Eletech, Inc. v. Conveyance Consulting Group , 308 Neb. 733 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/09/2021 08:08 AM CDT
- 733 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733Eletech, Inc., appellee, v. Conveyance Consulting
Group, Inc., et al., appellants.
___ N.W.2d ___
Filed March 26, 2021. No. S-19-787.
1. Pretrial Procedure: Appeal and Error. Generally, the control of dis-
covery is a matter for judicial discretion, and decisions regarding discov-
ery will be upheld on appeal in the absence of an abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Trial: Waiver: Appeal and Error. The failure to make a timely objec-
tion waives the right to assert prejudicial error on appeal.
4. Appeal and Error. An appellate court will not consider an argument or
theory that is raised for the first time on appeal. Thus, when an issue
is raised for the first time in an appellate court, it will be disregarded
­inasmuch as a lower court cannot commit error in resolving an issue
never presented and submitted to it for disposition.
5. Trial: Waiver: Appeal and Error. One may not waive an error, gamble
on a favorable result, and, upon obtaining an unfavorable result, assert
the previously waived error. For that reason, an issue not presented to or
decided on by the trial court is not an appropriate issue for consideration
on appeal.
6. Rules of the Supreme Court: Attorney and Client. Neb. Ct. R. of
Prof. Cond. § 3-501.16(b) allows a lawyer to withdraw from represent-
ing a client under certain circumstances.
7. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc.
§ 6-337(a) allows a party to apply for an order compelling discovery
if a deponent provides an evasive or incomplete answer to discov-
ery requests.
8. Rules of the Supreme Court: Attorney and Client: Notice. Neb. Ct.
R. § 6-1510 provides that upon a motion for withdrawal and notice to
- 734 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733all counsel and the client involved, an attorney who has appeared of
record in a case may be given leave to withdraw for good cause shown
after filing with the clerk the motion, notice of hearing, and proof of
service upon counsel and the client involved.
9. Notice: Time. Under Neb. Rev. Stat. § 25-910 (Reissue 2016), where
notice of a motion is required, it must be served a reasonable time
before the hearing.
10. Rules of the Supreme Court: Pretrial Procedure. A party’s failure
to answer properly served interrogatories or to seasonably supplement
discovery responses may be grounds for sanctions imposed under Neb.
Ct. R. Disc. § 6-337.
11. ____: ____. Sanctions under Neb. Ct. R. Disc. § 6-337 exist not only
to punish those whose conduct warrants a sanction, but also to deter
those, whether a litigant or counsel, who might be inclined or tempted to
frustrate the discovery process by their ignorance, neglect, indifference,
arrogance, or sharp practice adversely affecting a fair determination of a
litigant’s rights or liabilities.
12. Rules of the Supreme Court: Pretrial Procedure: Appeal and Error.
An appropriate sanction under Neb. Ct. R. Disc. § 6-337 is deter-
mined in the factual context of a particular case and is initially left to
the discretion of the trial court, whose ruling on a request for sanc-
tion or a sanction imposed will be upheld in the absence of an abuse
of discretion.
13. Rules of the Supreme Court: Pretrial Procedure. In determining
whether a sanction under Neb. Ct. R. Disc. § 6-337 is appropriate,
relevant factors include the prejudice or unfair surprise suffered by the
party seeking sanctions, the importance of the evidence which is the root
of the misconduct, whether the court considered less drastic sanctions,
the sanctioned party’s history of discovery abuse, and whether the sanc-
tioned party acted willfully or in bad faith.
14. ____: ____. Dismissal may be an appropriate sanction under Neb. Ct. R.
Disc. § 6-337 for an inexcusably recalcitrant party.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., and Jeff R.
Dingwall, of Eight & Sand, for appellants.
Brian T. McKernan and Jay Koehn, of McGrath, North,
Mullin & Kratz, P.C., L.L.O., for appellee.
- 735 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
Conveyance Consulting Group, Inc. (CCG); Jones Consulting
Inc.; and Jonathan Jones (collectively appellants) appeal from
an adverse $407,187.46 judgment entered by the district court.
Eletech, Inc., filed a complaint against appellants, alleging that
former Eletech vice president Jones engaged in self-dealing
and interfered with business opportunities. As a discovery
sanction, the court entered judgment in favor of Eletech and
dismissed appellants’ counterclaim. Appellants appeal.
BACKGROUND
On October 7, 2016, Eletech filed a complaint in the district
court for Douglas County against appellants, alleging Jones, as
an officer and employee of Eletech, engaged in self-dealing and
diverted corporate opportunities to CCG and Jones Consulting,
companies which Jones formed while employed with Eletech.
Eletech’s complaint asserted seven causes of action, including
(1) breach of duty of loyalty, (2) breach of fiduciary duty—
usurping corporate opportunity and self-dealing, (3) tortious
interference, (4) unjust enrichment, (5) deceptive acts and trade
practices, (6) theft by deception, and (7) aiding and abetting.
On November 18, appellants filed an answer and counterclaim.
The counterclaim listed four causes of action: (1) breach of
contract, (2) nonpayment of wages under the Nebraska Wage
Payment and Collection Act, (3) quantum meruit, and (4)
unjust enrichment.
On January 3, 2017, Eletech served appellants with requests
for production of documents and interrogatories. On March
6, appellants served written responses to those interrogatories
and requests for production of documents. In December 2017,
the court entered a proposed scheduling order which set a
deadline for fact discovery to be completed by June 1, 2018,
and advised the parties they must be prepared for trial by
August 3.
- 736 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733On May 16, 2018, appellants filed an amended and supple-
mental counterclaim which added causes of action of breach
of fiduciary duty, conversion, and breach of oral contract. On
May 29, the district court issued an amended scheduling order,
ordering fact discovery to be completed by October 1 and dis-
positive pretrial motions to be filed by November 2. The order
advised that the parties must be prepared for trial by December
3. Due to multiple scheduling conflicts, the pretrial conference
was continued to August 27, and later to October 10.
On November 21, 2018, Eletech filed a motion to compel
appellants to respond to particular interrogatories and requests
for production of documents. On December 21, appellants’
counsel moved for leave to withdraw. According to the motion,
counsel made several attempts to remedy “the situation” and
had given appellants reasonable warning that counsel would
withdraw if the situation were not remedied. The motion also
stated that neither appellants nor Eletech would be prejudiced
if the motion were granted. The motion served appellants with
a notice for hearing set for January 3, 2019.
Though not in our record, the court held a hearing con-
cerning the motion to withdraw and the motion to compel
on January 3, 2019. The next day, the court entered an order
­noting that all parties appeared and that an off-the-record
discussion was held in chambers. The court then sustained
the motion to withdraw and continued the motion to compel
to January 17, to be held in conjunction with a status confer-
ence. The court ordered appellants to appear either personally
or through new counsel. On January 17, appellants appeared,
unrepresented, and verbally requested a continuance to allow
them more time to secure new counsel. In response, the court
continued the hearing on the motion to compel and the sta-
tus hearing to February 14. The court advised Jones that he
could represent himself in an individual capacity, but that he
would need to secure counsel to represent CCG and Jones
Consulting. The court also reminded the parties of the April
22 trial date.
- 737 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733On February 14, 2019, the court held a hearing on the
motion to compel and a status hearing. Appellants failed to
appear. As a result, on February 19, the court entered an order
sustaining Eletech’s motion to compel and ordered appellants
to provide full and complete discovery responses within 10
days. Additionally, the court’s order listed the specific inter-
rogatories and discovery requests that needed full and complete
answers/responses. In its order, the court admonished appel-
lants that failure to comply with its order would result in sanc-
tions, which could include an entry of liability against appel-
lants and a dismissal of their counterclaim, with prejudice.
On March 28, 2019, Eletech filed a motion for sanctions,
including a request for judgment and dismissal of the counter-
claim, with prejudice. In its motion, Eletech alleged appellants
failed to comply with the court’s February 19 order to fully
respond to outstanding discovery. The motion for sanctions
was scheduled for hearing on April 10.
On April 10, 2019, Jones appeared, pro se, and requested
a continuance for purposes of obtaining new counsel. Jones
informed the court that he had not yet complied with the
court’s order to compel, but that he planned to. The court
granted Jones’ request for a continuance and reset the hearing
on sanctions for May 9.
On May 9, 2019, the court held a hearing on the motion for
sanctions. Appellants were represented at the hearing by new
counsel, Rodney Gnuse. Gnuse informed the court that although
his appearance was limited to the hearing, if the hearing did
not result in a dismissal of the case, he would also help appel-
lants in the preparation of supplemental discovery responses
and in trying to persuade an attorney to represent appellants
during the remainder of the proceedings. The court continued
the hearing on the motion for sanctions for 60 days.
On July 8, 2019, Gnuse filed a motion for withdrawal as
limited-representation counsel for appellants. Gnuse’s motion
stated that “[he] believe[d] that given the facts involved, [he
had] accomplished as much as [he could] for [appellants]
- 738 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733and [would] not be able to continue in even [his] limited rep-
resentation of them.”
On July 11, 2019, the court held a hearing on the motion to
withdraw. Gnuse and counsel for Eletech appeared, but appel-
lants did not. At the hearing, Gnuse explained to the court
that he was able to secure a conditional offer from another
attorney to represent appellants as long as appellants demon-
strated their willingness to consistently cooperate and follow
through with counsel regarding the case. However, accord-
ing to Gnuse, Jones failed to cooperate with him, failed to
answer telephone calls, and failed to show up for meetings.
As a result, the attorney that Gnuse had arranged for appel-
lants withdrew his offer to assist. The court granted Gnuse’s
motion to withdraw and then proceeded with the hearing on
the motion for sanctions.
On July 15, 2019, the court granted Eletech’s motion for
sanctions and awarded Eletech judgment in the amount of
$407,187.46. The court found that Jones was liable to Eletech
for the entire judgment, that Jones Consulting was jointly
and severally liable with Jones to Eletech in the amount of
$213,435, and that CCG was jointly and severally liable with
Jones to Eletech in the amount of $39,687.97. The court also
ordered postjudgment interest at the rate of 4.573 percent.
The court dismissed appellants’ supplemental counterclaim,
with prejudice.
Jones, as a self-represented litigant, filed this appeal on
behalf of himself, CCG, and Jones Consulting. We note, how-
ever, that as a self-represented litigant, Jones could not file
an appeal on behalf of CCG and Jones Consulting. 1 After the
notice of appeal was filed, new counsel entered an appearance
for Jones, CCG, and Jones Consulting. Jones filed a brief as an
appellant, and CCG and Jones Consulting filed a nearly identi-
cal brief as “Cross-Appellees.”
1
See, Neb. Rev. Stat. § 7-101 (Reissue 2012); Steinhausen v. HomeServices
of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015).
- 739 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733ASSIGNMENTS OF ERROR
Appellants assign, restated and consolidated, that the dis-
trict court abused its discretion in (1) granting the withdrawal
of appellants’ first counsel of record without considering all
relevant factors; (2) granting Eletech’s motion to compel dis-
covery after permitting appellants’ first counsel to withdraw;
(3) granting the withdrawal of appellants’ second counsel of
record without considering all relevant factors; and (4) dismiss-
ing appellants’ counterclaim with prejudice as a sanction for
failing to comply with the discovery order, without findings
of willfulness and bad faith, a finding that appellants actually
failed to comply with the discovery order, notice to appellants,
and consideration of lesser sanctions.
STANDARD OF REVIEW
[1,2] Generally, the control of discovery is a matter for
judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion. 2 An
abuse of discretion occurs when a trial court’s decision is based
upon reasons that are untenable or unreasonable or if its action
is clearly against justice or conscience, reason, and evidence. 3
ANALYSIS
[3-5] We begin our analysis by reciting familiar proposi-
tions concerning an appellant’s duty to raise objections before
the trial court and the consequences of failing to do so. Our
case law is clear that the failure to make a timely objection
waives the right to assert prejudicial error on appeal. 4 An appel-
late court will not consider an argument or theory that is raised
for the first time on appeal. 5 Thus, when an issue is raised
2
Yeransian v. Willkie Farr, 305 Neb. 693, 942 N.W.2d 226 (2020); Eddy v.
Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020).
3
Id.4
Ecker v. E & A Consulting Group, 302 Neb. 578, 924 N.W.2d 671 (2019);
State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
5
State v. Kruse, 303 Neb. 799, 931 N.W.2d 148 (2019); First Express Servs.
Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 (2013).
- 740 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733for the first time in an appellate court, it will be disregarded
inasmuch as a lower court cannot commit error in resolving
an issue never presented and submitted to it for disposition. 6
Further, we have repeatedly said that one may not waive an
error, gamble on a favorable result, and, upon obtaining an
unfavorable result, assert the previously waived error. 7 For
that reason, an issue not presented to or decided on by the trial
court is not an appropriate issue for consideration on appeal. 8
Withdrawal of First Counsel
Appellants argue that the court abused its discretion in
allowing appellants’ initial counsel to withdraw without con-
sidering relevant factors such as the pending motion to compel,
whether counsel had given appellants notice of withdrawal,
whether appellants had adequate time to secure new counsel,
any delays that would be caused by such withdrawal, and
whether any party would be prejudiced by the withdrawal.
Eletech argues that appellants’ failure to object to the motion
to withdraw waives their arguments on appeal. Additionally,
Eletech argues that granting the motion to withdraw was not an
abuse of discretion.
[6] Neb. Ct. R. of Prof. Cond. § 3-501.16(b) allows a lawyer
to withdraw from representing a client if
(1) withdrawal can be accomplished without material
adverse effect on the interests of the client;
....
(5) the client fails substantially to fulfill an obligation
to the lawyer regarding the lawyer’s services and has
been given reasonable warning that the lawyer will with-
draw unless the obligation is fulfilled;
....
(7) other good cause for withdrawal exists.
6
Ecker, supra note 4; First Express Servs. Group, supra note 5; Collins,
supra note 4.
7
Ecker, supra note 4; Collins, supra note 4.
8
Id.
- 741 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733Additionally, under § 3-501.16(c), a lawyer must comply
with applicable law requiring notice to or permission of a tri-
bunal when terminating a representation.
As previously mentioned, the motion to withdraw of appel-
lants’ first counsel was filed on December 21, 2018. A notice
of hearing was incorporated in the motion and set a hearing
date for January 3, 2019. The motion and the notice were
served upon all the parties, including appellants, by U.S. mail
on December 21. Though we have no bill of exceptions from
the hearing, the court’s order indicates that all parties appeared
and that the court sustained the motion.
Nothing in our record indicates that appellants argued
before the district court that they were not given reasonable
notice of the motion, that they objected to the motion, or
that they would be prejudiced by the granting of the motion.
Appellants’ failure to make a timely objection to the motion
to withdraw waived their right to assert prejudicial error
on appeal.
Additionally, the record indicates that the court continued
the pending motion to compel to allow appellants time to
obtain new counsel. As such, based upon the record before us,
the court did not abuse its discretion in granting the motion
to withdraw.
This assignment of error is without merit.
Motion to Compel
Appellants next argue that the district court abused its dis-
cretion in granting Eletech’s motion to compel after it had
permitted appellants’ first counsel to withdraw. Additionally,
appellants contend that Eletech waited too long to file its
motion to compel, that Eletech failed to describe with reason-
able specificity the information it sought to compel, and that
the court failed to identify any failure of appellants in respond-
ing to discovery. Eletech again counters that appellants failed
to raise these issues before the trial court and, as such, have
waived their arguments on appeal.
- 742 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733[7] Under Neb. Ct. R. Disc. § 6-337(a),
[a] party, upon reasonable notice to other parties and all
persons affected thereby, may apply for an order compel-
ling discovery as follows:
....
(2) . . . If a deponent fails to answer a question pro-
pounded or submitted under Rule 30 or 31, or a corpora-
tion or other entity fails to make a designation under Rule
30(b)(6) or 31(a), or a party fails to answer an interroga-
tory submitted under Rule 33, or if a party, in response
to a request for inspection submitted under Rule 34, fails
to respond that inspection will be permitted as requested
or fails to permit inspection as requested, the discovering
party may move for an order compelling an answer, or a
designation, or an order compelling inspection in accord­
ance with the request. . . .
(3) . . . For purposes of this subdivision an evasive or
incomplete answer is to be treated as a failure to answer.
Eletech’s motion to compel was filed on November 21,
2018, and set forth the specific answers to interrogatories and
responses to requests for production of documents that Eletech
contended were incomplete and/or deficient. A notice of hear-
ing was filed on November 28, setting the matter for hearing on
January 3, 2019. The court continued the matter from January
3 to January 17. At that time, the court ordered appellants to
appear personally or through new counsel.
On January 17, 2019, Jones appeared and verbally moved for
a continuance of the motion to compel. The court granted the
motion to continue and rescheduled the hearing on the motion
to compel for February 14. The court also advised Jones that
though he could represent himself in his individual capacity,
CCG and Jones Consulting would need to secure counsel.
Though not in our record, it appears that a hearing on the
motion to compel was held on February 14, 2019. On February
19, the district court entered an order granting the motion.
In doing so, the court noted that appellants did not appear at
- 743 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733the hearing. Additionally, the court’s order listed the specific
interrogatories and requests for production that appellants
needed to provide full and complete answers and responses to
and ordered that appellants comply within 10 days. Lastly, the
order stated that if appellants failed to comply with the order,
appellants would be subject to sanctions, which could include
a finding of liability against them on Eletech’s claims and a
dismissal of appellants’ counterclaim.
Again, there is nothing in our record which indicates appel-
lants argued to the district court that Eletech waited too long
to file its motion to compel or that Eletech failed to describe
with reasonable specificity the information it sought to compel.
In fact, when Jones did appear on the motion to compel, he
informed the court that he intended to provide the discovery
but merely needed additional time to do so. As such, these
alleged errors have been waived by appellants. An appellate
court will not consider an issue on appeal that was not passed
upon by the trial court. 9
In regard to whether the court failed to identify any failure
of appellants in responding to discovery, the record indicates
that the court ordered appellants to provide complete and full
responses to interrogatories Nos. 9 through 11, 13, 15 through
17, and 19, together with requests for production Nos. 1, 2,
4, 5, and 8 through 15, within 10 days. The court’s order
adequately informed appellants as to what additional discovery
was being requested and provided appellants time to supply
the additional discovery. Accordingly, the district court did not
abuse its discretion in sustaining Eletech’s motion to compel.
This assignment of error is without merit.
Withdrawal of Second Counsel
Appellants also argue that the court abused its discretion
when it allowed their second counsel, Gnuse, to withdraw
from representation without considering relevant factors such
as the pending motion for sanctions and whether Gnuse had
9
Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019).
- 744 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733given proper notice of withdrawal. Eletech contends that these
arguments have been waived by appellants’ failure to raise
them before the district court. Eletech also contends that appel-
lants were not prejudiced by the court’s order allowing Gnuse
to withdraw.
As mentioned above, § 3-501.16(b)(5) of the rules of profes-
sional conduct allows a lawyer to withdraw from representing
a client if the client fails substantially to fulfill an obligation to
the lawyer regarding the lawyer’s services and has been given
reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled.
The record shows that Gnuse’s representation of appel-
lants was limited to (1) representing them at the May 9, 2019,
hearing; (2) assisting them in the preparation of supplemental
discovery responses; and (3) attempting to persuade an attor-
ney to represent them for the rest of the litigation proceedings.
On July 8, Gnuse filed his motion to withdraw, in which he
alleged that as much as he could, he had accomplished all of
the limited representation he had agreed to with appellants.
That same day, Gnuse mailed to appellants, by U.S. mail and
by email, the motion and a notice of hearing setting the matter
for July 11.
At the July 11, 2019, hearing, Gnuse informed the court that
although he had prepared supplemental discovery answers, he
did not feel comfortable signing them, because he had not had
a chance to discuss them with Jones. Gnuse also indicated that
he had difficulties communicating with Jones during the month
of June 2019; that he could not get Jones to approve the sup-
plemental discovery Gnuse had compiled; and that Jones would
not be present at the hearing, because he was out of state on a
business trip. Gnuse also informed the court that he had lined
up a conditional offer from another attorney to represent appel-
lants, contingent on Jones’ showing initiative, cooperation, and
followthrough in the case. However, this attorney withdrew his
offer when Jones failed to answer telephone calls and failed to
cooperate or be involved in the case.
- 745 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733[8,9] As to the issue of notice, Neb. Ct. R. § 6-1510 provides
that upon a motion for withdrawal and notice to all counsel and
the client involved, an attorney who has appeared of record in
a case may be given leave to withdraw for good cause shown
after filing with the clerk the motion, notice of hearing, and
proof of service upon counsel and the client involved. Further,
under Neb. Rev. Stat. § 25-910 (Reissue 2016), where notice of
a motion is required, it must be served a reasonable time before
the hearing.
Here, Gnuse filed his motion to withdraw and notice of
hearing on July 8, 2019. That same day, Gnuse provided a copy
of the motion and notice of hearing to appellants by email.
Additionally, Gnuse set the motion for hearing at the same
date and time as the previously scheduled motion for sanctions
was to be heard. Nothing in our record indicates that appel-
lants were not given notice of the hearing, nor do they argue
on appeal that notice was not actually received. As a result,
the court did not err in its determination of reasonable notice
to appellants.
Appellants also contend that the court failed to consider
the pending motion for sanctions before granting Gnuse’s
withdrawal. However, once again, that issue was not raised by
appellants before the district court. As such, the argument has
been waived. This assignment of error is without merit.
Motion for Sanctions
Lastly, appellants argue that the court abused its discretion
in granting Eletech’s motion for sanctions and in dismiss-
ing appellants’ counterclaim with prejudice as a sanction.
Specifically, appellants contend that the court abused its discre-
tion when it dismissed their counterclaim without finding that
they acted willfully and in bad faith, failed to comply with the
discovery order, were provided reasonable notice, and should
not appropriately receive a lesser judgment. Eletech contends
that due to appellants’ repeated and unjustified failure to com-
ply with the court’s order to compel, the sanctions imposed by
the court were not an abuse of discretion.
- 746 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733Section 6-337(b) of the discovery rules, regarding a failure
to comply with an order compelling discovery, provides:
(2) . . . If a party or an officer, director, or man-
aging agent of a party or a person designated under
Rule 30(b)(6) or 31(a) to testify on behalf of a party fails
to obey an order to provide or permit discovery, includ-
ing an order made under subdivision (a) of this rule or
Rule 35, the court in which the action is pending may
make such orders in regard to the failure as are just, and
among others the following:
(A) An order that the matters regarding which the order
was made or any other designated facts shall be taken to
be established for the purposes of the action in accord­
ance with the claim of the party obtaining the order;
....
(C) An order striking out pleadings or parts thereof, or
staying further proceedings until the order is obeyed, or
dismissing the action or proceeding or any part thereof,
or rendering a judgment by default against the disobedi-
ent party.
[10-12] This court has previously held that a party’s failure
to answer properly served interrogatories or to seasonably
supplement discovery responses may be grounds for sanctions
imposed under § 6-337. 10 In Eddy v. Builders Supply Co., 11 we
explained that sanctions under § 6-337 exist not only to pun-
ish those whose conduct warrants a sanction, but also to deter
those, whether a litigant or counsel, who might be inclined or
tempted to frustrate the discovery process by their ignorance,
neglect, indifference, arrogance, or sharp practice adversely
affecting a fair determination of a litigant’s rights or liabili-
ties. We also recognized that an appropriate sanction under
§ 6-337 is determined in the factual context of a particular case
and is initially left to the discretion of the trial court, whose
10
Eddy, supra note 2.
11
Id.- 747 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733ruling on a request for sanction or a sanction imposed will be
upheld in the absence of an abuse of discretion. 12
[13,14] In determining whether a sanction under § 6-337
is appropriate, we have noted that relevant factors include
the prejudice or unfair surprise suffered by the party seeking
sanctions, the importance of the evidence which is the root
of the misconduct, whether the court considered less drastic
sanctions, the sanctioned party’s history of discovery abuse,
and whether the sanctioned party acted willfully or in bad
faith. 13 Moreover, we have also said that dismissal may be an
appropriate sanction under § 6-337 for an “‘inexcusably recal-
citrant’” party. 14
The record before us indicates that Eletech’s motion to
compel was filed nearly 8 months prior to the entry of sanc-
tions. During that period, the court held six hearings in which
the issue of discovery was discussed. At several of the hear-
ings, appellants assured the court that they would comply with
the requested discovery but just needed more time. On three
occasions, the court warned appellants that failure to comply
with the requested discovery could result in sanctions, includ-
ing the court’s entering judgment against appellants and dis-
missing appellants’ counterclaim. Additionally, it is clear that
appellants were not responsive to their counsel, which caused
unnecessary delays in complying with the court’s order to com-
pel. The district court’s decision to grant the motion for sanc-
tions and enter judgment against appellants was a direct result
of appellants’ failure to provide full and complete discovery
responses over the course of nearly 5 months, even after mul-
tiple stern warnings from the court. The record indicates that
appellants had become an inexcusably recalcitrant party. As
a result, based upon the record before us, the court did not
12
Id.
13
Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016).
14
Id. at 437, 879 N.W.2d at 374. See Stanko v. Chaloupka, 239 Neb. 101,
474 N.W.2d 470 (1991).
- 748 -
Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
ELETECH, INC. v. CONVEYANCE CONSULTING GROUP
Cite as 308 Neb. 733abuse its discretion in entering judgment against appellants and
dismissing their counterclaims.
This assignment of error is without merit.
CONCLUSION
Appellants’ claims that the district court abused its discre-
tion in granting motions to withdraw, a motion to compel, and
a motion for sanctions were either waived or are without merit.
As a result, the judgment of the district court is affirmed.
Affirmed.