
have reviewed the record to determine whether the trial court
abused its discretion in certifying judgments as final under
§ 25-1315(1). We conclude that given the length of time the
litigation had been pending and the fact that a full jury trial
had been brought to conclusion regarding the issues between
the Appellants and Svoboda, Hamilton, and Fortkamp, this is
the unusual case in which the costs and risks of multiplying
the number of proceedings and of overcrowding the appellate
docket are outbalanced by pressing needs of the litigants for
an early and separate judgment as to some claims or parties.
See, Cerny v. Todco Barricade Co., supra; Murphy v. Brown,
supra. Accordingly, the district court did not abuse its discre-
tion in making the certification under § 25-1315(1), and we
have jurisdiction to consider the merits of this appeal. Thus,
SANd LIveSTOCk SyS. v. SvOBOdA 	41
Cite as 17 Neb. App. 28

we first consider the Appellants’ assignment of error relating to
the defamation suit and then consider the assignments of error
relating to the anti-SLApp counterclaim.
Sufficiency of Evidence in Defamation Suit.
[13,14] The Appellants assert that the jury’s verdict against
them in the defamation suit was not supported by the evidence.
The Appellants brought claims for libel and false light inva-
sion of privacy. “Libel is defamation where the defamatory
words are written or printed . . . .” 50 Am. Jur. 2d Libel and
Slander § 9 at 379 (2006). A claim of defamation requires (1) a
false and defamatory statement concerning the plaintiff, (2) an
unprivileged publication to a third party, (3) fault amounting to
at least negligence on the part of the publisher, and (4) either
actionability of the statement irrespective of special harm or
the existence of special harm caused by the publication. Nolan
v. Campbell, 13 Neb. App. 212, 690 N.W.2d 638 (2004). The
elements of a false light claim are found in Neb. Rev. Stat.
§ 20-204 (Reissue 1997), which provides:
Any person, firm, or corporation which gives public-
ity to a matter concerning a natural person that places
that person before the public in a false light is subject to
liability for invasion of privacy, if:
(1) The false light in which the other was placed would
be highly offensive to a reasonable person; and
(2) The actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the
false light in which the other would be placed.
We note that the jury was instructed that the false light claim
applied to Sand and Cumberland only.
[15] It is for the jury, as trier of the facts, to resolve conflicts
in the evidence and to determine the weight and credibility to
be given to the testimony of the witnesses. Orduna v. Total
Constr. Servs., 271 Neb. 557, 713 N.W.2d 471 (2006). In con-
sidering the defamation suit, the jury clearly credited and gave
greater weight to the evidence presented by the Appellees. We
have reviewed the vast amount of evidence presented at trial
by the parties, although we do not set forth the details of that
evidence here in the interest of brevity. In our review, we have
42 	17 NeBRASkA AppeLLATe RepORTS

considered the evidence most favorably to the Appellees and
have resolved evidential conflicts in their favor as we must. See
id. Because the record reveals competent evidence upon which
the jury could have found for the Appellees, the verdict is suf-
ficient, and we cannot say that it was clearly wrong.
What Are SLAPP’s?
Before proceeding to address the merits of the Appellants’
remaining assignments of error on appeal, we first provide a
brief background on the origin and nature of anti-SLApp legis-
lation and then a summary of Nebraska’s anti-SLApp statutes.
The following commentary provides a succinct statement as
to the nature and conceptual background of SLApp’s:
SLApp is the acronym for “Strategic Lawsuits Against
public policy,” [which have been] described . . . in the
literature as intimidation lawsuits against citizen advo-
cates . . . . [I]t has become generally accepted that there
is a large and growing constellation of lawsuits that are
fashioned as traditional lawsuits for tortious misconduct
but are in actuality thinly-disguised efforts to abuse the
litigation process in order to silence citizen discussions on
issues affecting the public well-being.
The purpose of the SLApp, it is asserted, is distinctly
not to succeed on the merits, but to so intimidate the
private citizen (or even the government official) that
citizen activity ceases because the expense, risk and anx-
iety engendered by the process of litigating a SLApp
is too great. The SLApp plaintiff does not intend—nor
often succeed—on the merits, but achieves the intended
result essentially by abusing the litigation process for an
improper purpose or engaging in “frivolous” litigation.
SLApp-back procedures, actions and statutory actions
arising out of state public participation or anti-SLApp
statutes seek to cure this abuse in addition to special pro-
cedural mechanisms developed by individual courts.
SLApps are not simply matters of private injustices.
United States Supreme Court decisional law . . . makes it
explicitly clear that when such conduct exists, paramount
public law issues of freedom to exercise First Amendment
SANd LIveSTOCk SyS. v. SvOBOdA 	43
Cite as 17 Neb. App. 28

right of expression and right to petition the government
for redress are directly involved.
While many federal and state courts have now acknowl-
edged SLApps and the need to combat them under fed-
eral and state constitutional principles, variations locally
occur in the procedural mechanics and remedies applied
to cure them.
22 C.O.A.2d 317, § 2 at 322 (2003). See, also, 2 Rodney A.
Smolla, Law of defamation § 9:107 (2d ed. 2008); California
Anti-SLApp project, What are SLApps?, http://www.casp.net/
slapps/mengen.html (last visited April 21, 2008).
Nebraska’s statutory scheme concerning public petition
and participation was enacted in 1994. See §§ 25-21,241
to 25-21,246. In enacting these sections, the Legislature
determined that “[i]t is the policy of the state that the
constitutional 	rights 	of 	citizens 	and 	organizations 	to 	be
involved and participate freely in the process of govern-
ment must be encouraged and safeguarded with great dili-
gence.” § 25-21,241(1). The Legislature further determined
that “[t]he threat of [SLApp’s], personal liability, and bur-
densome litigation costs significantly chills and diminishes
citizen participation in government, voluntary public service,
and the exercise of these important constitutional rights.”
§ 25-21,241(3). The Legislature also determined that the
purpose of §§ 25-21,241 to 25-21,246 is “to strike a bal-
ance between the rights of persons to file lawsuits for injury
and the constitutional rights of persons to petition, speech,
and association,” among other things, and “to protect and
encourage public participation in government,” “to establish
an efficient process for identification and adjudication of
[SLApp’s],” and “to provide for costs, attorney’s fees, and
actual damages.” § 25-21,241(4).
Nebraska limits coverage of its anti-SLApp statutes by
the identity of the “slapper.” Nebraska defines an “[a]ction
involving public petition and participation” as “an action,
claim, cross-claim, or counterclaim for damages that is brought
by a public applicant or permittee and is materially related
to any efforts of the defendant to report on, comment on,
44 	17 NeBRASkA AppeLLATe RepORTS

rule on, challenge, or oppose the application or permission.”
§ 25-21,242(1). Other states limiting the protection of their
anti-SLApp statutes to situations where the “slapper” is an
applicant or permittee seeking approval before a government
agency include New york and delaware. See, N.y. Civ. Rights
§§ 70-a and 76-a (Mckinney Cum. Supp. 2008); N.y.C.p.L.R.
§§ 3211(g) and 3212(h) (Mckinney 2005); del. Code Ann. tit.
10, §§ 8136 to 8138 (1999).
The provision of Nebraska’s anti-SLApp statutes which
is most relevant to our consideration in the present appeal is
§ 25-21,243(1). Section 25-21,243(1) details when a defend-
ant may bring an anti-SLApp counterclaim, and what dam-
ages may be recovered in such a counterclaim, and provides
as follows:
A defendant in an action involving public petition and
participation may maintain an action, claim, cross-claim,
or counterclaim to recover damages, including costs and
attorney’s fees, from any person who commenced or
continued such action. Costs and attorney’s fees may be
recovered upon a demonstration that the action involv-
ing public petition and participation was commenced or
continued without a substantial basis in fact and law and
could not be supported by a substantial argument for the
extension, modification, or reversal of existing law. Other
compensatory damages may only be recovered upon an
additional demonstration that the action involving public
petition and participation was commenced or continued
for the purpose of harassing, intimidating, punishing, or
otherwise maliciously inhibiting the free exercise of peti-
tion, speech, or association rights.
We also note §§ 25-21,245 and 25-21,246, which provide for
expedited review of motions to dismiss and motions for sum-
mary judgment, respectively, in actions involving public peti-
tion and participation, which may be defeated upon a showing
by the party responding to the motion that the original SLApp
action “has a substantial basis in law [fact and law in the case
of a motion for summary judgment] or is supported by a sub-
stantial argument for an extension, modification, or reversal of
existing law.”
SANd LIveSTOCk SyS. v. SvOBOdA 	45
Cite as 17 Neb. App. 28

Submission of Counterclaim to Jury.
[16-19] The Appellants assert that the district court com-
mitted plain error in instructing the jury concerning the anti-
SLApp counterclaim and in submitting to the jury any issues
associated with the counterclaim; however, the Appellants did
not object to the jury instruction in question. Failure to object
to a jury instruction after it has been submitted to counsel for
review precludes raising an objection on appeal absent plain
error. Houston v. Metrovision, Inc., 267 Neb. 730, 677 N.W.2d
139 (2004). plain error may be asserted for the first time on
appeal or be noted by an appellate court on its own motion.
Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).
plain error exists where there is an error, plainly evident from
the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of
the judicial process. Id. We have reviewed the jury instruction
on the counterclaim for plain error, because the trial court,
whether requested to do so or not, has a duty to instruct the
jury on issues presented by the pleadings and the evidence.
Nguyen v. Rezac, 256 Neb. 458, 590 N.W.2d 375 (1999). In
our plain error review, we have considered the following ques-
tions raised by the Appellants in connection with the submis-
sion of the counterclaim to the jury: (1) whether in surviving
the summary judgment motions directed at the defamation suit,
the Appellants established a “substantial basis in fact and law”
sufficient to defeat the counterclaim; (2) whether the court
improperly instructed the jury on a question of law; and (3) in
the event that the counterclaim involved a question of fact for
the jury, whether the instruction given was proper.
We first consider the Appellants’ argument that because
the defamation suit survived a motion for summary judg-
ment, it had a substantial basis in fact and law and thus the
counterclaim should not have been submitted to the jury.
We reject the Appellants’ argument based upon our consider-
ation of Anderson Development Co. v. Tobias, 116 p.3d 323
(Utah 2005), wherein the Utah Supreme Court considered this
same question. The Utah anti-SLApp statutes have a provision
46 	17 NeBRASkA AppeLLATe RepORTS

similar to Nebraska’s § 25-21,243, allowing a defendant in a
SLApp action to file a counterclaim for the recovery, among
other things, of costs and attorney fees upon a demonstra-
tion that the SLApp action “was commenced or continued
without a substantial basis in fact and law.” Utah Code Ann.
§ 78-58-105 (2002). In the Anderson Development Co. case,
the plaintiff argued on appeal that its claim had a substantial
basis in fact and law because the claim had survived a motion
for summary judgment. The Utah Supreme Court disagreed,
finding that meeting the summary judgment threshold was not
the equivalent of demonstrating that the plaintiff’s claim was
supported by a substantial basis in fact and law. Specifically,
the court stated:
Because dismissal of a claim based on either a motion
to dismiss or a motion for summary judgment denies
the nonmoving party of the right to litigate his claim on
the merits, the threshold for surviving such a motion is
relatively low. See Buckner v. Kennard, 2004 UT 78, ¶ 9,
99 p.3d 842 (“Only if it is clear that the claimant is not
entitled to relief under any state of facts that could be
proven to support the claim should a motion to dismiss be
granted.”); Staker v. Ainsworth, 785 p.2d 417, 429 (Utah
1990) (“To successfully oppose a motion for summary
judgment, it is not necessary for the party to prove its
legal theory. Indeed, it only requires one sworn statement
to dispute the claims on the other side of the controversy
and create an issue of fact.” (footnote omitted)). Meeting
this threshold does not equate to a demonstration that the
claims are supported by a substantial basis in fact and
law. Accordingly, [the defendants] may properly pursue
their [anti-SLApp counterclaim] despite the fact that [the
plaintiff’s] claim against them for intentional interference
with economic relations survived a motion to dismiss and
motions for summary judgment.
116 p.3d at 337.
[20] In Nebraska, the overruling of a motion for summary
judgment does not decide any issue of fact or proposition of
law affecting the subject matter of the litigation, but merely
indicates that the court was not convinced by the record that
SANd LIveSTOCk SyS. v. SvOBOdA 	47
Cite as 17 Neb. App. 28

there was not a genuine issue as to any material fact or that the
party offering the motion was entitled to judgment as a matter
of law. Big River Constr. Co. v. L & H Properties, 268 Neb.
207, 681 N.W.2d 751 (2004). As did the Anderson Development
Co. court, we conclude that meeting the summary judgment
threshold in this case was not the equivalent of demonstrating
that the defamation suit was supported by a substantial basis in
fact and law. In ruling on the motions for summary judgment,
the district court simply found genuine issues of material fact
as to both the defamation suit and the counterclaim. We note
that none of the motions for summary judgment in this case
sought summary judgment under § 25-21,246 (the anti-SLApp
summary judgment statute), and we express no opinion as to
the effect of a ruling by the district court under that section.
We next consider whether the district court improperly
allowed the jury to consider a question of law by instructing
the jury to determine whether the Appellants had demonstrated
that the defamation suit “was commenced or continued without
a substantial basis in fact and law.”
We have reviewed the case law from the jurisdictions with
anti-SLApp statutes with a “substantial basis” standard for
overcoming an anti-SLApp counterclaim and have found no
guidance in interpreting this standard to determine whether a
question of law, a question of fact, or a mixed question of fact
and law is involved. See, §§ 25-21,241 to 25-21,246; N.y. Civ.
Rights §§ 70-a and 76-a; N.y.C.p.L.R. §§ 3211(g) and 3212(h);
Utah Code Ann. §§ 78-58-101 to 78-58-105 (2002); del. Code
Ann. tit. 10, §§ 8136 to 8138.
Certain other states impose a “probability of success on the
claim” standard. See, generally, Cal. Civ. proc. Code §§ 425.16
to 425.18 (West Cum. Supp. 2008); La. Code Civ. proc. Ann.
art. 971 (2005). There is case law from both California and
Louisiana stating that the determination regarding the prob-
ability of success on the claim under the anti-SLApp statutes
in those states is a question of law. See, 1100 Park Lane
Associates v. Feldman, 160 Cal. App. 4th 1467, 74 Cal. Rptr.
3d 1 (2008); Zamos v. Stroud, 32 Cal. 4th 958, 87 p.3d 802, 12
Cal. Rptr. 3d 54 (2004); Lee v. Pennington, 830 So. 2d 1037
(La. App. 2002). While the case law from these jurisdictions
48 	17 NeBRASkA AppeLLATe RepORTS

provides some guidance, we note that the anti-SLApp statutes
in California and Louisiana provide only for special motions to
dismiss and not for bringing of a counterclaim for damages as
do Nebraska’s statutes. See, §§ 25-21,241 to 25-21,246; Cal.
Civ. proc. Code §§ 425.16 to 425.18; La. Code Civ. proc. Ann.
art. 971.
[21] In evaluating the “substantial basis in fact and law”
standard found in Nebraska’s anti-SLApp statutes, we find
some guidance in Nebraska’s case law concerning malicious
prosecution. In a malicious prosecution case, the necessary
elements for the plaintiff to establish are (1) the commence-
ment or prosecution of the proceeding against him or her; (2)
its legal causation by the present defendant; (3) its bona fide
termination in favor of the present plaintiff; (4) the absence of
probable cause for such proceeding; (5) the presence of malice
therein; and (6) damage, conforming to legal standards, result-
ing to the plaintiff. Holmes v. Crossroads Joint Venture, 262
Neb. 98, 629 N.W.2d 511 (2001).
[22] In Rose v. Reinhart, 194 Neb. 478, 233 N.W.2d 302
(1975), the Nebraska Supreme Court addressed the question
of whether the “probable cause” determination in a malicious
prosecution action was one for the court or for the jury. The
plaintiff brought the action as a result of the defendant, a bank
president, causing a criminal complaint to be filed against the
plaintiff for uttering an insufficient fund check with intent to
defraud. The jury verdict awarded damages to the plaintiff. On
appeal, the court determined that the bank’s motion for directed
verdict should have been sustained and, accordingly, the judg-
ment was reversed and remanded with directions to dismiss the
plaintiff’s petition. In so holding, the court found that the facts
were sufficient to demonstrate probable cause as a matter of
law. The court noted that “‘[t]he existence or lack of probable
cause is the very gist of an action for malicious prosecution.
The question to be decided is whether there is sufficient uncon-
tradicted evidence to show the existence of probable cause at
the time the complaint was filed.’” Id. at 481, 233 N.W.2d at
304, quoting Jones v. Brockman, 190 Neb. 15, 205 N.W.2d 657
(1973). The court also noted that want of probable cause is an
essential and indispensable element of a malicious prosecution
SANd LIveSTOCk SyS. v. SvOBOdA 	49
Cite as 17 Neb. App. 28

action in either a civil or criminal action, “‘“no matter what
the results.”’” Id., quoting Brumbaugh v. Frontier Refining
Co., 173 Neb. 375, 113 N.W.2d 497 (1962). The court defined
probable cause as a reasonable ground of suspicion, supported
by facts and circumstances of such a nature as to justify a
cautious and prudent person in believing that the accused was
guilty. Id.
[23] In Jones v. Brockman, supra, the Nebraska Supreme
Court also determined that the existence of probable cause in a
malicious prosecution case was a question of law for the court
and not an issue of fact for the jury. In that case, the defendant,
a special deputy sheriff, was attempting to serve the plaintiff
with a legal notice. The plaintiff was subsequently charged
with resisting an officer. In affirming the trial court’s grant
of summary judgment in favor of the defendant, the Supreme
Court assumed that the trial judge predicated his ruling on
the premise that the facts and circumstances established by
uncontradicted evidence were sufficient to establish probable
cause for the criminal prosecution. The court reiterated an
earlier holding in which the court said, “‘“Whether facts and
circumstances established by uncontradicted evidence amount
to probable cause for a criminal prosecution is a question of
law for the court, and not an issue of fact for the jury. This
is not only the law of Nebraska, but is a generally accepted
rule.”’” Id. at 17, 205 N.W.2d at 659, quoting Kersenbrock v.
Security State Bank, 120 Neb. 561, 234 N.W. 419 (1931). The
court in Jones concluded that while some of the facts support-
ing probable cause were disputed by the plaintiff’s testimony,
there were other undisputed facts upon which the defense of
probable cause might be predicated. The court held that in such
circumstances, the question of probable cause is one of law for
the court.
In the present case, the court instructed the jury concerning
the issues, burden of proof, effect of findings, and defenses
applicable to the libel and false light causes and to the counter-
claim. We note the jury was instructed that the burden of proof
as to the libel and false light causes was clear and convincing
evidence and that the burden applicable to the counterclaim was
the greater weight of the evidence, which burdens were defined
50 	17 NeBRASkA AppeLLATe RepORTS

in a separate instruction. Specifically, with regard to the burden
of proof on the counterclaim, instruction No. 7 provided:
Before one or more of the [Appellees] can recover
against one or more of the [Appellants] on the [Appellees’]
counterclaim in this action, [an appellee] must prove by
the greater weight of the evidence, each and all of the
following:
1(a)[.] That this lawsuit was commenced or continued
by the [Appellants] against the [Appellees] without a sub-
stantial basis in fact and law; (Consider 1(b) only if you
have found that 1(a) is true)
1(b)[.] That the [Appellants’] lawsuit was commenced
or continued for [the] purpose of harassing, intimidating,
punishing, or otherwise maliciously inhibiting the free
exercise of petition, speech, or association rights of the
[Appellees]; and
2. That these actions on the part of the [Appellants]
were a proximate cause of some damage to one or more
of the [Appellees]; and
3. the nature and extent of that damage.
The need for the jury to make a determination of whether the
litigation was “commenced or continued without a substantial
basis in fact and law” was also referenced several times in the
jury instruction concerning the award of damages. The jury
was not given a definition of “substantial basis in fact and law”
or any information as to under what set of circumstances the
Appellants would or would not have had a substantial basis in
fact and law for commencing or continuing the litigation.
One of the difficulties in this case with the instructions relat-
ing to the counterclaim is that the instructions left the jury with
no way to distinguish between a finding that the Appellants did
not prove their case in the defamation suit and a finding that
the Appellants did or did not have a substantial basis in fact
and law for commencing or continuing the defamation suit.
The concern we have with allowing the jury in this case to
make the “substantial basis” determination was aptly discussed
by the California Supreme Court in a malicious prosecution
case, wherein the court discussed the propriety of allowing the
jury to make the probable cause determination:
SANd LIveSTOCk SyS. v. SvOBOdA 	51
Cite as 17 Neb. App. 28

An important policy consideration underlies the com-
mon law rule allocating to the court the task of determin-
ing whether the prior action was brought with probable
cause. The question whether, on a given set of facts, there
was probable cause to institute an action requires a sensi-
tive evaluation of legal principles and precedents, a task
generally beyond the ken of lay jurors, and courts have
recognized that there is a significant danger that jurors
may not sufficiently appreciate the distinction between a
merely unsuccessful and a legally untenable claim.
Sheldon Appel Co. v. Albert & Oliker, 47 Cal. 3d 863, 875, 765
p.2d 498, 504, 254 Cal. Rptr. 336, 342 (1989).
We conclude that it was plain error for the trial court to allow
the jury to determine the question of whether the Appellants had
a substantial basis in fact and law to commence or continue the
defamation suit. essentially, this question revolves around the
legal validity of the defamation claim and is uniquely within
the province of the court. We sympathize with the trial court,
given the dearth of guidance in the area of anti-SLApp claims
in general and, particularly, what is appropriate for the jury to
decide. Nevertheless, because the jury was allowed to deter-
mine a question of law, the substantial rights of the Appellants
were prejudicially affected such that we are required to reverse
the judgment of the district court.
[24] We hold that under § 25-21,243(1), a trial court must
first determine as a matter of law whether the action involving
public petition and participation was commenced or continued
without a substantial basis in fact and law and could not be
supported by a substantial argument for the extension, modifi-
cation, or reversal of existing law. If the court determines that
a substantial basis did exist, then the court should direct a ver-
dict against the anti-SLApp claim. If the court determines that
a substantial basis did not exist, then the jury (unless a jury is
waived) should be instructed to determine the second portion
of § 25-21,243(1), namely, whether the action involving public
petition and participation was commenced or continued for
the purpose of harassing, intimidating, punishing, or otherwise
maliciously inhibiting the free exercise of petition, speech,
or association rights. In addition, the jury should decide the
52 	17 NeBRASkA AppeLLATe RepORTS

compensatory damages, if any, to be awarded under this por-
tion of the statute.
Remaining Assignments of Error.
[25] Given our resolution of the above assignment of error,
we need not address the Appellants’ remaining assignments of
error. An appellate court is not obligated to engage in an analy-
sis which is not needed to adjudicate the controversy before it.
Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb.
214, 739 N.W.2d 162 (2007).
CONCLUSION
We affirm that portion of the judgment which found against
the Appellants on their defamation suit. We reverse the judg-
ment of the district court and remand for a new trial on the
counterclaim between Svoboda, Hamilton, and Fortkamp and
the Appellants, consistent with this opinion.
A ffirmed in pArt , And in pArt reverSed
And remAnded for A new triAL.
kAthLeen beLitz , now known AS kAthLeen monAco ,
AppeLLAnt , v . J ohn f. beLitz , J r ., AppeLLee .
756 N.W.2d 172
Filed September 16, 2008. 	No. A-07-1172.
1. Jurisdiction: Appeal and Error. It is the duty of an appellate court to settle
jurisdictional issues presented by a case.
2. ____: ____. A jurisdictional question which does not involve a factual dispute is
determined by an appellate court as a matter of law.
3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
4. Final Orders: Appeal and Error. Generally, when multiple issues are presented
to a trial court for simultaneous disposition in the same proceeding and the court
decides some of the issues, while reserving some issue or issues for later deter-
mination, the court’s determination of less than all the issues is an interlocutory
order and is not a final order for the purpose of an appeal.
5. Final Orders. When the substantial rights of the parties to an action remain
undetermined and the cause is retained for further action, the order is not final.
BeLITz v. BeLITz 	53
Cite as 17 Neb. App. 53