Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/31/2025 09:11 AM CDT
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
Kristi Kellogg, appellee, v. Christopher Mathiesen,
appellant, and Apostle Nursing Home
Health Care, LLC, appellee.
___ N.W.3d ___
Filed October 31, 2025. Nos. S-24-564, S-24-665.
1. Appeal and Error. Where the assignments of error consist of headings
or subparts of arguments and are not within a designated assignments of
error section, an appellate court may proceed as though the party failed
to file a brief, providing no review at all, or, alternatively, may examine
the proceedings for plain error.
2. Rules of the Supreme Court: Appeal and Error. Parties who wish
to secure appellate review must abide by the rules of the Nebraska
Supreme Court, and those who fail to comply with the appellate briefing
rules do so at their own peril.
3. Appeal and Error. When reviewing proceedings for plain error, an
appellate court is not constrained by the specific arguments raised in the
briefs, nor is it required to consider every error that may have occurred
in the lower court.
4. ____. When reviewing for plain error, an appellate court is concerned
with error that is plainly evident from the record and of such a nature
that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
5. ____. Generally, an appellate court will find plain error only when a
miscarriage of justice would otherwise occur.
6. Jurisdiction: Appeal and Error. Plain error review does not, and cannot, constrain an appellate court’s duty to ensure that it has jurisdiction.
Therefore, even when circumstances may warrant plain error review of
the merits, an appellate court will analyze its jurisdiction using the same
standard of review ordinarily applied to jurisdictional issues.
7. Jurisdiction. A jurisdictional issue that does not involve a factual dispute presents a question of law.
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
8. 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.
9. Jurisdiction: Final Orders: Appeal and Error. Read together, Neb.
Rev. Stat. §§ 25-1911 (Reissue 2016) and 25-1912 (Cum. Supp. 2024)
generally prescribe that for an appellate court to acquire jurisdiction of
an appeal, the party must be appealing from either a judgment or decree
rendered or from a final order.
10. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case, because only a party who has standing may invoke the
jurisdiction of a court.
11. ____: ____: ____. Standing refers to whether a party had, at the commencement of the litigation, a personal stake in the outcome of the
litigation that would warrant a court’s exercise of its subject matter
jurisdiction and remedial powers on that party’s behalf.
12. Standing: Parties. To have standing, the plaintiff must have some
legal or equitable right, title, or interest in the subject matter of
the controversy.
Appeals from the District Court for Douglas County:
Timothy P. Burns, Judge. Affirmed.
Michael C. Pettis for appellant.
Christian T. Williams, of Domina Law Group, P.C., L.L.O.,
for appellees.
Funke, C.J., Miller-Lerman, Cassel, Stacy, Papik,
Freudenberg, and Bergevin, JJ.
Cassel, J.
INTRODUCTION
Kristi Kellogg and Christopher Mathiesen, members of a
limited liability company (LLC), brought derivative claims
and counterclaims against one another. Following a bench
trial, the district court denied the derivative claims but granted
Kellogg’s separate application to dissolve the company.
Mathiesen appealed. After the court appointed a receiver, he
filed another appeal. Because Mathiesen failed to assign error
in the manner required by our rules, we review only to ensure
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
that we have jurisdiction and for plain error. Thus, we address
Mathiesen’s contention that Kellogg lacked standing because
she did not possess a transferable interest in the company during the litigation. Because his argument lacks merit and we
otherwise observe no plain error, we affirm.
BACKGROUND
Formation of Company
Mathiesen wished to start a company with Kellogg to provide in-home personal care services to clients. According to
text messages between the parties, Mathiesen proposed:
We start off as 50/50 owners, but percentages change
with money invested into company.
So if I put in $7,500 and you put in $2,500, then the
ownership changes to 75/25, or vi[c]e versa. But we must
agree about putting money in, so that one person can not
simply buy out the other person without an agreement.
Mathiesen paid an online dealer of corporate business documents to produce articles of incorporation and file them with
the Nebraska Secretary of State.
In June 2017, a certificate of organization for Apostle
Nursing Home Health Care, LLC (Apostle), was filed with
the Nebraska Secretary of State. Apostle is an LLC formed
under the Nebraska Uniform Limited Liability Company Act
(LLC Act). 1 Apostle’s funding sources were contemplated to
be “Medicaid and DHHS income,” along with “private pay.”
Operating Agreement
Mathiesen also had the online dealer prepare an operating agreement, but Kellogg contends that she never signed it.
Mathiesen contends that she did. According to Mathiesen, he
spilled a beverage on the agreement signed by both parties,
1
See Neb. Rev. Stat. §§ 21-101 to 21-197 and 21-501 to 21-542 (Reissue
2022 & Cum. Supp. 2024).
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320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
which led to mold, and that is why it was referred to in messages between the parties as the “moldy operating agreement.”
Mathiesen testified that “there’s no signed copy because
[Kellogg and her counsel] shredded it.”
During trial, counsel referred to exhibit 102 as the operating agreement. Although that particular exhibit was not
offered into evidence, counsel for both parties asked questions about its provisions during trial. Paragraph 2.1 of the
document indicated that capital contributions and ownership
percentages would be listed on an “Exhibit A.” Paragraph
2.2 stated that members were not obligated to make additional capital contributions unless unanimously agreed to by
all members.
2017 Sales Contract
In August 2017, Kellogg and Mathiesen executed a “sales
contract agreement” (2017 contract). It stated that “[b]efore
the effective date of 8/8/17, both parties were 50% owners”
but that “[e]ffective 8/8/17, . . . Mathiesen relinquished his
50% ownership to . . . Kellogg, due to his background being
grounds for denial from being a Medicaid Waiver Provider.”
According to the contract, Mathiesen would be able to regain
his 50-percent ownership of Apostle “once [he] is able to have
his assault pardoned by the Governor of Nebraska.”
The 2017 contract specified that any money given or
loaned to Apostle by Mathiesen would not grant him any
ownership. According to Mathiesen’s understanding of that
contract, money loaned by Mathiesen would not carry interest
be repaid at Mathiesen’s discretion.
The 2017 contract addressed the roles of Kellogg and
Mathiesen. It identified Kellogg as owner and chief operations officer but stated that she would not be working full
time for Apostle because she had employment elsewhere as
a registered nurse. Mathiesen would be hired as the chief
executive officer and would work “between 51-69+ hours
a week.”
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
2019 Asset Purchase Agreement
On February 15, 2019, the parties entered into an asset
purchase agreement (2019 contract). It stated that Kellogg,
as owner of Apostle, agreed to sell to Mathiesen 50 percent
of the assets of Apostle. The terms and conditions of the
2019 contract stated Kellogg would “sell, convey, transfer
and assign” to Mathiesen 50 percent of Kellogg’s “right,
title and interest in and to” Apostle’s assets. It specified
that the assets included, but were not limited to, “all assets
such as furniture, fixtures, inventory, customer lists, equipment, telephone numbers, all intangible rights, including but
not limited to all goodwill in or arising from [Apostle] as a
going concern.”
The 2019 contract stated, “The total purchase price . . .
for the Assets shall be one dollar.” As part of the “MUTUAL
REPRESENTATIONS and WARRANTIES,” it stated that
“past mutual interests in the success of [Apostle] qualify
as good and valuable consideration with the addition of the
agreed sales price of one dollar.”
Notice and Initial Lawsuit
In March 2020, Mathiesen sent Kellogg a “Notice” after
he learned that Kellogg used Apostle’s funds to hire a law
firm. The notice directed Kellogg to seek return of money
paid to the law firm or to immediately pay the money herself.
It further stated that Kellogg’s membership in Apostle was
terminated due to failure to make a capital contribution. But
the notice stated that Kellogg could retain her membership
status if she made a capital contribution of $20,796.78 within
14 days.
Three days later, Apostle, through the law firm, filed
a complaint against Mathiesen seeking judicial expulsion
and injunctive relief. Mathiesen filed a motion to dismiss.
He believed that Kellogg brought the action and alleged
that she had no standing to bring the action or to sue in
Apostle’s name.
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
Following a hearing, the court entered an order in June
2020 sustaining the motion to dismiss for failure to state
a claim. It found that both Kellogg and Mathiesen were
50-percent members of Apostle and that there appeared to be
no legally enforceable written operating agreement. The court
reasoned that although Kellogg did not have the authority to
direct Apostle to bring the action, she had capacity to sue
Mathiesen on behalf of Apostle in a derivative suit.
Operative Complaint, Answer,
and Counterclaim
In July 2020, Kellogg filed the operative amended complaint against Mathiesen as the defendant and identified
Apostle as a nominal party. Kellogg stated that she was authorized under § 21-165 to file a derivative suit on Apostle’s
behalf. The complaint alleged that she and Mathiesen were
50-percent owner-members of Apostle.
Kellogg alleged various acts by Mathiesen of corporate
waste, embezzlement, fraud, and threatening behavior toward
Apostle employees. Based on these actions, she made claims
for breach of fiduciary duty under § 21-138, wrongful disassociation under § 21-145, tortious interference with business
expectancies, conversion, judicial expulsion under § 21-145,
and temporary and permanent injunctions.
Mathiesen filed an answer to the amended complaint
in October 2020, along with counterclaims and a cross-claim. The cross-claim was later dismissed. Mathiesen filed
amended counterclaims, but he did not file an amended
answer. Thus, the October 2020 answer (but not the counterclaims) remained operative. Mathiesen alleged that since
Apostle’s inception, he had invested approximately $70,000,
had withdrawn approximately $52,000 from his capital
account, and had maintained an equitable interest in Apostle
of approximately $17,500. According to Mathiesen, Kellogg
never invested any capital or property into Apostle.
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
Mathiesen purported to assert nine causes of action in his
counterclaim against Kellogg. He made claims for breach of
fiduciary duty and breach of the duty of loyalty, dissociation
under § 21-145, tortious interference and loss of business
opportunity, conversion, malicious prosecution, temporary
and permanent injunction, breach of contract, defamation,
and spoliation. Mathiesen asked the court to declare that he
is the 100-percent owner of Apostle and that Kellogg is not a
member or equitable owner. Mathiesen requested a monetary
judgment against Kellogg and injunctive relief.
Temporary Injunction
In July 2020, the district court entered a temporary injunction. It mutually restrained Kellogg and Mathiesen from acting on Apostle’s behalf without the consent of the other. It
also prohibited either party from withdrawing funds from
bank accounts opened on behalf of Apostle without the other’s
consent. This injunction remained in place throughout the rest
of the proceedings.
Application for Dissolution
In June 2021, Kellogg filed a separate application for dissolution. She alleged that conduct of all or substantially all of
Apostle’s activities was unlawful, that it was not reasonable
to carry on with Apostle’s activities in conformity with the
certification of organization, and that Mathiesen was acting in
a manner that was illegal or fraudulent or was oppressive or
harmful to Kellogg. She requested that the court judicially dissolve Apostle and that it appoint a receiver.
Applications to Show Cause
Mathiesen filed a number of applications to show cause.
His October 2020 application alleged that Kellogg had been
circumventing the July 2020 mutual restraining order. The
court granted the application and ordered Kellogg to appear
in court to show cause why she should not be held in
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320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
contempt. Mathiesen subsequently moved to continue the
contempt proceedings.
In March 2023, Mathiesen filed another application. He
alleged that Kellogg had written checks on Apostle’s bank
account without Mathiesen’s consent. Approximately 4 months
later, he filed another application claiming that Kellogg was
misappropriating Apostle’s funds. In Mathiesen’s May 2024
application, he listed $31,742.70 in funds allegedly withdrawn
for Kellogg’s personal benefit while the mutual injunction was
in place. He also listed transactions purportedly showing that
Kellogg had taken or given $31,176.86 in Apostle’s funds in
contravention of the court’s June 2020 order. Those transactions included payments to Kellogg’s counsel’s law firm. The
court denied the application.
Motions for Summary Judgment
Mathiesen filed four motions for summary judgment, and
Kellogg filed one such motion. In each of Mathiesen’s motions,
he contended that Kellogg lacked standing. The court denied
the motions.
In the court’s June 2022 order denying the cross-motions
for summary judgment, it recognized that 2 years earlier, it
held that Apostle did not have an operating agreement and
that the LLC Act governed the dispute. The court stated that
even if the unsigned operating agreement was valid, the 2017
contract would still result in Kellogg’s being the sole member and owner of Apostle. The court found that Mathiesen
transferred his entire membership and ownership interest in
Apostle to Kellogg in the 2017 contract, whether analyzed
using the LLC Act or the unsigned operating agreement.
Trial
On May 13, 2024, a bench trial finally commenced. Brooke
Miller, a licensed certified public accountant, testified that
Apostle was treated as a “C corporation.” According to Miller,
if an owner of a C corporation takes money out, it is treated
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
as either a dividend or a shareholder loan and does not affect
the ownership percentage of an owner. Miller had no opinion regarding whether Kellogg or Mathiesen were owners
or whether there was a difference in ownership percentages.
Miller testified that if she were Apostle’s accountant, she
would inform Kellogg that Kellogg owes Apostle approximately $34,000.
Apostle’s accountant testified that he does not determine
equitable ownership based on capital contributions and that
ownership is determined based on the articles of organization.
The accountant did not have concerns about expenses incurred
by Kellogg and did not see any indication that Mathiesen was
using company funds to pay personal expenses.
Mathiesen testified that there was an equity agreement that
converted his loans to Apostle back to capital contributions. He
claimed that Kellogg “destroyed” that document.
Mathiesen contended that Kellogg lost her membership in
Apostle on May 22, 2019, when she used Apostle’s funds to
pay $401 for her personal utility bill. Mathiesen explained his
understanding of the parties’ ownership if an individual had
$1 of transferable interest and took out $401:
That transaction would be kind of split in two because
if they only have $1 of transferable interest, they can
only take away $1 transferable interest. There is no other
transferable interest to pull away from. So that one would
go to zero.
And then the second part of it would be the rest of
the $400 charge. So at that moment, it would transfer the
transferable interest of $1 and they would be left with
a $400 debt. But if they paid the $401 back, then they
would regain their $1 of transferable interest and regain
their standing.
Mathiesen testified that Kellogg was a member without a
transferable interest until he “voted out” Kellogg on March
24, 2020. Although Mathiesen testified in his deposition that
the 2019 contract had nothing to do with membership status,
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
he changed his mind at trial to agree with the district court’s
summary judgment finding that equity was encompassed
within “intangible rights” identified in the 2019 contract.
The parties disputed whether an operating agreement existed
and had been signed. Kellogg testified that there was no operating agreement, and she did not recall signing a document
purporting to be one. Mathiesen produced an operating agreement, but it was not signed by Kellogg. He explained that he
spilled a beverage on startup paperwork for Apostle, including
an operating agreement, and those documents acquired mold.
According to Mathiesen, Kellogg signed the operating agreement that later acquired mold on it. In October 2019, the parties exchanged text messages referring to paperwork that had
mold on it.
Kellogg testified that it was “impossible” to work with
Mathiesen. In a deposition, Mathiesen testified that there was
no logical reason why he and Kellogg should continue to
be in business together. Apostle’s accountant did not feel
that Kellogg and Mathiesen should be working together with
the company.
Kellogg felt that Mathiesen represented a risk to Apostle’s
clients. Evidence established that Mathiesen engaged in inappropriate behavior with a client of Apostle who suffered
from significant disabilities. Mathiesen’s wife, who was not
an Apostle employee, drove Mathiesen and the client in the
company’s van to a party where the client ingested illegal
drugs. At trial, Mathiesen admitted to engaging in oral sex
with this same client; he denied any sexual activity in his
deposition. Three Apostle employees were terminated from
employment based on their reports that Mathiesen was having a sexual relationship with the client. The employees filed
a lawsuit alleging that Mathiesen wrongfully terminated their
employment in retaliation for making a lawful report. Apostle
settled the lawsuit for $30,000. In connection with the lawsuit, Apostle paid $5,000 for its attorney fees and $2,250 for
an investigation.
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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
Testimony was adduced about Jeremy Jorgenson’s role with
Apostle. At times, he was characterized as a “W-2 employee”
and at other times as an independent contractor. Jorgenson
was unable to be a caregiver because he could not pass the
background check, and he could not interact with client files
because he had no “HIPAA training.” Kellogg testified that
Jorgenson did nothing for Apostle but that Apostle had paid
him over $228,000.
July 2024 Order and Appeal
On July 19, 2024, the court entered what it styled as an
order. It found that Kellogg and Mathiesen were 50-percent
co-owners or managers of Apostle. The court found that
“Mathiesen’s contention that an unproduced equity agreement
was simultaneously signed by the parties is not credible.”
The court further stated, “In rectifying what Kellogg’s and
Mathiesen’s intentions were in entering into these two contracts, it is clear beyond all doubt that they were subverting
Mathiesen’s ineligibility from receiving a Medicaid waiver.”
Because neither party had “‘clean hands,’” the court denied
all of their derivative causes of action.
The court then turned to whether Apostle should be dissolved. It stated that Mathiesen had “continually acted with
oppressive behavior,” had engaged in fraudulent behavior by
paying $228,461.31 to an employee who “provided Apostle
with zero worth,” and had been sexually involved with a client of Apostle that resulted in a judgment against Apostle. The
court stated that Apostle must be dissolved and possibly sold.
The order stated:
IT IS THEREFORE ORDERED that all the causes
of action of Kellogg and Mathiesen are overruled
and denied.
IT IS FURTHER ORDERED that the application
of Kellogg to dissolve Apostle and possibly sell it is
sustained and granted.
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320 Nebraska Reports
KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
IT IS FURTHER ORDERED that a receiver shall
be appointed pursuant to Neb. Rev. Stat. § 25-1081 to
oversee the dissolution and possible sale of Apostle. A
hearing to determine the appointment of a receiver is set
for [a date and time in August 2024].
IT IS FURTHER ORDERED that any claim for
relief made by either party which is not explicitly granted
in this Order is overruled and denied.
On July 26, 2024, Mathiesen filed notice of his intent to
appeal the July 19 order. This appeal was docketed in the
Nebraska Court of Appeals as case No. A-24-564.
Order of Receiver Appointment and Appeal
On August 13, 2024, the court entered an order on the
appointment of a receiver. It appointed a receiver and gave
instructions to the receiver. The court stated: “Because
Mathiesen has filed an appeal, the Receiver shall not take
steps to wind up and dissolve the company or otherwise sell it.
The Court will issue additional instructions following resolution of the appeal.”
On September 6, 2024, Mathiesen appealed from the order
appointing a receiver. This appeal was docketed in the Court of
Appeals as case No. A-24-665.
Kellogg moved to consolidate the appeals for briefing, and
the Court of Appeals sustained the motion. We subsequently
moved the consolidated appeals to our docket. 2
ASSIGNMENTS OF ERROR
Mathiesen’s brief does not comply with our court
rules regarding assignments of error. Neb. Ct. R. App. P.
§ 2-109(D)(1) (rev. 2024) governs the mandatory content
of an appellant’s brief. It provides, “The brief of appellant
. . . shall contain the following sections, under appropriate
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2024).
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KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
headings, and in the order indicated . . . .” 3 The order specified is the title page, a table of contents, a statement of the
basis of jurisdiction, a statement of the case, a statement of
each error a party contends was made by the trial court, propositions of law, a statement of facts, a summary of the argument, and arguments. 4 Mathiesen did not include an assignments of error section; instead, he listed errors in the table of
contents section.
[1] In a prior appeal to this court between the same parties,
Mathiesen’s brief contained the same deficiency. 5 We stated
that his brief “lack[ed] an assignments of error section.” 6 We
cautioned that where the assignments of error consist of headings or subparts of arguments and are not within a designated
assignments of error section, an appellate court may proceed
as though the party failed to file a brief, providing no review
at all, or, alternatively, may examine the proceedings for plain
error. 7 There, the lack of an assignments of error section was
not consequential because our analysis began and ended with
a determination that we lacked jurisdiction.
[2] Here, ramifications flow from Mathiesen’s disregard of our warning about the need to place assignments of
error within the proper designated section. Parties who wish
to secure appellate review must abide by the rules of the
Nebraska Supreme Court, and those who fail to comply with
the appellate briefing rules do so at their own peril. 8 As we
warned in the earlier appeal, we opt to limit our review to
plain error due to the briefing deficiency.
3
§ 2-109(D)(1).
4
See id.
5
See Mathiesen v. Kellogg,
315 Neb. 840,
1 N.W.3d 888 (2024).
6
Id. at 847, 1 N.W.3d at 895.
7
Mathiesen v.
Kellogg, supra note 5.
8
State ex rel. Hilgers v. Evnen,
318 Neb. 803,
19 N.W.3d 244 (2025).
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KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
[3-5] When reviewing proceedings for plain error, we are
not constrained by the specific arguments raised in the briefs,
nor are we required to consider every error that may have
occurred in the lower court. 9 Instead, when reviewing for
plain error, an appellate court is concerned with error that is
plainly evident from the record and of such a nature that to
leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. 10 Generally, an
appellate court will find plain error only when a miscarriage
of justice would otherwise occur. 11
[6] Before conducting our plain error review, we address
two jurisdictional arguments. One is whether appellate jurisdiction has vested in this court. The other concerns standing.
When considering these jurisdictional issues, we do not apply
a plain error standard of review, because plain error review
does not, and cannot, constrain an appellate court’s duty to
ensure that it has jurisdiction. Therefore, even when circumstances may warrant plain error review of the merits, an appellate court will analyze its jurisdiction using the same standard
of review ordinarily applied to jurisdictional issues. 12
STANDARD OF REVIEW
[7] A jurisdictional issue that does not involve a factual dispute presents a question of law. 13
ANALYSIS
Appellate Jurisdiction
[8,9] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
9
Id.
10
Id.
11
Id.
12
Id.
13
See Johnson v. City of Omaha,
319 Neb. 402,
23 N.W.3d 420 (2025).
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KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
jurisdiction over the matter before it. 14 Read together,
Neb.
Rev. Stat. §§ 25-1911 (Reissue 2016) and 25-1912 (Cum.
Supp. 2024) generally prescribe that for an appellate court to
acquire jurisdiction of an appeal, the party must be appealing from either a judgment or decree rendered or from a
final order. 15
This case is procedurally unusual. An application to dissolve an LLC was filed in an existing case involving a derivative action and counterclaim, and the court tried the matters
together. Clearly, the derivative claims and counterclaims
were asserted in an “action.” 16 We have described the granting
of dissolution of an LLC and appointment of a receiver as a
special proceeding. 17 Thus, the matter here proceeded simultaneously upon an action and a special proceeding.
As to the derivative claims, the July 19, 2024, filing represented a final determination of the parties’ rights in that action.
As such, it was a judgment. 18 A week later, Mathiesen filed a
notice of appeal. Because the July 19 filing was a judgment as
to the derivative claims, we have appellate jurisdiction of the
judgment in case No. S-24-564.
In the same filing setting forth the judgment on the action,
the court addressed the dissolution special proceeding. The
court granted dissolution of the company and stated that a
receiver shall be appointed to oversee the dissolution, but
14
Khaitov v. Greater Omaha Packing Co.,
319 Neb. 932,
25 N.W.3d 739
(2025).
15
Id.
16
See Tegra Corp. v. Boeshart,
311 Neb. 783,
976 N.W.2d 165 (2022)
(action is any proceeding in court by which party prosecutes another for
enforcement, protection, or determination of right or redress or prevention
of wrong involving and requiring pleadings, process, and procedure
provided by statute and ending in final judgment).
17
See Schreiber Bros. Hog Co. v. Schreiber,
312 Neb. 707,
980 N.W.2d 890
(2022).
18
See
Neb. Rev. Stat. § 25-1301(1) (Cum. Supp. 2024).
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KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
the court set the appointment for a future hearing. Because the
court reserved the appointment of a receiver, the dissolution
aspect of the matter remained interlocutory. 19
Once the court actually named a receiver and provided
instructions, Mathiesen filed an appeal from that order. Because
the appointment of a receiver is a final order, 20 we also have
jurisdiction over the order in case No. S-24-655.
Standing
[10-12] Standing is a jurisdictional component of a party’s
case, because only a party who has standing may invoke the
jurisdiction of a court. 21 Standing refers to whether a party had,
at the commencement of the litigation, a personal stake in the
outcome of the litigation that would warrant a court’s exercise
of its subject matter jurisdiction and remedial powers on that
party’s behalf. 22 To have standing, the plaintiff must have some
legal or equitable right, title, or interest in the subject matter of
the controversy. 23
The crux of Mathiesen’s standing argument is that Kellogg
did not own a transferable interest in Apostle at any time during the litigation and that she was therefore statutorily barred
from bringing her claims. We disagree.
Statutes within the LLC Act authorize derivative actions.
A member of an LLC may maintain a derivative action to
enforce a right of the LLC. 24 Generally, such an action may
be maintained only by a person who is a member at the time
19
See Evert v. Srb, 308 Neb. 895,
957 N.W.2d 475 (2021) (when cause is
retained for further action, it is interlocutory and nonappealable).
20
See Robertson v. Southwood,
233 Neb. 685,
447 N.W.2d 616 (1989). See,
also,
Neb. Rev. Stat. § 25-1090 (Reissue 2016).
21
Nebraska Firearms Owners Assn. v. City of Lincoln,
319 Neb. 723,
24
N.W.3d 891 (2025).
22
Id.
23
Id.
24
§ 21-165.
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KELLOGG V. MATHIESEN
Cite as 320 Neb. 223
the action is commenced and who remains a member while the
action continues. 25
There is no dispute that Kellogg was a member of Apostle
at one time. We observe that “[a] person may become a member without acquiring a transferable interest and without making or being obligated to make a contribution to the [LLC].” 26
Further, a contribution does not have to be economic; it can
consist of services performed to benefit the LLC. 27 Thus, a
member’s interest in an LLC is divided into economic rights,
which can be transferred, and governance rights, which generally cannot be transferred. 28
The dispute is whether Kellogg ceased to be a member
when, prior to filing this lawsuit, she used Apostle’s funds to
pay a personal utility bill. According to Mathiesen, Kellogg
had a $1 transferable interest by virtue of the 2019 contract,
which she lost when she paid a $401 personal utility bill. We
find no support for his argument in the LLC Act.
The LLC Act defines key terms. A “[t]ransferable interest means the right, as originally associated with a person’s
capacity as a member, to receive distributions from a[n LLC]
in accordance with the operating agreement, whether or not
the person remains a member or continues to own any part
of the right.” 29 A “[d]istribution, except as otherwise provided in [§ 21-134(g)], means a transfer of money or other
property from a[n LLC] to another person on account of a
transferable interest.” 30
25
See § 21-166(a).
26
§ 21-130(d).
27
See § 21-131.
28
See 54 C.J.S. Limited Liability Companies § 44 (2020). See, also, Zokaites
v. Pittsburgh Irish Pubs, LLC,
962 A.2d 1220 (Pa. Super. 2008).
29
§ 21-102(24) (emphasis supplied).
30
§ 21-102(6).
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Based on these definitions, we have considerable doubt
that using funds of an LLC to pay a member’s personal bill
falls within the definition of distribution. Kellogg’s use of
Apostle’s funds to pay her personal utility bill was not done
on account of her right to receive distributions; rather, it was,
at most, a misuse of the LLC’s funds. “Misappropriations of
limited liability funds for a member’s personal use are not
‘distributions.’” 31 As a bankruptcy court explained, while a
misappropriation of funds by a member, like a distribution,
involves taking money from the LLC, the nature of the transfers is different. 32
Another flaw in Mathiesen’s argument is his contention that
50 percent of all of Apostle’s assets—which the 2019 contract
identified as including, but not limited to, all of its furniture,
fixtures, and equipment—was worth only $1. We conclude that
Kellogg remained a member at the time of filing her derivative
action. As a member, she had standing.
No Plain Error
Although reviewing for plain error only, we observe that
Mathiesen purported to assign 12 errors. A theme throughout
his arguments on the various issues is that Kellogg lacked standing to bring a derivative action—an issue we have addressed
and rejected. Having reviewed the voluminous record, we see
nothing rising to the level of plain error.
CONCLUSION
For the reasons provided above, we conclude the following:
• Mathiesen’s appeals from both the July 2024 judgment determining the derivative claims and the August 2024 order
appointing a receiver vested this court with appellate jurisdiction over both appeals.
31
54 C.J.S., supra note 28, § 46 at 579.
32
See In re Young, 384 B.R. 94 (D.N.J. 2008).
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• Kellogg, as a member of the LLC during the litigation, had
standing to bring the derivative action on behalf of Apostle.
Seeing no error plainly evident from the record, we affirm the
district court’s judgment in case No. S-24-564 and its order
appointing a receiver in case No. S-24-665.
Affirmed.
