Gernstein v. Lake

• Decision Date: 19 May 2000
• Docket Number: No. S-98-817.,S-98-817.
• Citation: 610 N.W.2d 714,259 Neb. 479
• Parties: Lawrence GERNSTEIN et al., appellees, v. Evelyn LAKE, appellant.
• Court: Nebraska Supreme Court

610 N.W.2d 714

259 Neb. 479

Lawrence GERNSTEIN et al., appellees, v. Evelyn LAKE, appellant.

No. S-98-817.

Supreme Court of Nebraska.

May 19, 2000.

Eugene G. Schumacher, of Sipple, Hansen, Emerson & Schumacher, Columbus, for appellant.

Mark A. Keenan, of Moyer, Moyer, Egley, Fullner & Warnemunde, Madison, on brief for appellees.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Evelyn Lake appeals from an order of the district court for Colfax County granting Lawrence Gernstein, Lavern Gernstein, and Harold Gernstein's petition to perpetuate testimony pursuant to Neb. Ct. R. of Discovery 27 (rev.1998) and overruling Lake's demurrer to said petition.

SCOPE OF REVIEW

A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Slaymaker v. Breyer, 258 Neb. 942, 607 N.W.2d 506 (2000).

An order granting a petition to perpetuate testimony is reviewed to determine whether the trial court abused its discretion. See, Deiulemar Compagnia Di Navigazione v. M/V Allegra, 198 F.3d 473 (4th Cir.1999); In re Bay County Middlegrounds Landfill Site, 171 F.3d 1044 (6th Cir.1999).

Inasmuch as the Nebraska Rules of Discovery are generally and substantially patterned after the corresponding discovery rules in the Federal Rules of Civil Procedure, Nebraska courts will look to federal decisions interpreting corresponding federal rules for guidance in construing similar Nebraska rules. See Stanko v. Chaloupka, 239 Neb. 101, 474 N.W.2d 470 (1991).

FACTS

On May 1, 1998, the Gernsteins filed a petition in the district court for Colfax County seeking an order pursuant to rule 27 authorizing them to take the depositions of Lake and L.A. Thomas for the purpose of perpetuating their testimony. The Gernsteins alleged that they expect to become parties to an action cognizable by the district court for Colfax County, which is the county of residence of the expected adverse party, Lake. The Gernsteins claimed that they were not in possession of facts which are necessary to allege such action and that they were presently unable to bring such action or to cause it to be brought.

The Gernsteins further alleged that the subject matter of the expected action will be equitable, to impress a trust or secure an accounting for an amount of money received for them and on their behalf by Lake, but which Lake has failed to distribute to them. The substance of the testimony expected to be elicited from Lake is the establishment of a trust; the amount received; the terms of its conveyance; and the location and contents of any letters, checks, vouchers, receipts, deposit slips, bank accounts, and certificates of deposit or any other document evidencing the trust and the value of the trust. The substance of Thomas' testimony is expected to pertain to the establishment of the trust in the Union Safe Deposit Bank, documents relating to its establishment, the date of its establishment, and the source of the funds establishing the trust and their disposition.

On May 21, 1998, Lake demurred in response to the Gernsteins' petition. The demurrer asserted that the petition failed to state facts sufficient to constitute a cause of action pursuant to rule 27.

At a hearing on June 10, 1998, Lake's counsel argued that the petition failed to comply with rule 27(a)(1)(iii). Lake's counsel argued that the petition failed to show "the facts which he or she desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it." See rule 27(a)(1)(iii). The Gernsteins' counsel argued that one cannot know exactly what the party to be deposed is going to say at a deposition and that therefore the party bringing this type of action should not be required to know such specific facts. In response, Lake's counsel argued that there had to be some factual allegation before the court could grant a petition to allow one to take the deposition of another. It was also asserted that there had been no showing of a need to perpetuate Lake's testimony.

In its order filed July 29, 1998, the district court overruled Lake's demurrer and granted the Gernsteins' petition, thus allowing them to take the depositions of Lake and Thomas for the purpose of perpetuating their testimony.

ASSIGNMENTS OF ERROR

Lake asserts that the district court erred (1) in failing to grant her demurrer, (2) in granting the Gernsteins' petition, and (3) in issuing an order which failed to comply with rule 27.

ANALYSIS

We first consider whether the order from which Lake appeals is a final, appealable order. 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. State v. Pruett, 258 Neb. 797, 606 N.W.2d 781 (2000). A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. Slaymaker v. Breyer, 258 Neb. 942, 607 N.W.2d 506 (2000). Notwithstanding whether the parties raise the issue of jurisdiction, an appellate court has a duty to raise and determine the issue of jurisdiction sua sponte. Henderson v. Department of Corr. Servs., 256 Neb. 314, 589 N.W.2d 520 (1999). For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to hear appeals from nonfinal orders. City of Omaha v. Morello, 257 Neb. 869, 602 N.W.2d 1 (1999).

Discovery orders generally are not subject to interlocutory appeal because the underlying litigation is ongoing and the discovery order is not considered final. See Brozovsky v. Norquest, 231 Neb. 731, 437 N.W.2d 798 (1989). Brozovsky involved a dispute between two individuals who each brought an action concerning the division and distribution of the assets of a corporation. One of the parties had filed proposed deposition questions applicable to both cases, which were met by objection on various grounds by the other party. The trial court overruled such objections and ordered the deponent to testify and make himself available for the deposition. A notice of appeal was then filed with respect to the trial court's decision on this issue. On appeal, we concluded that the orders appealed from were interlocutory, rather than final, and accordingly dismissed the appeal for lack of jurisdiction.

Activities pursuant to rule 27(a) are distinguishable from Brozovsky because the evidence is to be obtained and preserved before an action is brought. The general rule that discovery orders are not subject to interlocutory appeal should not be applied to rule 27, in which there is no ongoing litigation.

Since rule 27 is substantially similar to Fed.R.Civ.P. 27, it is appropriate for us to look to the federal decisions for guidance in determining jurisdiction and in interpreting rule 27. Inasmuch as the Nebraska Rules of Discovery are generally and substantially patterned after the corresponding discovery rules in the Federal Rules of Civil Procedure, Nebraska courts will look to federal decisions interpreting corresponding federal rules for guidance in construing similar Nebraska rules. See Stanko v. Chaloupka, 239 Neb. 101, 474 N.W.2d 470 (1991). See, also, Nebraska Pub. Emp. v. Otoe Cty., 257 Neb. 50, 595 N.W.2d 237 (1999) (concluding that since interpretation of Neb.Rev.Stat. § 48-824(2)(c) (Reissue 1998), which was similar to § 8(a)(3) of National Labor Relations Act, was case of first impression, it was appropriate to look to federal decisions interpreting § 8(a)(3) for guidance); Bluff's Vision Clinic v. Krzyzanowski, 251 Neb. 116, 555 N.W.2d 556 (1996) (concluding that since Nebraska Fair Employment Practice Act is patterned after title VII of Civil Rights Act of 1964, it was appropriate to consider federal court decisions construing similar federal legislation).

Federal courts have held that the grant of a petition to perpetuate testimony is appealable as a final order because it grants all the relief sought in the petition and fully disposes of the proceeding. See, Shore v. Acands, Inc., 644 F.2d 386 (5th Cir.1981); Mosseller v. United States, 158 F.2d 380 (2d Cir.1946). In Mosseller, the court noted:

If such orders were not held final and appealable, a plaintiff who had taken a deposition could wait several years before deciding to bring suit and the putative defendant could not during this time question the propriety of the order by an appeal. So a plaintiff might later be able to bring the suit in another district, thus cutting off a direct right of appeal and leaving serious question as to the defendant's right to make a collateral attack upon the order by objection to introduction of the evidence in the second district.

158 F.2d at 383. Likewise, states which have rules similar to Fed.R.Civ.P. 27 that have considered the appealability of such orders have followed the federal rule and reached the same result. See, e.g., Powers v. Planned Parenthood, 677 A.2d 534 (Me.1996); In re Burlington Bagel Bakery, 150 Vt. 20, 549 A.2d 1044 (1988). Therefore, we conclude that the order granting the Gernsteins' petition to perpetuate testimony under rule 27 is a final, appealable order.

We next proceed to consideration of whether the district court abused its discretion in granting the Gernsteins' petition. An order granting a petition to perpetuate testimony is reviewed to determine whether the trial court abused its discretion. See, Deiulemar Compagnia Di Navigazione v. M/V Allegra, 198 F.3d 473 (4th Cir.1999); In re Bay County Middlegrounds Landfill Site, 171 F.3d 1044 (6th Cir.1999).

Rule 27 provides in relevant part:

Depositions Before Action or Pending Appeal.

(a) Before Action.

(1) Petition. A person who desires to perpetuate his or her own testimony or that of another person regarding any matter that may be cognizable in any court...