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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

LOYD v. FAMILY DOLLAR STORES OF NEB.

Cite as 304 Neb. 883

Cheryl Loyd, appellant, v. Family Dollar 

Stores of Nebraska, Inc., appellee.

___ N.W.2d ___

Filed January 24, 2020. No. S-19-230.

1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for review, it is the power and duty of an appellate court to determine whether it has jurisdiction over the matter before it, irrespective of 

whether the issue is raised by the parties.

2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that 

does not involve a factual dispute presents a question of law, which an 

appellate court independently decides.

3. Jurisdiction: Final Orders: Appeal and Error. 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 entertain appeals from nonfinal orders.

4. Workers’ Compensation: Final Orders: Appeal and Error. There are 

three types of final orders which may be reviewed on appeal, one of 

which is an order that affects a substantial right made during a special 

proceeding. Because workers’ compensation proceedings are special 

proceedings, the issue is whether the court’s order is final.

5. Workers’ Compensation: Compromise and Settlement. Under Neb. 

Rev. Stat. § 48-139(2)(b)(iv) (Reissue 2010), if an application for 

approval of a lump-sum settlement is not approved, the compensation 

court may (1) dismiss the application at the cost of the employer or (2) 

continue the hearing, in the discretion of the compensation court.

6. Rules of the Supreme Court: Attorney and Client: Jurisdiction: 

Appeal and Error. The Nebraska Rules of Professional Conduct do not 

authorize appellate jurisdiction over adverse rulings on claims involving privilege.

7. Appeal and Error. The right of appeal in Nebraska is purely statutory.

8. Pretrial Procedure: Final Orders: Attorney and Client: Appeal 

and Error. In the context of discovery orders, an interlocutory order 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/27/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

LOYD v. FAMILY DOLLAR STORES OF NEB.

Cite as 304 Neb. 883

compelling the production of documents for which a claim of privilege 

is asserted is appealable neither as a final order nor under the collateral 

order doctrine.

Appeal from the Workers’ Compensation Court: John R. 

Hoffert, Judge. Appeal dismissed.

Michael W. Meister for appellant.

Patrick J. Sodoro and Lyndsey A. Canning, of Law Office of 

Patrick J. Sodoro, L.L.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

This is an appeal from an order disapproving the parties’ 

application for an order approving a lump-sum settlement on 

the grounds that the application was not in compliance with the 

Nebraska Workers’ Compensation Act.1 The Nebraska Workers’ 

Compensation Court found the application was not in the best 

interests of the claimant, after the claimant’s attorney objected 

to the compensation court’s requirement that he disclose the 

amount of his fees. Because the compensation court’s order of 

disapproval was not a final, appealable order, we dismiss this 

appeal for lack of jurisdiction.

BACKGROUND

On October 12, 2016, the appellant, Cheryl Loyd, filed 

a petition seeking benefits under the Nebraska Workers’ 

Compensation Act for injuries sustained while performing her 

job duties at Family Dollar Stores of Nebraska, Inc. (Family 

Dollar), the appellee in this matter. Loyd claimed she had 

been injured while unloading a truck and had developed a hernia as a result. Family Dollar initially denied the claims, but 

1 See Neb. Rev. Stat. § 48-101 et seq. (Reissue 2010, Cum. Supp. 2018 & 

Supp. 2019).
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

LOYD v. FAMILY DOLLAR STORES OF NEB.

Cite as 304 Neb. 883

later agreed to settle the dispute for a lump-sum payment of 

$150,000, along with the establishment of an interest-bearing 

account for additional medical payments. Because Loyd is 

a Medicare beneficiary, § 48-139(1)(a) requires the lumpsum settlement to be submitted to the compensation court for 

approval. After the application for approval was submitted, 

the compensation court requested that the parties make certain 

revisions to the application, provide an itemized list of medical 

expenses, and provide the amount of fees and costs to be paid 

from the settlement amount to Loyd’s attorney.

In response to the compensation court’s request, the parties 

filed a joint stipulation, which included the requested revisions 

and medical expenses. However, the stipulation did not include 

the amount of fees and costs, because Loyd’s attorney objected 

to the required disclosure. After a hearing on the objection, on 

February 15, 2019, the compensation court issued a written 

“Order of Disapproval of Lump Sum Settlement Application 

and Joint Stipulation.” In its order, the compensation court 

found it had the authority to order that the amount of attorney fees and costs be disclosed under § 48-139, because the 

statute requires a determination of whether the application 

and joint stipulation are in conformity with the compensation 

schedule and in the best interests of an employee “under all 

the circumstances.”

Without the amount of fees and costs, the court determined 

it was unable to review and approve such fees, as required 

by § 48-108, and found that the application and joint stipulation were not in compliance with the Nebraska Workers’ 

Compensation Act and not in the best interests of Loyd. Both 

parties appeal the compensation court’s refusal to approve the 

application for a lump-sum settlement.

ASSIGNMENTS OF ERROR

Each of the parties’ assignments of error relates to the compensation court’s requirement that Loyd disclose her attorney 

fees as a prerequisite to approving the lump-sum settlement 

agreement.
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

LOYD v. FAMILY DOLLAR STORES OF NEB.

Cite as 304 Neb. 883

Loyd assigns that the compensation court erred in (1) 

failing to recognize that the objection to the required disclosure of attorney fees and costs was Loyd’s assertion of her 

attorney-client privilege and not her attorney’s own objection; (2) misinterpreting and misapplying § 48-108, which 

has always been applied to fee disputes between clients and 

attorneys or between law firms; and (3) reading meaning into 

§§ 48-108 and 48-139 that was not warranted by the language 

of the statutes.

Family Dollar’s sole assignment of error is that the compensation court erred in denying the parties’ settlement application for failure to disclose Loyd’s fee agreement with her 

attorney, because it hindered the parties’ expectations for 

settlement compared to the time, costs, and uncertainty associated with trial. We note that although Family Dollar assigned 

error, it failed to properly present a cross-appeal pursuant to 

Neb. Ct. R. App. P. § 2-109 (rev. 2014), because it did not 

include the required cross-appeal designation on the cover of 

its brief.

STANDARD OF REVIEW

[1] Before reaching the legal issues presented for review, 

it is the power and duty of an appellate court to determine 

whether it has jurisdiction over the matter before it, irrespective of whether the issue is raised by the parties.2

[2] A jurisdictional issue that does not involve a factual 

dispute presents a question of law, which an appellate court 

independently decides.3

ANALYSIS

[3] The threshold issue we must first address is whether 

this court has jurisdiction over the appeal. 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; 

2 State v. Uhing, 301 Neb. 768, 919 N.W.2d 909 (2018).

3 Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

LOYD v. FAMILY DOLLAR STORES OF NEB.

Cite as 304 Neb. 883

conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.4

[4] There are three types of final orders which may be 

reviewed on appeal,5 one of which is an order that affects a 

substantial right made during a special proceeding.6 Because 

workers’ compensation proceedings are special proceedings, 

the issue is whether the court’s order is final.7

In a special proceeding, an order is final and appealable if 

it affects a substantial right of the aggrieved party. An order 

affects a substantial right when the right would be significantly undermined or irrevocably lost by postponing appellate 

review.8 Stated another way, an order affects a substantial right 

if it “‘“affects the subject matter of the litigation, such as 

diminishing a claim or defense that was available to the appellant prior to the order from which he or she is appealing.”’”9

Loyd asserts that this court has jurisdiction because the 

appeal was filed within 30 days of the compensation court’s 

order disapproving the lump-sum settlement agreement and 

joint stipulation. Loyd further asserts that this court has jurisdiction over the appeal, because it centers around § 3-501.6 of 

the Nebraska Rules of Professional Conduct10 and the comment 

section of the rule specifically allows for appeal under the circumstances presented in this case.

Compensation Court’s Disapproval.

[5] Under § 48-139(2)(b)(iv), if an application for approval 

of a lump-sum settlement is not approved, the compensation 

4 Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

5 Neb. Rev. Stat. § 25-1902 (Reissue 2016).

6 Id.

7 Jacobitz v. Aurora Co-op, 287 Neb. 97, 841 N.W.2d 377 (2013).

8 Deines v. Essex Corp., 293 Neb. 577, 879 N.W.2d 30 (2016).

9 Id. at 581, 879 N.W.2d at 33-34 (quoting State v. Jackson, 291 Neb. 908, 

870 N.W.2d 133 (2015)).

10 See Neb. Ct. R. of Prof. Cond. § 3-501.6 (rev. 2019).
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

LOYD v. FAMILY DOLLAR STORES OF NEB.

Cite as 304 Neb. 883

court may (1) dismiss the application at the cost of the employer 

or (2) continue the hearing, in the discretion of the compensation court. Here, the compensation court did neither. Instead, it 

entered an order of disapproval.

The order of disapproval did not impact the subject matter 

of the proceeding. Nor did it prevent Loyd from submitting 

another application for approval. Loyd’s case is retained for 

further action. Absent an order actually dismissing the application, there is no final and appealable order from which 

Loyd can appeal. We conclude that the compensation court’s 

order of disapproval, standing alone, is not a final, appealable order.

Nebraska Rules of Professional Conduct.

[6] The Nebraska Rules of Professional Conduct do not, as 

Loyd suggests, authorize appellate jurisdiction over adverse 

rulings on claims involving privilege. Comment 11 of § 3-501.6 

provides:

A lawyer may be ordered to reveal information relating 

to the representation of a client by a court or by another 

tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent 

informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous 

claims that the order is not authorized by other law or 

that the information sought is protected against disclosure by the attorney-client privilege or other applicable 

law. In the event of an adverse ruling, the lawyer must 

consult with the client about the possibility of appeal to 

the extent required by Rule 1.4. Unless review is sought, 

however, paragraph (b)(4) permits the lawyer to comply 

with the court’s order.

[7] Comment 11 does not confer appellate jurisdiction. The 

right of appeal in Nebraska is “‘purely statutory.’”11 Comment 

11 Heckman, supra note 3, 296 Neb. at 461, 894 N.W.2d at 299 (quoting 

Huskey v. Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014)).
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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

LOYD v. FAMILY DOLLAR STORES OF NEB.

Cite as 304 Neb. 883

11 merely requires the attorney to consult with the client about 

the possibility of appeal.

[8] Moreover, in the context of discovery orders, we have 

held that an interlocutory order compelling the production of 

documents for which a claim of privilege is asserted is appealable neither as a final order nor under the collateral order 

doctrine.12 We have concluded that other available mechanisms 

such as mandamus actions and authorized appeals from interlocutory civil contempt orders are appropriate and “‘serve 

as useful “safety valve[s]” for promptly correcting serious 

errors’” in claims involving privileged information.13 Here, 

Loyd asserts a claim of privilege; however, the compensation 

court’s order was not a final, appealable order. Hence, there is 

no appellate jurisdiction in this case.

CONCLUSION

The order from which the parties appeal was not a final, 

appealable order. Accordingly, we dismiss this appeal for lack 

of jurisdiction.

Appeal dismissed.

12 See, Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006); 

Brozovsky v. Norquest, 231 Neb. 731, 437 N.W.2d 798 (1989).

13 Schropp Indus. v. Washington Cty. Atty.’s Ofc., 281 Neb. 152, 160, 794 

N.W.2d 685, 693 (2011) (quoting Mohawk Industries, Inc. v. Carpenter, 

558 U.S. 100, 130 S. Ct. 599, 175 L. Ed. 2d 458 (2009)).