Brozovsky v. Norquest

• Decision Date: 07 April 1989
• Docket Number: 87-477,Nos. 87-476,s. 87-476
• Parties: Carol BROZOVSKY, Appellant v. Dean G. NORQUEST, Appellee. Dean G. NORQUEST and Grace E. Norquest, Appellees, v. Carol BROZOVSKY, Appellant.
• Court: Nebraska Supreme Court

Page 798

437 N.W.2d 798

231 Neb. 731

Carol BROZOVSKY, Appellant v. Dean G. NORQUEST, Appellee.

Dean G. NORQUEST and Grace E. Norquest, Appellees, v. Carol BROZOVSKY, Appellant.

Nos. 87-476, 87-477.

Supreme Court of Nebraska.

April 7, 1989.

Syllabus by the Court

1. Supreme Court: Jurisdiction: Final Orders: Appeal and Error. The Supreme Court has jurisdiction only to hear appeals from final orders.

2. Final Orders: Words and Phrases. When no further action of the court is required to dispose of the cause pending, it is final; when the cause is retained for further action, it is interlocutory.

3. Final Orders: Words and Phrases: Appeal and Error. As a general rule, an order granting or denying a motion for a protective order is not a final judgment for purposes of appeal.

4. Final Orders: Appeal and Error. A discovery order can be reviewed on appeal from a final judgment in the case.

Lyle Joseph Koenig, Hebron, for appellant.

John C. Hahn, of Jeffrey, Hahn, Hemmerling & Wade, P.C., Lincoln, for appellees.

BOSLAUGH, SHANAHAN, and GRANT, JJ., and KNAPP and ROWLANDS, District Judges.

BOSLAUGH, Justice.

These cases arise out of a controversy between Carol Brozovsky and Dean G. Norquest concerning the division and distribution of the assets of C.E. Norquest & Sons, Inc. Brozovsky was married to Clayton Norquest, who was a brother of Dean Norquest and who died in 1982.

On May 4, 1982, Brozovsky and Dean Norquest executed a detailed written agreement providing for the division of the assets of the corporation. At that time, Brozovsky was represented by Wallace W. Angle, and Norquest was represented by Ray L. Svehla. The agreement was approved by both counsel.

The agreement recited that the parties were the sole and equal shareholders of the corporation and provided for the division of both real and personal property and the assumption of indebtedness.

Case No. 87-476 is an action commenced by Brozovsky to obtain a declaratory judgment as to the right of Dean Norquest to use a reuse pit located on land she received under the agreement, for partition of the pump located in the reuse pit, and for an accounting as to rent due her from Norquest for his use of her property.

Case No. 87-477 is an action commenced by Dean Norquest and Grace E. Norquest against Brozovsky for damages the plaintiffs alleged they sustained because of Brozovsky's failure to comply with the terms of the May 4, 1982, agreement. The plaintiffs allege that Brozovsky was to assume an indebtedness of $121,900 on land Dean Norquest received under the agreement and that as a result of her failure to assume the debt and make the mortgage payments, the Federal Land Bank of Omaha commenced an action to foreclose the mortgage. On April 29, 1987, the plaintiffs in case No. 87-477 filed "Proposed Deposition Questions to Wallace W. Angle" and filed the same document in case No. 87-476 on May 1, 1987. "Objections to Deposition Questions" were filed in case No. 87-477 on May 5, 1987. The objections alleged that a lawyer-client relationship existed between Angle and Brozovsky, that the proposed deposition questions sought to discover privileged information, and that Brozovsky claimed the privilege provided by Neb.Rev.Stat. § 27-503(3) (Reissue 1985).

On May 5, 1987, the objections filed by Brozovsky and a request for a protective order filed that day were heard and submitted to the trial court.

On May 15, 1987, the plaintiffs in case No. 87-477 filed a notice to take the deposition of Angle and a praecipe for a subpoena duces tecum for Angle. A subpoena was issued the same day.

On May 19, 1987, the trial court found that by pleading the "agreement upon which the action is based," Brozovsky had waived the attorney-client privilege. Angle was directed to testify and make himself available for the deposition. Brozovsky then filed a notice of appeal in each case.

The first matter that must be determined is whether there is a final order in either case from which an appeal could be taken.

Except in a very few situations where a special statute provides otherwise, the appellate jurisdiction of this court is limited to a review of final orders.

In Lake v. Piper, Jaffray & Hopwood, Inc., 212 Neb. 570, 573-74, 324 N.W.2d 660, 662 (1982), we said:

It has long been the rule in this state that the Supreme Court has jurisdiction only to hear appeals from final orders. Neb.Rev.Stat. § 25-1911 (Reissue 1979). A final order is defined in Neb.Rev.Stat. § 25-1902 (Reissue 1979) as "[a]n order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment...."

In Anson v. Kruse, 147 Neb. 989, 990, 25 N.W.2d 896, 897 (1947), this court construed § 25-1902 as follows: " 'A decree to be final must dispose of the whole merits of the case, and leave nothing for the further consideration of the court. An order is final when it affects a substantial right and determines the action.... When no further action of the court is required to dispose of the cause pending, it is final; when the cause is retained for further action, as in this case, it is interlocutory.' "

When a substantial right is undetermined and the cause is retained for further action, the order is not final. Martin v. Zweygardt, 199 Neb. 770, 261 N.W.2d 379 (1978).

In the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction.

In Matter of Bartow, 101 N.M. 532, 685 P.2d 387 (1984), the appeal was from the trial court's denial of a request for a protective order. The court held:

As a general rule an order granting or denying a motion for protective order is not a final judgment or decision for purposes of appeal....

Orders granting or denying a motion for protective order, like orders requiring or denying discovery, or orders requiring a party to submit to a physical or mental examination, generally do not constitute a final disposition of the proceedings. Therefore, they are not normally appealable, except upon the granting of an interlocutory appeal.

(Citations omitted.) Id. at 534, 685 P.2d at 389. See, also, Bartschi v. Chico Community Memorial Hosp., 137 Cal.App.3d 502, 187 Cal.Rptr. 61 (1982); Breuer v. Flynn, 64 Md.App. 409, 496 A.2d 695 (1985).

In 8 C. Wright & A. Miller, Federal Practice and Procedure § 2006 at 29-30, 33-36 (1970), the general rules applicable to discovery orders are stated as follows:

A discovery order, as such, is normally merely an interlocutory order in the course of proceedings and is not appealable....

Ordinarily an order regarding discovery against a person not a party to the action is not appealable. The order is interlocutory insofar as it affects the party seeking discovery. It is final so far as the nonparty is concerned but if discovery is denied he has no need for review and if discovery is granted it is said that his remedy is to defy the order and appeal from a contempt judgment against him....

....

If a party is found guilty of criminal contempt for failure to comply with a discovery order, that is a separate proceeding and the contempt judgment is immediately appealable. If the party is held to be in civil contempt review must await final judgment, although it must be said that there are famous cases in which this distinction may have been overlooked. Some of the sanctions in addition to contempt that may be imposed under Rule 37 are final orders and are appealable as such. If an appeal lies from a contempt order or other sanction, the appellate court will consider whether the discovery order that led to the sanction was proper.

A discovery order can always be reviewed on appeal from a final judgment in the case, even though it is difficult at that stage to show that the party has been prejudiced by the order, or that the question is not moot, and the harmless error doctrine, together with the broad discretion the discovery rules vest in the trial court, will bar reversal save under very unusual circumstances. This is especially true when the order has granted discovery, since there is no effective means of correcting such an order once the discovery has been had. Reversal is more likely, although still unusual, when the trial court has erroneously denied or limited discovery.

In Childs v. Kaplan, 467 F.2d 628 (8th Cir.1972), two judgment debtors attempted to appeal from an order requiring them to answer interrogatories regarding their assets. In holding the order not appealable the court said:

The threshold issue presented by these appeals is whether the order appealed from is an appealable order....

....

The judgment appealed from is not a final judgment....

... The court, after considering the briefs submitted by the parties, entered the order appealed from requiring defendants to answer the interrogatories. In making such order, the court made the finding "there is nothing in the interrogatories which in the opinion of the court would tend to incriminate the defendants by answering the interrogatories." In our view, such order does not constitute a final order.

The question of what sanctions, if any, should be imposed remains open. Defendants still have an opportunity in a proceeding to find them in contempt of court for failure to obey the order or in an application for a protective order to show that answers to the interrogatories will in fact tend to violate their Fifth Amendment rights under the standards set out in Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

In United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971), the Court held that an order denying a motion to quash a subpoena was not a final appealable order. The Court states: "We think that respondent's assertion misapprehends the thrust of our cases. Of course, if he complies with...