It is common practice for companies to enter into non-compete agreements while working with one another or when it comes time to terminate an existing partnership or collaboration. The terms of non-compete agreements can vary greatly by case and by state. Yet, all attempt to limit a party’s ability to work within a certain profession or trade. In the recent Nebraska Court of Appeals case involving WRK, LLC, a real estate development firm, and Zach Wiegert, a real estate developer, the covenant not to compete prohibited Wiegert from competing, whether it be through the role of owner, landlord, or developer, in the same area as WRK for 7.5 years. This agreement also directed WRK to deliver a Special Notice if they believed Wiegert was in violation of the non-compete. If after three days of WRK’s Special Notice, Wiegert has failed to cure the violation, WRK could seek a remedy of $3.5 million.
Before the 7.5 years had passed, WRK accused Wiegert of violating the non-compete agreement. WRK sent a Special Notice but alleged that Wiegert continued to violate their agreement. Wiegert denied the allegation and filed a counterclaim against WRK.
Both WRK and Wiegert filed motions for summary judgement, arguing the opposing party’s claims were baseless. The court dismissed WRK’s claim that Wiegert breached their agreement. Wiegert then voluntarily dismissed his counterclaim without prejudice. Dismissing a claim without prejudice gives the arguing party the option to bring about the claim at a later date if they choose to do so.
As expected, WRK disagreed with the court’s decision to dismiss their claim and sought review by an appellate court. Two main issues arose in the appellate court’s review of the case: (1) whether they had jurisdiction over the case and (2) whether there were issues of material fact regarding whether Wiegert had breached the non-compete agreement and failed to cure such breach within three days.
To have jurisdiction over a case, the appellate court must find a final order issued by the lower court. (28 U.S.C. § 1291). In other words, the lower court must have resolved all claims discussed by both parties to the case. This would require that all claims, whether it be those mentioned in WRK’s initial complaint or what Wiegert alleged in his counterclaim, have been resolved by the court. Yet, given that Wiegert voluntarily dismissed his counterclaim and maintains the ability to bring the claim again, the lower court did not enter a final order.
Yet, since the statute of limitations for Wiegert’s counterclaim had since lapsed, the court found appellate jurisdiction existed. Wiegert counterclaimed that WRK conduced tortious interference with business relationships. The statute of limitations for this claim is four years, meaning that, to argue such a claim, it must be brought about within three years of the tortious interference. At the time that WRK was seeking appellate review, it was over three years after the alleged tortuous interference. Due to the statute of limitations, Wiegert is unable to refile his claim, notwithstanding the claim being dismissed without prejudice. Through this analysis, the appellate court determined that there was proper jurisdiction over the case.
After this determination, the appellate court began examining the case, including deposition testimony and communication between both parties. They found that there existed clear evidence of Wiegert being involved with activities specially barred by the non-competition agreement. Because of the factual disputes that are material to WRK’s claim, the case was remanded for further proceedings. To conclude, the case of WRK, LLC v. Wiegert outlines that a voluntary dismissal of claims without prejudice can equate to a final judgment when the statute of limitations on the claim has since lapsed.
See WRK, LLC v. Wiegert, Nebraska Court of Appeals, No. A-24-143, July 1, 2025
Thanks to ES Law summer associate Erica Solberg, who researched and prepared this article.