Poppert v. Dicke

562 	275 Nebraska reports
likely would not be able to show the necessary “lack of knowl-
edge . . . as to the facts in question” in order to be entitled to
an estoppel defense. this is so because the manager, a simplot
employee, was involved in the alleged concealment, and his
knowledge would likely be imputed to simplot.28
simplot’s final assignment of error is without merit.
CoNCLUsIoN
the crop services for which simplot seeks payment are not
“administration expenses” under § 30-2485. as such, it was
necessary that simplot file either a claim or a lawsuit within
4 months from when the sums were due. since simplot failed
to do either, it is barred from recovering any amounts due. the
district court did not err in dismissing simplot’s claim.
affiRmed .
28 see, e.g., Nichols v. Ach, 233 Neb. 634, 447 N.W.2d 220 (1989), disap-
proved on other grounds, Anderson v. Service Merchandise Co., 240 Neb.
873, 485 N.W.2d 170 (1992).
glenn poppeRt , appellant , v .
B ill d. dicKe et al ., appellees .
747 N.W.2d 629
Filed april 24, 2008. 	No. s-06-741.
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. ____: ____. 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.
3. Actions: Words and Phrases. a “claim for relief” within the meaning of Neb.
rev. stat. § 25-1315(1) (Cum. supp. 2006) is equivalent to a separate cause of
action, as opposed to a separate theory of recovery.
4. Final Orders: Words and Phrases. a final judgment is the functional equivalent
of a final order within the meaning of Neb. rev. stat. § 25-1902 (reissue 1995).
5. Actions: Words and Phrases. a cause of action consists of the fact or facts
which give one a right to judicial relief against another; a theory of recovery is
not itself a cause of action.
6. Actions: Pleadings. two or more claims in a complaint arising out of the same
operative facts and involving the same parties constitute separate legal theories,
of either liability or damages, and not separate causes of action.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

7. Actions. Whether more than one cause of action is stated depends mainly upon
(1) whether more than one primary right or subject of controversy is presented,
(2) whether recovery on one ground would bar recovery on the other, (3) whether
the same evidence would support the different counts, and (4) whether separate
causes of action could be maintained for separate relief.
8. Final Orders: Appeal and Error. Without a final order, an appellate court lacks
jurisdiction and must dismiss the appeal.
appeal from the District Court for Lancaster County: paul d.
meRRitt , JR., Judge. appeal dismissed.
r.J. shortridge, Corey L. stull, Jeanette stull, shawn p.
Dontigney, and Derek a. aldridge, for appellant.
John C. Chatelain and John J. Maynard, of Chatelain &
Maynard, for appellees bill D. Dicke and Cattlemen’s Nutrition
services, L.L.C.
heavican, C.J., wRight, connolly, geRRaRd, mccoRmacK,
and milleR-leRman, JJ.
heavican, C.J.
INtroDUCtIoN
Glenn poppert filed this action against bill D. Dicke;
Cattlemen’s Nutrition services, LLC (CNs); McDermott and
Miller, p.C. (McDermott & Miller); and Donald a. schaller.
poppert appeals from the district court’s dismissal of his claims
for breach of the fiduciary duties of loyalty, care, and good
faith and fair dealing.
FaCtUaL baCkGroUND
poppert and Dicke organized Cattlemen’s Consulting service,
Inc. (CCs). poppert was a 10-percent equity owner; Dicke
was a 90-percent equity owner. before entering into the busi-
ness, poppert sought and received the professional opinion
of McDermott & Miller, an accounting firm, and schaller, a
certified public accountant. CCs dissolved in 2000, and poppert
resigned in 2003. Dicke formed CNs in 2004.
In his amended complaint, poppert alleged 10 discrete “causes
of action.” the first three “causes of action” claimed a breach
of the duties of loyalty, care, and good faith and fair dealing.
poppert v. DICke 	563
Cite as 275 Neb. 562

564 	275 Nebraska reports
With respect to each duty, poppert alleged that Dicke breached
it by paying himself and others an excessive salary, failing to
distribute earnings after october 13, 2003, selling CCs’ assets
piecemeal to himself rather than preserving its goodwill by
selling as an ongoing business, and operating a competing busi-
ness at the same time as he was a member of CCs.
In his fourth “cause of action,” misappropriation of company
opportunities, poppert alleged that Dicke purchased CCs assets
piecemeal, acquiring goodwill and trade secrets for insuffi-
cient consideration. poppert’s fifth and sixth “causes of action”
alleged that Dicke negligently and fraudulently misrepresented
the value of CCs.
poppert’s 	seventh 	“cause 	of 	action,” 	unjust 	enrichment,
alleged that Dicke paid himself an excessive salary, failed to
distribute earnings, and dissolved CCs for less than fair market
value, thus acquiring goodwill and trade secrets for less than
fair market value. In his eighth and ninth “causes of action,”
poppert alleged professional negligence and negligent misrep-
resentation on the part of schaller and McDermott & Miller,
contending that these defendants misrepresented the value of
CCs. poppert’s tenth “cause of action” alleged the misappro-
priation of trade secrets involving CCs’ secrets’ being given to
CNs without proper consideration.
Dicke and CNs filed a motion to dismiss, which was granted
in part. In particular, the district court concluded that as to
the first three “causes of action”—breach of the duties of
loyalty, care, and good faith and fair dealing—no such duties
existed. the district court reasoned that under Nebraska’s
Limited Liability Company act, Neb. rev. stat. § 21-2601
et seq. (reissue 1997), there was no express fiduciary duty
relating to the conduct of members and managers of a limited
liability company. the district court certified its dismissal
under Neb. rev. stat. § 25-1315(1) (Cum. supp. 2006), and
poppert appeals.
assIGNMeNt oF error
poppert assigns, restated, that the district court erred in find-
ing that there was no fiduciary duty imposed upon members
and managers in a limited liability company.

staNDarD oF reVIeW
[1] a jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
aNaLysIs
[2] 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.2 the procedural posture
of this case presents an issue under § 25-1315(1).
section 25-1315(1) provides that
[w]hen more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason
for delay and upon an express direction for the entry of
judgment. In the absence of such determination and direc-
tion, any order or other form of decision, however desig-
nated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and
the order or other form of decision is subject to revision at
any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.
section 25-1315(1), therefore, is limited to circumstances
“[w]hen more than one claim for relief is presented” and the
court’s order finally adjudicates “one or more but fewer than all
of the claims.” before § 25-1315 was enacted, the dismissal of
one of multiple causes of action was a final, appealable order,
but an order dismissing one of multiple theories of recovery,
all of which arose from the same set of operative facts, was
1 Williams v. Baird, 273 Neb. 977, 735 N.W.2d 383 (2007).
2 Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007).
poppert v. DICke 	565
Cite as 275 Neb. 562

566 	275 Nebraska reports
not a final order for appellate purposes.3 section 25-1315 was
an attempt by the Legislature to clarify questions regarding
final orders where there were multiple claims, but it permits a
judgment to become final only under the limited circumstances
set forth in the statute.4 It does not provide “magic words,” the
invocation of which transforms any order into a final judgment
for purposes of appeal.5
[3,4] a “claim for relief” within the meaning of § 25-1315(1)
is equivalent to a separate cause of action, as opposed to a sepa-
rate theory of recovery.6 and a final judgment is the functional
equivalent of a final order within the meaning of Neb. rev. stat.
§ 25-1902 (reissue 1995).7 thus, for an order appealed from
to be certifiable as a final judgment under § 25-1315(1), (1)
the case must involve multiple causes of action, as opposed to
theories of recovery, and (2) the order must completely dispose
of at least one of those causes of action.
[5-7] a cause of action consists of the fact or facts which
give one a right to judicial relief against another; a theory of
recovery is not itself a cause of action.8 thus, two or more
claims in a complaint arising out of the same operative facts
and involving the same parties constitute separate legal theo-
ries, of either liability or damages, and not separate causes
of action.9 Whether more than one cause of action is stated
depends mainly upon (1) whether more than one primary right
or subject of controversy is presented, (2) whether recovery
on one ground would bar recovery on the other, (3) whether
the same evidence would support the different counts, and
3 Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007);
Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005); Keef v. State,
262 Neb. 622, 634 N.W.2d 751 (2001).
4 see, Cerny, supra note 3; Malolepszy, supra note 3; Keef, supra note 3.
5 Keef, supra note 3.
6 see, Keef, supra note 3; Chief Indus. v. Great Northern Ins. Co., 259 Neb.
771, 612 N.W.2d 225 (2000).
7 see Cerny, supra note 3.
8 Keef, supra note 3.
9 see id.

(4) whether separate causes of action could be maintained for
separate relief.10
poppert’s operative complaint in this case purports to allege
10 discrete “causes of action.” Further review of the complaint,
however, suggests that there are at most only three causes of
action. poppert’s “causes of action” Nos. 1 through 3, which
were dismissed by the order from which poppert now appeals,
are instead part of the same cause of action, as the allegations
supporting each are effectively identical and more appropriately
labeled “theories of recovery.” With respect to these theories
of recovery, poppert alleges that Dicke breached the fiduciary
duties of loyalty, care, and good faith and fair dealing by pay-
ing himself and others an excessive salary, failing to distribute
earnings, selling CCs’ assets piecemeal to himself rather than
preserving its goodwill by selling as an ongoing business, and
operating a competing business at the same time as he was a
CCs member.
“Causes of action” Nos. 8 and 9, directed at defendants
schaller and McDermott & Miller, are also just different theo-
ries of recovery for the same single cause of action and there-
fore compose poppert’s second cause of action. poppert alleges
in these theories of recovery that schaller and McDermott &
Miller engaged in professional malpractice and negligent mis-
representation when each defendant allegedly overrepresented
the value of CCs at formation. and arguably, “causes of action”
Nos. 5 and 6, while directed at Dicke, are coextensive with
“causes of action” Nos. 8 and 9, as all four allege that poppert
was deceived about the capitalization and value of CCs.
but most importantly, “causes of action” Nos. 1 through 3
are coextensive with “causes of action” Nos. 4, 7, and 10. the
same operative facts support all six of these theories of recov-
ery: Dicke allegedly paid excessive salaries, did not pay poppert
cash distributions, and sold the business to himself piecemeal
so as to acquire its goodwill and trade secrets without paying
fair market value. “Causes of action” Nos. 1 through 4, 7, and
10 are, in fact, all theories of recovery for the same underlying
cause of action. and the district court’s order dismisses some
10 Id.
poppert v. DICke 	567
Cite as 275 Neb. 562

568 	275 Nebraska reports
of those theories of recovery, i.e., “causes of action” Nos. 1
through 3, but does not dismiss all of them.
[8] In short, the district court’s order was not a “‘final
order’ . . . as to one or more but fewer than all of the causes of
action.”11 to be appealable, an order must satisfy the final order
requirements of §§ 25-1902 and 25-1315(1).12 “‘[s]ince the
judgment does not dispose of the entirety of any one claim [for
relief], it cannot be made an appealable judgment by recourse’”
to § 25-1315(1).13 and without a final order, this court lacks
jurisdiction and must dismiss the appeal.14
We conclude this court lacks jurisdiction over this appeal,
and it must be dismissed.
CoNCLUsIoN
the trial court did not have the authority to certify the order
appealed from as a final judgment, as that order disposes of
three theories of recovery for a particular cause of action, but
does not dispose of three other theories of recovery for the
same cause of action. this appeal is dismissed.
appeal dismissed .
stephan, J., not participating.
11 Bailey v. Lund-Ross Constructors Co., 265 Neb. 539, 547, 657 N.W.2d 916,
924 (2003).
12 see Cerny, supra note 3.
13 see Monument Mgt. Ltd. Partnership I v. Pearl, Miss., 952 F.2d 883, 885
(5th Cir. 1992).
14 see id.
geRRaRd, J., concurring.
I agree completely with the court’s analysis of the jurisdic-
tional issue presented in this appeal, and I join the court’s opin-
ion. I write separately to comment on these proceedings, in the
hope of limiting similar jurisdictional defects in future cases.
the parties have represented, and the record suggests, that
the district court certified this appeal as a final judgment on its
own motion. Despite the fact that a party aggrieved by a certi-
fied final judgment may be required to perfect a timely appeal

poppert v. DICke 	569
Cite as 275 Neb. 562
from that judgment to preserve a claim of error,1 sua sponte
certification of a final judgment is generally considered to be
within a trial court’s discretion.2
this discretion, however, should be exercised sparingly by
trial courts. the purpose of Neb. rev. stat. § 25-1315(1) (Cum.
supp. 2006) is to make interlocutory review available in the
“‘“‘infrequent harsh case’”’” in which the general policy
against piecemeal appeals is outweighed by the likelihood of
injustice or hardship to the parties of a delay in entering a final
judgment as to part of the case.3 It will be an “‘unusual case’”
in which certification of a final judgment should be entered at
all.4 It should be an even more unusual case in which a court
should certify a final judgment without a party’s request.
because certification is primarily intended to serve the needs
of the parties, it would be preferable for a trial court to seek
the input of the parties before proceeding to certify a judgment,
because factors unknown to the court may affect the equities
of certification. It may be that hardship to the parties will be
exacerbated, and not relieved, by an interlocutory appeal. In
this case, for example, the certification order has required the
parties to expend time and “to incur costs and significant attor-
neys’ fees appealing and briefing the certified issues.”5 It is also
possible that the jurisdictional defect presented in this appeal
might have been called to the attention of the trial court, and
avoided, had the parties been invited to participate in determin-
ing whether or not a final judgment should be certified.
I note, for the benefit of future litigants, that because a
certified judgment is considered final for all purposes, a party
can ask a trial court to reconsider a decision to certify a final
1 see, e.g., In re Lindsay, 59 F.3d 942 (9th Cir. 1995); Federal Deposit Ins.
Corp. v. Tripati, 769 F.2d 507 (8th Cir. 1985).
2 see, e.g., Intergraph Corp. v. Intel Corp., 253 F.3d 695 (Fed. Cir. 2001);
Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944 (7th Cir.
1980).
3 see Cerny v. Todco Barricade Co., 273 Neb. 800, 809, 733 N.W.2d 877, 886
(2007).
4 see id.
5 supplemental brief for appellant at 2.

570 	275 Nebraska reports
state of neBRasKa , appellee , v .
chad K inKennon , appellant .
747 N.W.2d 437
Filed april 24, 2008. 	No. s-07-654.
1. Prosecuting Attorneys: Appeal and Error. a motion for the appointment of a
special prosecutor is addressed to the discretion of the trial court, and absent an
abuse of discretion, a ruling on such a motion will not be disturbed on appeal.
2. Sentences: Appeal and Error. a sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
3. Prosecuting Attorneys. When a disqualified attorney is effectively screened from
any participation in the prosecution of a defendant, the prosecutor’s office may, in
general, proceed with the prosecution.
4. ____. What constitutes an effective procedure for screening a disqualified lawyer
from the prosecution of a defendant will depend on the particular circumstances
of each case. at a minimum, the disqualified lawyer should acknowledge the
obligation not to communicate with any of the other lawyers in the office with
respect to the matter. the other lawyers in the office who are involved with the
matter should be informed that the screening is in place and that they are not to
discuss the matter with the disqualified lawyer.
5. ____. In order to be effective, procedures for screening a disqualified lawyer from
the prosecution of a defendant must be implemented as soon as practical after the
lawyer or a government office employing the lawyer knows or reasonably should
know that screening is needed.
6. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the
right to assert prejudicial error on appeal.
7. Constitutional Law: Self-Incrimination. the Fifth amendment right to be free
from self-incrimination is a personal right of the witness.
judgment, with a timely motion to alter or amend the certified
judgment.6 this presents parties with a way to present jurisdic-
tional or prudential concerns to the trial court, even after a final
judgment has been certified.
Nonetheless, the pitfall of defective appellate jurisdiction was
not avoided in this case. While it is unfortunate, the terms of
§ 25-1315(1) simply do not permit us to exercise jurisdiction in
this case. therefore, I join the opinion of the court dismissing
this appeal.
6 see, Neb. rev. stat. § 25-1329 (Cum. supp. 2006); 10 James Wm. Moore
et al., Moore’s Federal practice § 54.26[1] (3d ed. 2008).