Frederick v. Seeba

CONCLUSION
For the reasons stated above, we find that Solomon’s 1998
conviction is valid for enhancement purposes. As a result,
Solomon had three prior convictions, and the June 27, 2006,
charge should have resulted in a conviction for DUI, fourth
offense. Therefore, we vacate the sentence and remand this
cause to the district court for resentencing of Solomon for DUI,
fourth offense. See State v. Nelson, 262 Neb. 896, 636 N.W.2d
620 (2001) (holding that state and federal double jeopardy
provisions do not prohibit habitual criminal enhancement on
remand from appellate court).
S entence vacated , and cauSe
remanded for reSentencing .
david L. frederick and caroL frederick , huSband and wife ,
and dougLaS e. merz , individuaLLy and on behaLf of aLL
former and current StockhoLderS of S aLem grain
co ., inc . a nebraSka corporation , appeLLeeS, v .
J ohn S eeba and rita S eeba , huSband and wife ,
doing buSineSS aS J&r traiLerS and r.J.’S
mobiLe power waShing , appeLLantS.
745 N.W.2d 342
Filed February 5, 2008. 	No. A-06-272.
1. Judgments: 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, which requires the appellate court to reach a conclusion independent of the
lower court’s decision.
2. 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.
3. Final Orders: Appeal and Error. The test of finality of an order of judgment for
the purpose of appeal is whether there was a final order entered by the tribunal
from which the appeal is taken.
4. ____: ____. The three types of final orders which may be reviewed on appeal
are (1) an order which affects a substantial right and which determines the action
and prevents a judgment, (2) an order affecting a substantial right made during a
special proceeding, and (3) an order affecting a substantial right made on summary
application in an action after judgment is rendered.
FreDerICk v. SeeBA 	373
Cite as 16 Neb. App. 373
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

5. Words and Phrases. A substantial right is an essential legal right, not a mere
technical right.
6. Final Orders: Appeal and Error. A substantial right is affected if the order affects
the subject matter of the litigation, such as diminishing a claim or defense that was
available to an appellant prior to the order from which an appeal is taken.
7. Rules of the Supreme Court: Pretrial Procedure: Appeal and Error. An order
imposing a money judgment for attorney fees and expenses for discovery violations
pursuant to Neb. Ct. r. of Discovery 37(a)(4) does not affect a “substantial right”
as required by Neb. rev. Stat. § 25-1902 (reissue 1995).
8. Jurisdiction: Appeal and Error. An appellate court has the independent duty to
determine whether or not jurisdiction over an appeal exists.
9. Jurisdiction: Final Orders: Appeal and Error. Generally, in the absence of a
final order from which an appeal may be taken, the appeal must be dismissed for
lack of jurisdiction. However, there is an exception to this rule which provides
for appellate review of interlocutory orders that fall within that small class which
finally determine claims of right separable from, and collateral to, rights asserted
in the action, too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the whole case
is adjudicated.
10. Final Orders: Appeal and Error. There are three elements that must be met for
an order to fall within the collateral order doctrine: The order must conclusively
determine the disputed question, resolve an important issue completely separate
from the merits of the action, and be effectively unreviewable on appeal from a
final judgment.
Appeal from the District Court for richardson County: danieL
bryan , J r ., Judge. Appeal dismissed.
John M. Guthery and Shawn P. Dontigney, of Perry, Guthery,
Haase & Gessford, P.C., L.L.O., for appellants.
J.L. Spray and robin L. Spady, of Mattson, ricketts, Davies,
Stewart & Calkins, for appellees.
inbody, Chief Judge, and carLSon and caSSeL, Judges.
inbody, Chief Judge.
INTrODUCTION
John Seeba and rita Seeba appeal from the richardson
County District Court’s award of $11,732.75 in attorney fees
and expenses for discovery violations pursuant to Neb. Ct. r. of
Discovery 37(a)(4) (rev. 2000). For the reasons set forth herein,
we dismiss this case for lack of jurisdiction.
374 	16 NeBrASkA APPeLLATe rePOrTS

STATeMeNT OF FACTS
The instant case involves a shareholder derivative action
brought against the Seebas by the appellees, David L. Frederick,
Carol Frederick, and Douglas e. Merz, individually and on
behalf of all former and current stockholders of Salem Grain
Company, Inc. On February 18, 2005, the appellees filed a
motion to compel which was granted by the district court on
March 23, except for those claims withdrawn from the court’s
consideration by the appellees.
The appellees filed a second motion to compel on October
12, 2005. A hearing thereon was held on November 29, at which
time the appellees informed the court that the Seebas had com-
plied with one request listed in the motion to compel and thus
were withdrawing that request. On December 13, the district
court again compelled the Seebas to comply with the discovery
requests, except for one request which was overruled.
At the November 29, 2005, hearing, appellees made a motion
for attorney fees and sanctions against the Seebas. A hearing
thereon was held on January 24, 2006. On February 14, the dis-
trict court entered a money judgment for $11,732.75 on behalf
of the appellees and against the Seebas jointly and severally
for attorney fees and expenses in accordance with Nebraska’s
discovery rule 37(a)(4). The Seebas have appealed.
ASSIGNMeNT OF errOr
On appeal, the Seebas contend, restated, that the district
court erred in sanctioning them $11,732.75 in attorney fees and
expenses for discovery violations.
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, which requires the appellate court to reach a conclusion
independent of the lower court’s decision. Hallie Mgmt. Co. v.
Perry, 272 Neb. 81, 718 N.W.2d 531 (2006); State of Florida
v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 N.W.2d
905 (2005).
FreDerICk v. SeeBA 	375
Cite as 16 Neb. App. 373

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. In re Guardianship of
Sophia M., 271 Neb. 133, 710 N.W.2d 312 (2006).
Final Order Under § 25-1902.
[3,4] The test of finality of an order of judgment for the pur-
pose of appeal is whether there was a final order entered by the
tribunal from which the appeal is taken. See Williams v. Baird,
273 Neb. 977, 735 N.W.2d 383 (2007). The three types of final
orders which may be reviewed on appeal are (1) an order which
affects a substantial right and which determines the action and
prevents a judgment, (2) an order affecting a substantial right
made during a special proceeding, and (3) an order affecting
a substantial right made on summary application in an action
after judgment is rendered. In re Guardianship of Sophia M.,
supra. See, Neb. rev. Stat. § 25-1902 (reissue 1995); Williams
v. Baird, supra.
We note that the district court’s February 14, 2006, order was
not an order which determined the action and prevented a judg-
ment and was not an order made on summary application in an
action after judgment had been rendered. The Seebas concede
as much in their brief. Therefore, we focus our discussion on
whether the district court’s order is an order affecting a substan-
tial right made during a special proceeding.
[5,6] A “substantial right” is “an essential legal right, not a
mere technical right. A substantial right is affected if the order
affects the subject matter of the litigation, such as diminishing
a claim or defense that was available to an appellant prior to
the order from which an appeal is taken.” In re Guardianship of
Sophia M., 271 Neb. at 138, 710 N.W.2d at 316.
In Cunningham v. Hamilton County, 527 U.S. 198, 119 S.
Ct. 1915, 144 L. ed. 2d 184 (1999), the U.S. Supreme Court
considered whether an order imposing sanctions based on Fed.
r. Civ. P. 37(a) against an attorney in the amount of $1,494,
representing costs and fees for discovery violations, was a
“final decision” for the purposes of appeal. The Court held that
it was not and noted that a Fed. r. Civ. P. 37(a) sanctions order
376 	16 NeBrASkA APPeLLATe rePOrTS

is often intertwined with the merits of the action, which may
require a reviewing court to inquire into the importance of the
information sought or the adequacy of truthfulness of a response
in order to evaluate the appropriateness of sanctions.
Further, the U.S. Supreme Court noted that to permit an
immediate appeal from a sanctions order would undermine the
very purposes of Fed. r. Civ. P. 37(a), which was designed to
protect courts and opposing parties from delaying or harass-
ing tactics during the discovery process, because such appeals
“would undermine trial judges’ discretions to structure a sanc-
tion in the most effective manner.” 527 U.S. at 209. Immediate
appeals of sanctions might cause trial judges not to sanction
attorneys in order to avoid litigation delays. Further, each new
sanction would give rise to a new appeal, forestalling resolution
of the case. The court noted that delay and piecemeal appeals
were the very types of results that the final judgment rule was
designed to prevent.
[7] In the instant case, the district court’s order entered a
money judgment for $11,732.75 in favor of appellees. Such an
order does not affect the subject matter of the litigation, such as
diminishing a claim or defense available to the party or in any
way affect the ability to advance or defend the lawsuit. Further,
the filing of a direct appeal is sufficient to protect their interests.
Thus, an order imposing a money judgment for attorney fees
and expenses for discovery violations pursuant to Nebraska’s
discovery rule 37(a)(4) does not affect a “substantial right” as
required by § 25-1902. Consequently, the order appealed from
in this case is not a final order.
Collateral Order Doctrine.
[8] Although the Seebas contend that the collateral order
doctrine is not applicable in this case, an appellate court has the
independent duty to determine whether or not jurisdiction over
an appeal exists. See Hallie Mgmt. Co. v. Perry, 272 Neb. 81,
718 N.W.2d 531 (2006). Thus, we consider whether the collat-
eral order doctrine is applicable to the instant case.
[9] Generally, in the absence of a final order from which an
appeal may be taken, the appeal must be dismissed for lack
of jurisdiction. Id. However, there is an exception to this rule
FreDerICk v. SeeBA 	377
Cite as 16 Neb. App. 373

which provides for appellate review of interlocutory orders that
fall within “‘that small class which finally determine claims
of right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent
of the cause itself to require that appellate consideration be
deferred until the whole case is adjudicated.’” Id. at 85, 718
N.W.2d at 534 (quoting Cohen v. Beneficial Loan Corp., 337
U.S. 541, 69 S. Ct. 1221, 93 L. ed. 1528 (1949)). The Nebraska
Supreme Court has also noted that the U.S. Supreme Court has
emphasized the modest scope of the collateral order doctrine,
explaining that
“‘the “narrow” exception should stay that way and never
be allowed to swallow the general rule . . . that a party is
entitled to a single appeal, to be deferred until final judg-
ment has been entered, in which claims of district court
error at any stage of the litigation may be ventilated.’”
Williams v. Baird, 273 Neb. 977, 983-84, 735 N.W.2d 383, 390
(2007) (quoting Hallie Mgmt. Co. v. Perry, supra). Accord State
v. Pratt, 273 Neb. 817, 733 N.W.2d 868 (2007).
[10] The Nebraska Supreme Court has stated:
The U.S. Supreme Court has set forth three elements
that must be met for an order to fall within the collateral
order doctrine: “[T]he order must conclusively determine
the disputed question, resolve an important issue com-
pletely separate from the merits of the action, and be effec-
tively unreviewable on appeal from a final judgment.”
Hallie Mgmt. Co. v. Perry, 272 Neb. at 85-86, 718 N.W.2d at
535 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 98
S. Ct. 2454, 57 L. ed. 2d 351 (1978)).
In Hallie Mgmt. Co. v. Perry, supra, the Nebraska Supreme
Court considered whether the collateral order doctrine applied to
a discovery order compelling disclosure of documents claimed
to be protected by the attorney-client privilege and work prod-
uct doctrine. The court held that the collateral order doctrine
was not applicable because the appellant could not establish
that the district court’s order was effectively unreviewable upon
final judgment. Although the court acknowledged that harm that
may occur in delaying an occasional erroneous discovery order,
such harm was outweighed by the delay and disruption that
378 	16 NeBrASkA APPeLLATe rePOrTS

would occur in the litigation process if interlocutory appeals
were allowed from every discovery order which claimed to
implicate privilege.
In the instant case, the Seebas cannot meet the third condition
of the collateral order doctrine, i.e., that the order is effectively
unreviewable upon final judgment. Once a final determination
of the merits of the case has been decided, the Seebas can
appeal the imposition of attorney fees and expenses at that time,
and if the appellate court determines that an error was made,
the remedies available to the Seebas after appeal from a final
judgment are sufficient to adequately protect their interests.
Therefore, this appeal is not reviewable under the collateral
order doctrine.
CONCLUSION
Having found that no final order exists in the instant case
and the appeal is not reviewable under the collateral order doc-
trine, we lack jurisdiction over this appeal. Thus, the appeal
is dismissed.
appeaL diSmiSSed .
J ennifer Lynn hongSermeier , appeLLee , v .
ronaLd d. devaLL and tonya L. devaLL,
huSband and wife , appeLLantS.
744 N.W.2d 481
Filed February 5, 2008. 	No. A-06-521.
1. Specific Performance: Equity: Appeal and Error. An action for specific per-
formance sounds in equity, and on appeal, an appellate court tries factual questions
de novo on the record and, as to questions of both fact and law, is obligated to
reach a conclusion independent from the conclusion reached by the trial court.
2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
HONGSerMeIer v. DeVALL 	379
Cite as 16 Neb. App. 379