The “Single-Document Judgment” Mandate and the Futility of Voluntary Dismissal Tactics: Commentary on Elbert v. Keating, O'Gara, 319 Neb. 390 (2025)

Introduction

The Nebraska Supreme Court’s decision in Elbert v. Keating, O'Gara, Nedved & Peter, P.C., L.L.O. (hereafter Elbert II) addresses a deceptively procedural question that carries sweeping implications for Nebraska appellate practice: When, precisely, is a judgment “rendered” for purposes of appeal, and can the parties create appellate jurisdiction by voluntarily dismissing unresolved claims without prejudice?

The litigation arises out of two serial defamation suits filed by former Bellevue Police Chief Mark D. Elbert against a law firm and its lawyer. The first suit (Elbert I, 2018) ended in summary judgment for defendants and was affirmed on appeal. While the first appeal was pending, Elbert filed the present 2019 action. When the district court dismissed Elbert’s amended complaint under Neb. Ct. R. Pldg. § 6-1112(b)(6) (failure to state a claim), it left the defendants’ anti-SLAPP counterclaim and fee request unresolved. An attempted appeal was dismissed for want of a final judgment. Defendants then voluntarily dismissed their counterclaim without prejudice, whereupon Elbert appealed again.

The Supreme Court dismissed the second appeal as well, holding that:

1. No single written document stating all relief had yet been signed by the trial court, as required by Neb. Rev. Stat. § 25-1301(2) (2020 amendment); therefore, no judgment had been rendered.
2. Appellate jurisdiction cannot be manufactured by voluntarily dismissing remaining claims without prejudice; the longstanding Nebraska rule forbidding such tactics applies regardless of which party seeks dismissal.

Summary of the Judgment

• The Court, sua sponte, examined its jurisdiction and found none.
• It reaffirmed that after the 2020 amendments, a judgment is rendered only when the judge signs a single written document that disposes of all claims and parties.
• The April 20, 2023 order dismissing Elbert’s complaint and the October 10, 2023 order voluntarily dismissing the Firm’s counterclaim were both interlocutory; neither qualified as the requisite single judgment document.
• Voluntary dismissal of unresolved claims without prejudice—whether initiated by plaintiff or defendant—does not confer appellate jurisdiction when it did not otherwise exist.
• The appeal was therefore dismissed, and the district court retains jurisdiction to complete the case correctly.

Analysis

A. Precedents Cited and Their Influence

D&M Roofing & Siding v. Distribution, Inc., 316 Neb. 952 (2024)

Formulated the modern definition of “judgment rendered” post-2020 amendment: a single, signed document stating all relief. Elbert II expressly adopts this definition and applies it to dismiss the appeal.

Clason v. LOL Investments, 316 Neb. 91 (2024)

Reiterated that appellate jurisdiction cannot be created by dismissing unresolved claims without prejudice. Elbert II relies on Clason to dispose of the appellants’ argument that dismissal by the appellee should be treated differently.

Last Pass Aviation v. Western Co-op Co., 296 Neb. 165 (2017)

The template case establishing the “bright-line rule” against voluntary dismissal maneuvers. Cited to show the Court’s consistent resistance to piecemeal appeals.

Addy v. Lopez, 295 Neb. 635 (2017) and Smith v. Lincoln Meadows HOA, 267 Neb. 849 (2004)

Earlier authorities rejecting similar attempts at jurisdictional manipulation. They provide historical continuity for the rule affirmed in Elbert II.

B. Legal Reasoning

1. Statutory Framework. The Court begins with §§ 25-1911 and 25-1912 (governing appellate jurisdiction) and § 25-1301 (defining judgment). Since 2020, § 25-1301(2) demands a single written document. The Court treats this statutory language as jurisdictional, not merely directory.
2. Interlocutory Orders vs. Judgment. The April and October orders are building blocks but not the final structure. Without the requisite single document, the action retains interlocutory status, and all orders remain modifiable.
3. Policy against Piecemeal Appeals. Invoking the rationale of Last Pass Aviation, the Court underscores judicial economy, finality, and the avoidance of multiple appeals arising from a single controversy.
4. Equal Application of the Rule. The Court rejects Elbert’s attempt to distinguish between dismissal by appellant vs. appellee. It stresses a bright line that cannot be blurred by strategic behavior of either party.
5. Constitutional/Prudential Overlay. Although not explicitly framed in constitutional terms, the reasoning reflects separation-of-powers principles: the legislature defines jurisdictional requisites, and the courts cannot expand them ad hoc.

C. Potential Impact

• Trial-Court Practice. Judges must now issue a single, comprehensive final judgment document. Piecemeal orders—even if styled as judgments—will not support appeal.
• Appellate Litigation Strategy. Litigants can no longer shortcut the route to the appellate court by dismissing leftover claims without prejudice. They must either:
  • Obtain a § 25-1315 certification; or
  • Wait for the court to adjudicate or properly dispose of all claims and parties.
• Anti-SLAPP Counterclaims. Defense counsel must weigh carefully whether to dismiss anti-SLAPP counterclaims. Simply dropping them without prejudice will not pave an immediate path to appeal.
• Administrative Clarity. Clerks and e-filing systems must ensure that the “one-document” rule is met before docketing an appeal as perfected.
• Future Litigation. The decision will likely reduce jurisdictional dismissals by giving clearer guidance, but it may also spur more § 25-1315 motions for certification when partial rulings are thought to warrant prompt appellate review.

Complex Concepts Simplified

Single-Document Judgment

Think of it as one sheet of paper (or PDF) signed by the judge that tells the parties, in one place, who won, who lost, and what relief (money, injunctions, costs, fees) has been granted or denied for every claim and every party. Without this sheet, there is no final judgment.

Interlocutory Order

An order made along the way—like a step on a staircase—helpful but not the destination. It can be changed until the final judgment is entered.

Voluntary Dismissal Without Prejudice

A party’s decision to drop a claim for now, but keep the door open to re-file it later. It does not = final resolution. Hence, it cannot create appellate jurisdiction.

§ 25-1315 Certification

A statutory safety valve allowing a trial judge to declare certain rulings final when multiple claims or parties exist. Must contain explicit language and findings; otherwise, the order remains non-final.

Anti-SLAPP

Short for “Strategic Lawsuits Against Public Participation.” Nebraska statutes (§§ 25-21,241 et seq.) let defendants counter-sue for damages and fees when they believe the plaintiff’s lawsuit aims to chill free speech.

Conclusion

Elbert II cements two bright-line rules in Nebraska civil procedure:

1. Since the 2020 amendment to § 25-1301, a trial court must render judgment through a single, signed document that disposes of all claims and parties; absent that document, no appeal lies.
2. Parties cannot end-run that requirement by dismissing leftover claims without prejudice; such maneuvering—regardless of which side initiates it—does not confer appellate jurisdiction.

Practitioners must now design their litigation and appellate strategies around these jurisdictional prerequisites. Trial courts should incorporate boilerplate language into their final judgments that unmistakably states This document constitutes the judgment pursuant to Neb. Rev. Stat. § 25-1301(2) and disposes of all claims and parties. Appellate counsel, for their part, must vigilantly confirm the existence of such a document—or seek § 25-1315 certification—before filing the notice of appeal.

In short, Elbert v. Keating, O'Gara is more than a footnote to protracted defamation litigation; it is now the leading Nebraska authority on the “single-document judgment” rule and the impermeability of voluntary-dismissal ploys. Its jurisdictional lesson is simple, but unforgiving: No judgment, no appeal.