Wednesday, February 06, 2008
Parties to a dispute over the Salem Grain Company won nearly $12000 attorneys' fees for the defendants' failure to comply with discovery orders. The appealing parties' appeal is dismissed as neither a final nor a collateral order. Frederick v. Seeba, A-06-272, 16 Neb. App. 373`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 RRS Neb.to seek review of the appellant's discovery sanctions, they must meet three elements for their appeal to come within the collateral order doctrine: “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively not reviewable 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)). the Seebas cannot meet the third condition of the collateral order doctrine, i.e., that the order is effectively not reviewable upon final judgment. Once a final determination of the merits of the case has been decided, theSeebas 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 theSeebas after appeal from a final judgment are sufficient to adequately protect their interests.