Chelli v. Baca ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
CHELLI V. BACA
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MARLENE E. CHELLI, APPELLANT,
V.
BUFFY BACA ET AL, APPELLEES.
Filed January 25, 2022. Nos. A-20-892, A-21-052.
Appeals from the District Court for Douglas County: JAMES T. GLEASON, Judge. Affirmed.
Marlene E. Chelli, pro se.
Thomas E. Horgan and Michael L. Moran, of Engles, Ketcham, Olson & Keith, P.C., for
appellees.
MOORE, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
I. INTRODUCTION
Marlene E. Chelli appeals from the Douglas County District Court’s dismissal of her action
against Legacy Primary School, LLC, and its owners/administrators, Buffy Baca and Kelly
Pedersen (collectively the school). The district court dismissed Chelli’s action with prejudice as a
sanction for her noncompliance with the court’s prior order directing Chelli to respond “fully and
properly” to the school’s discovery requests within 20 days. Finding no abuse of discretion, we
affirm.
II. BACKGROUND
1. DISTRICT COURT PROCEEDINGS
Chelli, pro se, filed an action in August 2019, individually and on behalf of her two minor
children, in the district court against the school; an amended complaint was filed in December.
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Chelli made numerous allegations, essentially claiming the school denied her access to her two
children (approximately ages 10 and 11), denied her access to the children’s school records and
activities, denied her requests regarding medication for the children, and interfered with “the
proper” education of the children and their relationship with her. She claimed the school frustrated
her rights as a parent and publicly attempted to humiliate her and demean her in the presence of
her children. She alleged that such actions by the school violated various constitutional rights.
Chelli requested a variety of relief, including various findings against the school; tuition
reimbursement; payment for tutors, therapists, physicians, and speech specialists as needed;
suspending Baca’s and Pedersen’s licenses; costs of the action; providing to Chelli the children’s
educational and medical records in the school’s possession; and to “stop denigrating the character
of the Plaintiffs, to stop stalking, harassing and interfering with the Plaintiff[‘s] civil rights as a
mother and US citizen in with [sic] the relation to her minor children and also to stop interfering
with her minor children[‘s] education[al] rights, medical rights and their rights in general and their
relationship with their mother.”
In an answer filed in January 2020, the school denied Chelli’s allegations, and also pointed
out that the children’s father had sole legal and physical custody of the children and had final
authority on matters concerning the children’s education pursuant to a Douglas County District
Court order. The school also affirmatively stated that due to Chelli’s behavior, such as “losing
control, outbursts of temper and threatening behavior towards members of the staff of Legacy
School, [Chelli] has been issued a ban and bar letter, from the private property of the Legacy
School.” The school requested that Chelli’s amended complaint be dismissed because it was
frivolous and made in bad faith pursuant to Neb. Rev. Stat. § 25-824 (Reissue 2016).
A scheduling order was entered by the district court on May 15, 2020. It directed that
discovery be completed by August 10, and that by September 9, depositions were to be completed
and the parties were to be ready for trial. The order further indicated that a status conference would
be scheduled by the court prior to setting a trial date.
On August 6, 2020, the school filed a motion for a protective order indicating that “in the
course of discovery” the school anticipated that confidential information would be requested and
produced, including documents that would contain private or personally identifiable information
related to minor children, and that “a protective order is in the interests of justice.” A notice of
hearing was included with the motion setting the matter to be heard on August 11 at 11:30 a.m.
On August 7, Chelli filed a document titled “Plaintiff’s Objections,” which objected to answering
“the late request of discovery” made by the school on August 4 which she received on August 7;
these included the school’s interrogatories, request for production of documents, and request for
admissions. She also objected to any continuance regarding discovery and to the issuance of any
protective orders.
On August 11, 2020, at 10:09 a.m., just prior to the hearing scheduled on the school’s
motion for protective order, Chelli filed via facsimile a “Motion for further expedite reliefs,
Protective orders in Plaintiff’s favor and AFFIDAVIT in support of Plaintiff’s request, complaints,
and objections.” In that document, Chelli represented that there was a pending paternity case in
Douglas County and that “these matters are private.” She reiterated her complaints about the school
and indicated she had served interrogatories and requested production of documents from the
school on July 9 and “they refused to answer or produce important documents for me like my
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minor children[’s] educational records to this present day.” She also alleged that the school’s
“request for discoveries was very late” and there was “no time left for [her to] properly review or
answer the documents,” and that it would take her “lots of extra time out of work” and “lots of
extra time and money.” No notice of hearing was included with Chelli’s motion.
The school’s motion for a protective order was taken up at the hearing scheduled on August
11, 2020. The school argued that there was “personally-identifying information” regarding Chelli’s
children which the school wanted to protect. The school pointed out that the children’s father had
“sole custody” and the father did not want “any of this information leaving this litigation.” The
court asked Chelli about the status of the children’s custody and indicated it needed to review that
court file; the hearing was then continued.
On August 24, 2020, the school filed a “Motion to Compel,” in which it represented that
discovery requests were served on Chelli on August 4 and on August 7 Chelli “served boilerplate,
meritless, and nonsensical objections to [the school’s] discovery requests and improperly filed
these objections with the Court.” The school further represented that on August 11, it sent a “good
faith discovery letter” to Chelli “requesting clarifications, supplements, and reasonings for [her]
meritless objections.” No response to that letter had been received from Chelli. The school added
that Chelli had “refused to proffer any reasoning for the withholding of documentation and
information requested by [the school], provide any rationalization for objections to [the school’s]
discovery requests, and/or comply with the Nebraska Rules of Discovery.” The school asked the
court to enter an order compelling Chelli “to fully and properly respond” to its discovery requests.
A “Notice of Hearing” was included in the motion indicating the matter would be heard on August
25 at 1:30 p.m.
On August 25, 2020, at 11:32 a.m., a couple hours before the scheduled hearing on the
school’s motion to compel, Chelli filed a “Motion to Compel and Supporting Affidavit and
Objections.” Chelli represented that she served discovery on the school on July 9, and that on
August 6, the school responded with “their objections and their refusal to answer and produce
documents that legally belongs [sic] to the Plaintiffs.” Chelli further claimed that on August 24,
she had served the school with her objections and answers to their requests, and that the school
was “requesting documents under their possession . . . and requesting information and documents
they are fully aware of and information and documents in violation of privacy laws.” Chelli
requested an order compelling the school to comply with her discovery requests. There was no
notice of hearing included with Chelli’s motion.
On August 25, 2020, at 1:30 p.m., the district court indicated they were “going to pick up
where we left off” at the previous hearing. It noted Chelli’s motion for expedited relief and the
school’s request for a protective order; the school indicated there was also a motion pending (not
in our record) seeking to continue discovery deadlines because the school’s prior counsel had
withdrawn “about a month ago.” The court stated it had reviewed the “whole file” of the
proceedings in Douglas County case No. CI 14-130, and it concluded that the modification order
entered in that case on May 8, 2018, prevented the present action from being prosecuted by Chelli
on behalf of the minor children. However, the court added that Chelli “has a cause of action or at
least a colorable claim against the school for information relating to her children. So we’re going
to proceed on that basis.” The court confirmed with Chelli that she would keep any responses to
her requests for discovery confidential, and then indicated it would issue the protective order
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requested by the school. The court then asked Chelli, “Why are you here?” Chelli responded,
“Because [the school is] refusing to give me those documents.” The court asked why Chelli was
not addressing this in “the other lawsuit,” and Chelli responded, “Because the other judge says
you’re going to deal with this lawsuit.” The court stated that it was going to confer with the other
judge, “and if appropriate” would ask the other judge “to take this case and deal with it all. It’s the
same thing.” The court added:
I read the other file. I know what’s going on in the other file and I don’t like the way things
are being done. I’m not going to be a party to it and make a mess of your children’s lives
because you’re dealing with issues relating to your children between two different judges
who are looking at different things. I’m not going to do that.
....
I’m going to conclude this hearing now. You may anticipate, after I’ve conferred
with [the other judge], this matter will be consolidated with the pending paternity action
before [the other judge] and all issues relating to evidence relating to the children which
may come from the school will be dealt with by [the other judge], not by me. No end-runs
here.
On September 1, 2020, the district court entered an order granting the school’s motion to
compel and ordering Chelli to “fully and properly” respond to the school’s discovery within 20
days. Also on September 1, the court entered a separate order referring to the “Order of
Modification” issued in Douglas County case No. CI 14-130 on May 8, 2018, which granted sole
legal and physical custody of the minor children at issue to their father. The September 1, 2020,
order concluded that Chelli lacked standing to sue on behalf of the children and dismissed any
claims brought on their behalf. Finally, on September 1, another order was entered granting the
school’s motion to continue trial “in its entirety and all trial and pretrial deadlines shall be
continued” for 120 days from entry of the order. The court also entered a protective order on
September 22 as discussed during the August hearings.
On September 25, 2020, the school filed a “Motion for Sanctions” pursuant to Neb. Ct. R.
Disc. § 6-337 (rev. 2008), requesting an order for dismissal and for sanctions against Chelli for
failure to comply with the district court’s order entered on September 1 related to discovery.
This court’s records indicate that Chelli filed a notice of appeal on October 1, 2020,
attempting to appeal from the September 1 orders noted above. That appeal was docketed at case
No. A-20-718 and a transcript was filed. The school subsequently filed a motion to dismiss for
lack of jurisdiction.
On November 10, 2020, the school filed a motion for summary judgment. On December
2, Chelli filed a document entitled, “Objections and Motion for a Heraing [sic] Pending Appeal to
Refute Defendant Statements.” The document indicated that Chelli wanted “a hearing date pending
appeal to clarify and to refute [the school’s] statements.” Chelli alleged that the school never
informed her of any “post orders or post hearing interactions with the trial court now currently on
appeal,” and that the school was “violating [her] constitutional rights.”
On November 23, 2020, this court dismissed Chelli’s appeal filed at case No. A-20-718 for
lack of jurisdiction due to there being no final, appealable order.
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On December 17, 2020, a hearing before the district court took place on the school’s motion
for summary judgment and motion for sanctions. The court suggested the school begin with the
motion for sanctions. Four exhibits were offered by the school, which were alleged to be the same
exhibits marked A through D at a previous hearing which took place on October 9; the bill of
exceptions for that hearing is not contained in the record before this court. The court directed that
those exhibits be remarked numerically rather than alphabetically. We note, however, that although
the school indicated that exhibit 1 was “the notice of serving defendants’ discovery to Ms. Chelli,”
that is not what is contained in the bill of exceptions as exhibit 1. Rather, exhibit 1 is a copy of
Chelli’s amended complaint. Exhibit 2 is the school’s answer, exhibit 3 is Baca’s affidavit, and
exhibit 4 is a copy of the modification order from case No. CI 14-130. The school claimed that at
the previous hearing it had provided binders with the same exhibits to both the court and Chelli.
Chelli objected, saying she had not received those documents previously. The objection was
overruled and exhibits “1 through 5 [sic]” were received, but as noted, it does not appear that the
exhibits, presumably related to discovery matters, were placed into the record submitted to this
court. Chelli offered exhibits 6, 9, and 10, which were received; they consisted of a fax cover sheet
and two separate notices for status conferences scheduled before the court. Exhibits 7 and 8 were
not received; these included email communications between Chelli and the school regarding
matters related to the children. The school objected on the basis that the exhibits were outside the
scope of the motion for sanctions. The court reminded Chelli that they were addressing only the
motion for sanctions, which related only to whether she “answered accurately discovery issues,
matters, discovery requests,” and indicated that the exhibits offered by the school “show the
requests and [Chelli’s] responses.” We again note, there are no exhibits contained in the record
before this court which relate specifically to discovery matters.
The court asked the school what sanctions it was requesting. The school requested a
sanction “in the amount of $25 per interrogatory, request for production of documents and request
for admissions to Ms. Chelli, as we have not received them. And what has been received is
completely meritless objections.” In response, the court stated:
You’re asking for too little. It is the Court’s view that, one, this action is completely
frivolous; two, the failure to respond appropriately is totally unacceptable, and the sanction
of the Court is to dismiss this action with prejudice. [Attorney for school], prepare an order
to that effect.
Everyone was then excused by the court.
The district court entered an order the next day, December 18, 2020. Citing to Eddy v.
Builders Supply Co., 304 Neb. 804, 817, 937 N.W.2d 198, 209 (2020), the court pointed out that
appropriate sanctions for failure to comply with proper discovery rests with the discretion of the
trial court, and that sanctions exist “not only to punish those whose conduct warrants a sanction
but 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, much worse, sharp
practice adversely affecting a fair determination of a litigant’s rights or liabilities.” The court’s
order stated that Chelli’s action was “entirely and without question frivolous.” Further, Chelli
“repeatedly ignored, disregarded, and neglected to abide by” the discovery rules and the court’s
orders. The court indicated it had provided Chelli “significant leeway” to prosecute the case in
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accordance with its orders and Nebraska law, but she had “failed to do so.” The court dismissed
the action with prejudice.
2. APPEALS FROM DECEMBER 18, 2020, ORDER
Chelli, pro se, appealed twice from the December 18, 2020, order dismissing her case. This
resulted in appeals filed in this court as cases Nos. A-20-892 and A-21-052; this court consolidated
the two appeals for purposes of briefing and disposition. In case No. A-20-892, Chelli’s notice of
appeal was filed in the district court on December 17, 2020, which was the day the district court
orally pronounced its decision dismissing the case; the written order was not entered until the next
day on December 18. Pursuant to Neb. Rev. Stat. § 25-1912(2) (Cum. Supp. 2020), “A notice of
appeal . . . filed . . . after the announcement of a decision or final order but before entry of the
judgment, decree, or final order shall be treated as filed . . . after the entry of the judgment, decree,
or final order and on the date of entry.” Accordingly, we treat Chelli’s notice of appeal in case No.
A-20-892 as being timely filed on December 18, 2020.
In case No. A-21-052, Chelli’s notice of appeal was filed in the district court on January
19, 2021. Neb. Ct. R. App. P. § 2-101(C) (rev. 2021) states that multiple appeals from the same
case are prohibited and once the first notice of appeal is filed, “any attempt to appeal thereafter
made by any party to the action shall be filed in the existing case and not separately docketed.” It
is unclear why the second appeal was separately docketed. Nevertheless, since 30 days following
the final order fell on Sunday, January 17, 2021, and Monday, January 18, was a holiday, Chelli’s
second notice of appeal was also timely. As noted, the two appeals have been consolidated.
III. ASSIGNMENTS OF ERROR
Chelli’s “Assigment [sic] of Errors” is placed in the table of contents of her brief. Neb. Ct.
R. App. P. § 2-109(D)(1) (rev. 2014) requires that an appellant’s brief contain specific sections,
which are to be placed “under the appropriate headings, and in the order indicated.” Assignments
of error are to be located after the statement of the case and preceding the propositions of law. See
id. Therefore, Chelli’s placement of her assigned errors in her brief’s table of contents is not
compliant with appellate court rules. Depending on the particulars of each case, failure to comply
with the mandates of § 2-109(D) may result in an appellate court waiving the error, proceeding on
a plain error review only, or declining to conduct any review at all. Great Northern Ins. Co. v.
Transit Auth. of Omaha, 308 Neb. 916, 958 N.W.2d 378 (2021). The assignments of error section
is one of the most critical sections of an appellant’s or cross-appellant’s brief. Id. It gives the
opposing party notice of what alleged errors to respond to and advises the appellate court of what
allegations of error by the trial court it has been called upon to address. Id.Although Chelli placed her assigned errors section in the wrong order in her brief, she
nevertheless included a separate section entitled “Assigment [sic] of Errors,” under which she lists
10 errors allegedly made by the district court. We find this separate list of errors to have sufficiently
provided the school notice of what alleged errors to respond to and informs this court as to what
alleged errors by the district court we are being asked to address.
Chelli assigns, consolidated and restated, that the district court erred by (1) dismissing the
children as plaintiffs; (2) granting the school’s motion to compel discovery without giving her an
opportunity to be heard and present her case; (3) disregarding her motion to compel, and not
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sanctioning the school for its failure and refusal to provide responses to her discovery; (4) granting
the school’s motion to continue discovery deadlines and disregarding her objections without giving
her an opportunity to be heard; (5) issuing a protective order; (6) dismissing the case while an
appeal was pending; and (7) dismissing her case with prejudice. She also claims she was not
provided a copy of the bill of exceptions to properly prepare her brief.
IV. STANDARD OF REVIEW
Generally, the control of discovery is a matter of judicial discretion, and decisions
regarding discovery will be upheld on appeal in the absence of an abuse of discretion. Putnam v.
Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017). Similarly, appellate review of a district court’s
use of inherent power is for an abuse of discretion. Id. 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. Id.V. ANALYSIS
1. TRANSCRIPTS IN MULTIPLE APPEALS
We initially note that the pleadings and orders pertinent to this appeal are contained in
transcripts filed in three separate appeals from the same underlying case filed by Chelli in cases
Nos. A-20-718, A-20-892, and A-21-052. Prior to January 1, 2022, Neb. Ct. R. App. P. § 2-104(D)
(rev. 2008) stated that “[i]f a case has been appealed previously and a transcript filed in the
appellate court in the earlier case, the transcript in the new appeal should contain only pleadings
filed after the issuance of the mandate of this court in the prior case.” Therefore, because of Chelli’s
multiple appeals, transcripts have been filed with pertinent documents spread among the three
different appellate cases. We note that as of January 1, that rule has changed to now allow the
electronic transcript in the new appeal to contain documents found in any transcript in the previous
appeal.
In interwoven and interdependent cases, we may examine our own records and take judicial
notice of the proceedings and judgment in a former action involving one of the parties. See Western
Ethanol Co. v. Midwest Renewable Energy, 305 Neb. 1, 938 N.W.2d 329 (2020). We have further
held that we may take judicial notice of a document, including briefs filed in an appeal, in a
separate but related action concerning the same subject matter in the same court. Id. See, also,
Doerr v. Chaffee, 29 Neb. App. 766, 960 N.W.2d 604 (2021) (transcript from summarily dismissed
earlier appeal considered in subsequent appeal).
Accordingly, the pleadings and orders pertinent to this appeal as described in the
background section are contained in the transcripts filed in cases Nos. A-20-718, A-20-892, and
A-21-52, all of which stem from appeals filed by Chelli from the same underlying district court
case.
2. BILL OF EXCEPTIONS
We also note that while the bill of exceptions for the hearings which took place on August
11 and 25, and December 17, 2020, provide us with a record of what took place during those
hearings, as we indicated earlier, the exhibits referenced at the December 17 hearing on sanctions
do not match up with the exhibits included in the bill of exceptions presently before this court. A
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bill of exceptions is the only vehicle for bringing evidence before an appellate court, and evidence
which is not made a part of the bill of exceptions may not be considered. State v. Ferrin, 305 Neb.
762, 942 N.W.2d 404 (2020). As a general proposition, it is incumbent upon the appellant to
present a record supporting the errors assigned; absent such a record, an appellate court will affirm
the lower court’s decision regarding those errors. Id.In the absence of a bill of exceptions, we examine and consider only the pleadings in
conjunction with the judgment reviewed. Rosberg v. Rosberg, 25 Neb. App. 856, 916 N.W.2d 62(2018). When a transcript, containing the pleadings and order in question, is sufficient to present
the issue for appellate disposition, a bill of exceptions is unnecessary to preserve an alleged error
of law regarding the proceedings under review. Id. If the pleadings are sufficient to support the
judgment, it will be presumed on appeal that the evidence supports the trial court’s orders and
judgment. See id. See, also, Ehlers v. Pound, 176 Neb. 673, 126 N.W.2d 893 (1964) (in absence
of bill of exceptions, it is presumed that issues of fact presented to trial court were correctly decided
and only issue that is considered on appeal is sufficiency of pleadings to support judgment).
We conclude that the bill of exceptions from the August and December 2020 hearings,
along with the transcripts, are sufficient for this court’s disposition of Chelli’s assigned errors.
3. ASSIGNED ERRORS
(a) Assigned Errors With Insufficient Argument
Although we determined that we could consider Chelli’s assigned errors despite her
erroneous placement of them in the table of contents of her brief, we conclude that the argument
section of her brief fails to properly address four of them. In those instances, Chelli makes
conclusory assertions, cites to various legal propositions without providing any substantive
application to the assigned errors, or makes assertions unrelated to the error assigned. An alleged
error must be both specifically assigned and specifically argued in the brief of the party asserting
the error to be considered by an appellate court. Seid v. Seid, 310 Neb. 626, 967 N.W.2d 253(2021). Where an appellant’s brief contains conclusory assertions unsupported by a coherent
analytical argument, the appellant fails to satisfy the requirement that the party asserting the
alleged error must both specifically assign and specifically argue it in the party’s initial brief. State
v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021). The following assigned errors are insufficiently
argued in Chelli’s initial brief.
(i) Dismissal of Children From Lawsuit
In her claim that the district court erred in dismissing the minor children from her lawsuit,
Chelli says only that the decision was “not supported by the records or the law.” She then provides
legal propositions related to jurisdiction, res judicata, and void judgments, without any further
explanation. No coherent analytical argument was provided, and we therefore decline to address
this assigned error.
(ii) Issuance of Protective Order
Chelli assigns that the district court erred in issuing the protective order filed on September
22, 2020. She claims she is entitled by law to have her children’s school records. She does not
connect the protective order, which required maintaining confidentiality of certain information
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once exchanged, to her right to have her children’s school records. There being no coherent
analytical argument, we decline to address this alleged error.
(iii) Dismissing Case While Pending Appeal
Chelli assigns error to the district court’s dismissal of the case “while pending appeal and
unresolved matters before the court regarding jurisdiction and without giving [Chelli] an
opportunity to be heard and to properly present her case.” Brief for appellant at 18. She then argues
that the school requested sanctions to which they were not entitled and the September 1, 2020,
order continuing trial and deadlines “totally prejudice[d] and surprise[d] [her] . . . showing favor
to [the school] that never provided [her] with the discoveries and documents that [she] requested
and refused to do so which actions were preserved on the records.” Brief for appellant at 19.
We observe that Chelli’s premature appeal from the September 2020 orders was dismissed
for lack of jurisdiction by this court on November 23, 2020. There being no coherent analytical
argument related to the error assigned, we decline to further address this alleged error.
(iv) Bill of Exceptions Not Provided to Chelli
Chelli assigns that she was not provided a copy of the bill of exceptions to properly prepare
her brief. However, in the argument portion of her brief, she claims only that the “court was
informed and aware of the status of the case and the incomplete records prior to reaching its
decision.” Brief for appellant at 19. She does not explain what she means by “incomplete records,”
nor how this applies to her preparation of her brief. Without further information and explanation,
this court is unable to consider this assigned error further.
(b) Assigned Errors
(i) Granting School’s Motion to Compel Discovery
Chelli argues that the school served their discovery on August 4, 2020, and therefore her
responses were not due at the time they filed their motion to compel on August 24. She notes that
she “firmly objected” to the school’s motion to compel and asked the district court to grant her
“motion to expedite to compel and to sanction the [school] for their failure to not provide [her]
with [her] minor children[‘s] records” in response to her discovery requests served on July 9, 2020.
Brief for appellant at 13. She claims the school never provided her with responses to her discovery
requests “because they told the court that [the children] were not [her] children under their
conclusions and offer hearsay arguments.” Id. She suggests that the children’s father and the school
“conspire[d] with each other to violate the law and that is what brought [her] to this lawsuit.” Id.She further contends that the children’s father and the school would not provide her the children’s
records and they “cooperated with each other to denied [sic] me parenting time with my minor
children to distance my minor children from me.” Id.Notably, other than indicating her belief that the motion to compel was premature, Chelli
does not specifically argue why the trial court should not have granted the school’s motion; rather,
she focuses her argument more on her grievance that the school had not provided responses to her
discovery, which we will address in the next section.
As for the district court’s decision to grant the school’s motion to compel, the record
reflects that the school served discovery on Chelli on August 4, 2020, and on August 7, Chelli filed
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an objection to all the discovery, in which she “firmly” objected and argued that the discovery
requested was not timely and was “unfair, unjust, capriciously [sic], and is unjust and unfair to the
process of justice.” She indicated that she would have to “take extra extreme[] amount of time and
extreme[] amount of money and lost [sic] of money to please [the school’s] capriciously . . . .” The
document appears to be missing a page since it ends with an incomplete sentence, but we note that
the facsimile transmission data at the top of each page reflects that 5 out of 5 pages were
transmitted.
In response to Chelli’s objection to the school’s discovery described above, on August 11,
2020, the school sent a “good faith discovery letter” to Chelli “requesting clarifications,
supplements, and reasonings for [her] meritless objections.” Upon receiving no response, the
school filed its motion to compel on August 24. At the hearing which took place the following
day, the district court asked Chelli why she was not addressing the present matters in “the other
lawsuit” and indicated the court was going to confer with other judge “and if appropriate” would
ask the other judge “to take this case and deal with it all” because it was “the same thing.” The
court expressed it did not “like the way things [were] being done” and was “not going to be a party
to it and make a mess of [the] children’s lives” by “dealing with issues relating to [the] children
between two different judges who are looking at different things.” The court then suggested it
would confer with the other judge and that it was likely the case would be “consolidated with the
pending paternity action” and all issues related to the children and the school would be dealt with
by the other judge; “No end-runs here.”
While it is true that no specific discussion took place during the hearing regarding Chelli’s
refusal to respond to the school’s discovery requests, her basis for not responding to discovery was
provided in several documents she filed: her August 7, 2020, objection in which she “firmly”
objected to the school’s discovery and argued that the discovery requested was not timely, was
unjust, and would take an “extreme[]” amount of time and money; her August 11 motion for
“expedite reliefs” and other matters claimed the school’s request was “very late” and it would take
her “lots of extra time out of work” and “lots of extra time and money”; and her August 25 motion
to compel and objections wherein she noted her previous August 11 response and her explanation
for not responding to the school’s discovery, stating, “NO TIME TO ANSWER THEIR LATE
REQUEST OF DISCOVERY REQUEST.” Chelli’s August 25 document further indicated that
the school was requesting from her documents in the school’s possession and was requesting from
her “information and documents they are fully aware of and information and documents in
violation of privacy laws.” She asserted that she was objecting to the school’s motion to compel
“because it is made in bad faith” in that they were “not past-due” and the school was “not entitled
to their bad faith request of discovery” under the rules of discovery.
The basis for Chelli’s objection to the school’s motion to compel discovery was reiterated
throughout her multiple written objections and motions filed with the district court. It was evident
that Chelli did not intend to respond to the school’s discovery as set forth in her initial objection
filed on August 7, 2020. Therefore, it was not premature for the school to file a motion to compel
upon receiving Chelli’s objection and following its unsuccessful attempt to resolve the matter
through its “good faith discovery letter” letter sent to Chelli on August 11. We cannot say the court
abused its discretion by entering an order on September 1, 2020, sustaining the school’s motion to
compel discovery without receiving additional argument from Chelli at the August 25 hearing. See
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Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017) (control of discovery is matter of
judicial discretion, and decisions regarding discovery will be upheld on appeal in absence of abuse
of discretion).
(ii) Disregarding Chelli’s Motion to Compel
On August 25, 2020, just prior to the hearing scheduled to take place on the school’s motion
to compel discovery, Chelli filed a “Motion to Compel and Supporting Affidavit and Objections.”
In that document, she represented that she had served discovery on the school on July 9, and that
on August 6, the school responded with “their objections and their refusal to answer and produce
documents that legally belongs to [Chelli].” While Chelli requested an order compelling the school
to comply with her discovery requests, there is no indication that she scheduled the matter for
hearing, nor that she offered any evidence to support the school’s refusal to comply. At the hearing,
when given an opportunity to speak to matters before the district court that day, Chelli stated that
her issues with the school were that “they were not allowing [her] to exercise [her] parenting time,”
“they withhold [her] children and their properties through [her] parenting time,” and they denied
her “access to activities where all the other parents were involved.” When the court interrupted
Chelli to redirect matters to issues pending before the court, Chelli indicated that she filed a motion
to compel the school to answer discovery she had served on it. She stated, “According to the rules,
I’m not in default yet, but they are way past due and in default and are denying me basic documents
of the children.”
The district court then proceeded to discuss the requested protective order requested by the
school, and the school informed the court it had “no problem giving over information” to Chelli.
The school added: “We have told her this on several occasions. . . . Yet she filed this lawsuit. We
are worried about her actions.” The court advised Chelli that the school was “going to have to
provide [her] with the responses to her discovery requests,” but inquired whether Chelli had any
problem keeping the information provided by the school confidential. When Chelli agreed she
would keep the information confidential, the court indicated it would issue the protective order.
On appeal, Chelli claims the district court erred in disregarding her motion to compel and
for sanctions. However, according to Chelli’s own document filed on August 6, 2020, the school
responded with “their objections and their refusal to answer and produce documents that legally
belongs [sic] to [Chelli].” While the record on appeal does not provide us with the school’s
responses to Chelli’s discovery requests, it does contain the school’s August 6 motion for
protective order, in which the school represented that confidential information would be requested
and produced in the course of discovery. The school requested a protective order “in the interests
of justice.”
Given the record before us, it appears the school may have been delaying turning over
documents to Chelli until a protective order was entered due to the confidential nature of some
information anticipated to be exchanged in the course of discovery. This is certainly permitted
under Neb. Ct. R. Disc. 6-326(c) (rev. 2008), which provides for protective orders. This issue was
taken up by the district court at the August 25, 2020, hearing, during which Chelli was informed
by the court that the school would be turning over its responses to her discovery and it would be
entering a protective order to keep certain information confidential. Based on the discussion that
took place during the August 25 hearing, it appears the court was satisfied as to the school’s request
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for a protective order before turning certain discovery over to Chelli. Although the court did not
enter a written order, it implicitly denied Chelli’s motion to compel during its discussion of the
protective order. We cannot say the district court abused its discretion by declining to enter an
order at that point in time compelling discovery responses from the school based on its decision to
grant the protective order.
(iii) Granting School’s Motion to Continue Discovery Deadlines
At the August 25, 2020, hearing, the school indicated there was a motion pending seeking
to continue discovery deadlines because the school’s prior counsel had withdrawn “about a month
ago.” On September 1, the district court entered an order granting the school’s motion to continue
trial “in its entirety and all trial and pretrial deadlines shall be continued” for 120 days from entry
of the order. On September 22, the court also entered the protective order.
Chelli claims the September 1 and 22, 2020, orders “were a surprise, without notice on the
records to [her] and without a hearing.” Brief for appellant at 15. However, the school’s request
for a continuance of discovery deadlines was discussed at the August 25, 2020, hearing, as was
the protective order; an opportunity to be heard was available to Chelli at that time. She also
contends that the school was “fully aware” of the deadlines when they hired a new lawyer and
there was no reason to delay delivering her children’s school records to her. Id. However, as
previously stated, matters related to discovery are left to the discretion of the trial court and we
find no abuse of discretion in the district court’s decision to continue deadlines. See Putnam v.
Scherbring, supra.(iv) Dismissing Case With Prejudice
The record reflects that the school served discovery requests on Chelli on or about August
4, 2020. As described previously, Chelli objected and refused to produce responses to the school’s
discovery requests through documents she filed on August 7, 11, and 25. The school filed a motion
to compel on August 24 and a hearing took place the next day. On September 1, the district court
entered an order granting the school’s motion to compel and ordering Chelli to “fully and properly”
respond to the school’s discovery within 20 days. Chelli did not comply as ordered, and on
September 25, the school filed a motion for sanctions requesting an order for dismissal and for
sanctions against Chelli for failure to comply with the September 1 order related to discovery. A
hearing took place on December 17, during which the district court concluded that Chelli’s action
was “completely frivolous” and Chelli’s “failure to respond appropriately is totally unacceptable.”
As a sanction, the court dismissed Chelli’s action with prejudice.
Chelli assigns error to the district court’s dismissal of her case with prejudice. She claims
the district court was supposed to “further investigate regarding jurisdiction questions, there was
not a hearing to announce or conclude such important question or to give [Chelli] an opportunity
to be heard to obtain reliefs to obtain [her] minor children[‘s] school records and production of
documents and interrogatories that [she] requested.” Her argument is that “[t]here is no proper
protection under the law where citizen rights are violate [sic] against the vulnerable minr [sic]
children and denied to a self-litigant.” Brief for appellant at 20.
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Although again there is no coherent analytical argument made by Chelli to support the
alleged error, we nevertheless address the district court’s dismissal of the case as a discovery
sanction given its severity.
As pointed out in the school’s brief, the failure to comply with court-ordered discovery and
the applicable sanctions are governed by Neb. Ct. R. Disc. § 6-337 (rev. 2008). If the parties fall
short of their discovery obligations, § 6-337 allows the court to sanction them. See Hill v. Tevogt,
293 Neb. 429, 879 N.W.2d 369 (2016). When a party “fails to obey an order to provide or permit
discovery,” a court in which the action is pending “may make such orders in regard to the failure
as are just.” Neb. Ct. R. Disc. § 6-337(b)(2). This includes “[a]n order striking out pleadings . . .
or dismissing the action or proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.” Neb. Ct. R. Disc. § 6-337(b)(2)(C).
The Nebraska Supreme Court has 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. See Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956
N.W.2d 692 (2021). Neb. Ct. R. Disc. § 6-337(a)(3) provides that an evasive or incomplete answer
“is to be treated as a failure to answer.”
Sanctions under § 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. Eletech, Inc. v.
Conveyance Consulting Group, supra. 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
ruling on a request for sanction or a sanction imposed will be upheld in the absence of an abuse of
discretion. Eletech, Inc. v. Conveyance Consulting Group, supra.In determining whether a sanction under § 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 sanctioned party acted willfully
or in bad faith. Eletech, Inc. v. Conveyance Consulting Group, supra. Dismissal may be an
appropriate sanction under § 6-337 for an “inexcusably recalcitrant” party. Eletech, Inc. v.
Conveyance Consulting Group, supra.The record demonstrates that at the August 25, 2020, hearing, the district court was not
pleased with what it suspected was Chelli’s attempt to raise matters related to the school in the
present action when such matters should have been addressed in the already pending paternity
action before a different district court judge. A week later, on September 1, the court ordered Chelli
to “fully and properly” respond to the school’s discovery requests. By September 25, Chelli had
not responded and the school filed its motion for sanctions, which included a request for an order
for dismissal and for sanctions against Chelli. On multiple occasions in August 2020, Chelli
maintained her objection and refusal to respond to the school’s discovery, and despite the court’s
September 1 order, she continued to be noncompliant.
During the December 17, 2020, hearing on the school’s motion for sanctions, Chelli offered
exhibit 6 (fax transmission verification report dated August 25, 2020), and exhibits 9 and 10, which
were copies of two separate notices for status conferences scheduled before the district court.
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Chelli attempted to offer exhibits 7 and 8, which were email communications between Chelli and
the school regarding matters related to the children. The court sustained the school’s objection to
exhibits 7 and 8 on the basis that the exhibits were outside the scope of the motion for sanctions.
Chelli argued that she did not know about any order that would have come after the August 25
hearing. She stated: “And my thought was that we postpone everything until my trial was done
between the court to find the statutes [sic] of the issues in this case regarding the legal custody of
the children.” She was therefore “surprised when orders came down” and status hearings were
“suspended” and “postponed for today.” Chelli claimed she thought “everything was continued
until we can figure out the status of my custody with [the other judge].” Chelli further claimed that
the “discoveries that [the school was] requiring and stuff like that, they are fully aware of all this.”
She further pointed out that the school “did not answer [her] discoveries.”
Clearly, Chelli had no intention of responding to the school’s discovery requests based
upon her repeated assertions that the school already had the information they were requesting or
that the information was otherwise private or too time consuming or too costly for her to answer.
There is nothing in the record before us to indicate that Chelli made any effort whatsoever to try
to comply with the district court’s September 1, 2020, order directing her to “fully and properly”
respond to the school’s discovery within 20 days. From the time the school filed its motion for
sanctions on September 25 until the hearing on December 17, Chelli had notice that the school
was seeking an order for dismissal and for sanctions based upon her noncompliance with the
court’s September 1 order. Rather than making some effort to comply, Chelli remained focused
instead on asserting claims against the school for actions which Chelli perceived as a violation of
her rights as a mother.
However, this court’s focus is only on whether the district court abused its discretion by
imposing the severe sanction of dismissing Chelli’s case due to her noncompliance with its
September 1, 2020, order. We conclude that none of Chelli’s reasons in defense of her
unwillingness to comply with the court’s discovery order excuse her noncompliance. Even on
appeal, Chelli’s focus is not on the nature of the discovery requested itself; rather, she continues
to argue about how her rights as a parent have been violated. Although dismissal is a harsh
sanction, we cannot say the district court abused its discretion by dismissing Chelli’s action as a
sanction for her noncompliance in responding to discovery under the circumstances presented in
this case. See Eletech, Inc. v. Conveyance Consulting Group, supra (dismissal may be appropriate
sanction under § 6-337 for inexcusably recalcitrant party).
VI. CONCLUSION
Finding no abuse of discretion in the district court’s decision to dismiss Chelli’s action as
a discovery sanction, we affirm the district court’s December 18, 2020, order.
AFFIRMED.
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