Lundhal v. Roberts ( 2019 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
LUNDAHL V. ROBERTS
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).
LOGAN LUNDAHL AND HOLLI TELFORD, APPELLANTS,
V.
BURTIS L. ROBERTS ET AL., APPELLEES.
Filed February 5, 2019. No. A-17-1191.
Appeal from the District Court for Dawes County: TRAVIS P. O’GORMAN, Judge. Affirmed
as modified.
Logan Lundahl and Holli Telford, appellants pro se.
Joe W. Stecher, of Skavdahl, Edmund & Stecher, for appellees.
MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
MOORE, Chief Judge.
INTRODUCTION
Logan Lundahl and Holli Telford (collectively the Appellants) filed a complaint in the
district court for Dawes County naming Burtis L. Roberts, Teresa Roberts, Burtis and Teresa as
trustees of “the Family Trust,” and Star Valley Storage, LLC (collectively the storage defendants),
as well as Progressive Insurance Corporation and “[Does] Progressive Insurance employees,” as
defendants. The court granted a motion by the storage defendants and dismissed the case with
prejudice. The court subsequently denied the Appellants’ motion to alter or amend, and they
perfected their appeal to this court. Because we find that the district court properly dismissed the
action under the doctrine of forum non conveniens, we affirm the decision, as modified below.
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BACKGROUND
COMPLAINT
On July 20, 2017, the Appellants filed a pro se complaint in the district court, alleging
violations of several federal acts: the Racketeer Influenced and Corrupt Organizations (RICO) Act,
Fair Credit Reporting Act (FCRA), and the Electronic Fund Transfers Act (EFTA). They also
alleged state claims for replevin and return, wrongful conversion and trespass to chattel, invasion
of privacy, unjust enrichment, breach of the covenant of good faith and fair dealing, and
indemnification for personal injury. We discuss only those specific allegations of the Appellants’
various claims as necessary to resolution of this appeal in the analysis section below. The
complaint includes numerous footnotes and attached exhibits. It also includes a verification
section, signed by Telford and Lundahl and notarized by “Marti Telford.” We note that “Marti
Telford” is a name associated with “Holli Telford” in other litigation. See Lundahl v. Nar Inc., 434
F. Supp. 2d 855, 860 n.2 (D. Idaho 2006) (“[p]laintiff has employed numerous aliases in her past
litigation, including but not limited to, H.M. Telford, M.H. Telford, Marti Telford, Holli Lundahl,
H. Lundahl, H.T. Lundahl, Marti Lundahl, and Holly Mattie Telford”).
In the “PERSONAL JURISDICTION” section of their complaint, the Appellants alleged
that “[p]ersonal jurisdiction and venue exists in the state of Nebraska under RICO’s nationwide
contacts analysis under the 5th amendment due process clause” and because the storage defendants,
alleged to be Wyoming residents, and the Progressive defendants, alleged to be “residents of the
state of Nebraska under the doing business clause,” “conspired to deprive plaintiff residents of
their assets in the state of Nebraska thereby placing the focus of the conspiracy in this state.” The
Appellants also stated, “Furthermore 18 USC section 1965(a),[ ](b) and (d) provide for jurisdiction
in this state.”
We summarize the lengthy allegations in the “GENERAL ALLEGATIONS” section of
the Appellants’ complaint, beginning with the allegation that in October 2013, Telford entered into
a contract with the storage defendants for rental of space in a parking lot at a location in Wyoming
where she stored a motor home filled with “records and electronic devices.” Apparently, the
storage space was remote and inaccessible during winter except by foot and the storage defendants
would only accept payment via check. The Appellants alleged that the rent checks, due every 6
months, were negotiated successfully until October 2016, at which time “the storage defendants
intentionally withheld cashing [a rent check] so they could steal [the Appellants’] personal and
legal properties . . . pursuant to a conspiracy with the [P]rogressive . . . defendants to destroy
evidence.” According to the Appellants’ complaint, items stored in the motor home included
“recordings of insurance contracts made over the phone” concerning a motorcycle insurance policy
held by Lundahl.
With respect to an insurance coverage dispute between Lundahl and Progressive, the
Appellants alleged that Lundahl entered into a contract with Progressive for certain insurance
coverage, Lundahl recorded those conversations, Lundahl agreed that Progressive could
automatically withdraw premium payments from his bank account, Lundahl provided his bank
account and routing number to authorize these transfers, and Progressive withdrew monthly
premiums from Lundahl’s bank account pursuant to this arrangement. The Appellants alleged that
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Lundahl was involved in a serious motorcycle accident in California in October 2015, Lundahl
received $15,000, the “full policy limits” of the “minimal coverage” carried by the other driver
involved in the accident, and Progressive resisted providing further coverage. The Appellants
alleged that Progressive had “bait switched” Lundahl’s insurance policy for one providing lower
coverage at the end of January 2015 while “still charging [Lundahl] the same insurance premiums
and withdrawing those premiums from [his] bank account.”
The Appellants next alleged that Progressive agreed to settle Lundahl’s demands for
particular coverage if he would meet Progressive’s adjuster at the storage facility in Wyoming and
allow the adjuster to hear Lundahl’s audio recordings of conversations with Progressive
concerning “policy terms and authorized withdrawals.” The Appellants alleged that Lundahl
provided Progressive with the address of the Wyoming storage facility and that since Lundahl was
non-ambulatory following his accident, he instructed Progressive to have the adjustor meet Telford
there on September 21, 2016, so that Telford could “take the adjuster to the storage space and play
the audios for the adjuster’s benefit, and after which [Progressive] was to settle within the policy
limits as promised.” According to the Appellants, the adjuster never met Telford as arranged, and
Lundahl subsequently called Progressive to complain about the failure to dispatch an adjuster and
“to settle in good faith.” The Appellants then set forth various allegations about Lundahl’s contacts
with Progressive, funds that were transferred from his bank account for the insurance policy that
Progressive “fraudulently denied was in place 11 months after the accident took place - due to
Progressive’s fraudulent bait and switch scheme,” and the financial losses allegedly suffered by
Lundahl.
Next, the Appellants set forth the details of a rental and property dispute with the storage
defendants. They alleged that Telford made payment to the storage defendants for the rent period
from October 1, 2016, through April 30, 2017. They also alleged that Telford sent change of
address notices to the storage defendants, ultimately indicating a change of address from Wyoming
to Nebraska, and that in the process of attempting to locate an operational telephone number for
the storage defendants, Telford made contact with Teresa. The Appellants alleged that Teresa
“announced that she had repossessed [the] motor home for alleged failure to tender the October
2016 to April 2017 $84 rent payment.” The Appellants further alleged that Teresa also informed
Telford that she had paid a lock smith to break into the motor home, moved the motor home from
the parking lot to “a secured location,” conducted “a search and seizure of all of [the] personal
records, computers, and electronic devices and removed them from the motor home to an
undisclosed location,” and had “conducted a repossession” of this property for nonpayment of rent.
The Appellants then detailed further contacts between Teresa and Telford with respect to the rental
payment/property dispute, including their allegation that during the “repeated arguments” between
Telford and Teresa, Telford accused Teresa of conspiring with Progressive “to steal [the
Appellants’] recording evidence against [Progressive] to obstruct [Lundahl’s] claims against
[Progressive] and [Telford’s] claims against [Wells Fargo] in a case pending in Nebraska.”
Finally, the Appellants set forth allegations, attempting to connect the insurance and
rental/property disputes. They alleged that the Progressive adjuster who was supposed to meet
Lundahl at the Wyoming storage facility in September 2016, “intentionally did not show up at that
storage facility on this date because had had [sic] already conspired with Teresa to steal and spoil
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[the Appellants’] evidence properties to prevents [sic] its use in [Lundahl’s] multi million [dollar]
case against [Progressive].” The Appellants also alleged that since “[Wells Fargo] is the storage
defendants[’] personal and business bank . . . [the Appellants’] properties were also stolen in
violation of the H[obbs A]ct 18 USC 1951, remedial under RICO, to obstruct [Telford’s] proof of
claims against [Wells Fargo] bank pending in the state of Nebraska before the . . . Scottsbluff
District Court.” The Appellants alleged that Telford learned that the storage defendants reported
her delinquent on her storage bill “to justify the wrongful conversion of [the Appellants’]
properties,” that she made demands to remove the “derogatory user credit report,” which the
storage defendants failed to do, and that Lundahl learned after he pulled a private credit report,
that Progressive had made “numerous hard pull towards [Telford’s] credit without consent”,
making both sets of defendants liable under the FCRA.
In their request for recovery, the Appellants sought (1) compensatory and general damages
allowed by law for all of their tort claim; (2) treble damages against Progressive of $3,750,000,
treble damages against the storage defendants of $85,000, and “preservation of any future claims
against the storage defendants and other tortfeasors whose evidence may have been spoiled by the
storage defendants[’] recent tortious conduct;” (3) any other equitable and legal relief the court
deemed fair and reasonable; (4) indemnification of Lundahl’s personal injuries in the amount of
$19 million; (5) attorney fees and costs if the case went to trial; (6) trial by jury; and (7) “pre and
post judgment interest at the contract rate of 10% per annum as provided under Wyoming law.”
SERVICE AND APPEARANCE OF STORAGE DEFENDANTS
On August 16, 2017, praecipes for summons and summonses for service by certified mail
upon Burtis and Teresa at an address in Etna, Wyoming were filed in the district court. The
summonses reflect an address for Lundahl in Gordon, Nebraska, and identify the plaintiffs as
“Logan Lundahl” and “Holli Telford.” The praecipes for summons contain the name “HOLLI
LUNDAHL” in the blank for the name of “Plaintiff.” The record on appeal does not include any
other praecipes for summons or summonses, nor any return receipts.
On September 5, 2017, the storage defendants’ attorney filed a special appearance for
motion to dismiss, asking the district court to dismiss the Appellants’ causes of action against the
storage defendants “with prejudice” because (1) the complaint fails to state a claim upon which
relief can be granted “against any named defendants,” (2) the court is an inconvenient or improper
forum for “any claims” alleged in the complaint, (3) the Appellants’ causes of action have no
relationship or nexus with Dawes County, (4) the complaint and “inappropriate footnotes” are
“nonsensical,” and (5) the court has no personal jurisdiction over the storage defendants. Also on
September 5, the storage defendants’ attorney filed a notice of hearing, giving notice that a hearing
on the motion to dismiss had been set for September 12. Both the special appearance pleading and
the notice of hearing included certificates of service, stating that copies of the respective
documents had been mailed to the Appellants “by United States mail, postage prepaid” at the same
address in Gordon, Nebraska as was listed in the praecipes for summons issued by the Appellants.
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DISMISSAL OF CASE
No bill of exceptions was filed in this case, so we do not have a record of any hearing held
on the storage defendants’ motion to dismiss, but on September 13, 2017, the district court entered
an order granting the motion to dismiss. The court indicated that a hearing had been held on the
storage defendants’ special appearance for motion to dismiss, that the storage defendants had
appeared through counsel, and that the Appellants had not appeared at the hearing. In granting the
dismissal, the court stated:
The Court finds that this Court lacks jurisdiction over this action. None of the facts
alleged in the Complaint involve any acts in the State of Nebraska. All Defendants are
residents of states other than Nebraska. The allegations are frivolous and the Complaint
fails to state a cause of action.
The Motion to Dismiss is granted. [The Appellants’] action is dismissed with
prejudice. [The Appellants are] prohibited from filing any further pleadings in this Court
without the assistance of duly licensed counsel.
POSTJUDGMENT PROCEEDINGS
On September 25, 2017, the Appellants filed a motion to alter or amend the judgment. We
note that September 23 (the tenth day after entry of the district court’s September 13 order) was a
Saturday, and thus, contrary to the storage defendants’ argument in their brief on appeal, this
motion was timely. See Neb. Rev. Stat. § 25-1329 (Reissue 2016) (motion to alter or amend
judgment shall be filed no later than ten days after entry of judgment); Neb. Rev. Stat. § 25-2221(Reissue 2016) (concerning computation of time when last day of designated period falls on
Saturday or Sunday). In their motion, the Appellants alleged that (1) their absence from the hearing
on the storage defendants’ motion to dismiss was “procured by extrinsic fraud,” (2) the court’s
dismissal order did not reflect the correct analysis of personal jurisdiction with respect to their
RICO and transitory tort claims, (3) the court’s finding that their action was frivolous was void
giving the court’s finding of no personal jurisdiction, (4) the storage defendants made a general
appearance when they failed to dismiss the other allegations of their pleading once the court
granted dismissal based on the lack of personal jurisdiction, (5) the court erred by entering “a
Filing Injunction” against them without notice and an opportunity to defend, (6) the case should
be assigned to a different judge based on the court’s “Pervasive Bias” and “Advocacy in Favor
Of Defendant Parties,” (7) Progressive defaulted by failing to appear and respond and the court
was without authority to waive that default, and (8) a new hearing should be scheduled after
recusal. (Emphasis in original.) For these reasons, the Appellants sought “to alter or amend the
judgment by vacating same, starting the case anew and allowing [them] to file an amended
complaint based on changed circumstances.” Also on September 25, the Appellants filed a separate
motion asking the court to grant a default judgment against Progressive due to its failure to appear
or answer.
On October 18, 2017, the district court entered an order denying the Appellants’ motion to
alter or amend and their request for recusal, stating that “[j]urisdiction is entirely lacking in this
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matter.” The court’s order did not address the motion for default judgment filed by the Appellants
with respect to Progressive. The Appellants subsequently perfected their pro se appeal to this court.
ASSIGNMENTS OF ERROR
The Appellants assert, restated and reordered, that the district court erred in (1) finding no
jurisdiction, (2) dismissing the action with prejudice, (3) entering a prefiling order that was
overbroad and was void for lack of notice and lack of opportunity to defend, (4) failing to grant
their request for recusal, and (5) finding that their claims were frivolous and lacked merit after
finding that the court lacked jurisdiction over all of the defendants.
STANDARD OF REVIEW
In reviewing the grant of a motion to dismiss, an appellate court must look at the facts in
the light most favorable to the nonmoving party and resolve all factual conflicts in favor of that
party. Nimmer v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523 (2018).
Whether a suit should be entertained or dismissed under the rule of forum non conveniens
depends largely upon the facts of the particular case and rests in the discretion of the trial court.
Christian v. Smith, 276 Neb. 867, 759 N.W.2d 447 (2008).
ANALYSIS
JURISDICTION
The Appellants first assert that the district court erred in finding that it lacked jurisdiction
over the action. In their special appearance for motion to dismiss, the storage defendants alleged,
among other things, that the district court was an inconvenient or improper forum for any of the
claims alleged in the complaint. In its order granting the dismissal, the district court stated “None
of the facts alleged in the Complaint involve any acts in the State of Nebraska.”
The doctrine invoked by the storage defendants, and applied by the district court, in part,
is commonly referred to as “forum non conveniens.” Neb. Rev. Stat. § 25-538 (Reissue 2016)
provides, “When the court finds that in the interest of substantial justice the action should be heard
in another forum, the court may stay or dismiss the action in whole or in part on any conditions
that may be just.” The Nebraska Supreme Court has explained that the doctrine of forum non
conveniens (literally, “an unsuitable court”) provides that a state will not exercise jurisdiction if it
is a seriously inconvenient forum for the trial of the action, provided that a more appropriate forum
is provided to the plaintiff. Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191(2005). The doctrine of forum non conveniens refers to the discretionary power of a court to
decline jurisdiction when the convenience of the parties and the ends of justice would be better
served if the action were brought and tried in another forum. Id. The doctrine can be invoked sua
sponte by the court on its own motion. See Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct.
2123, 115 L. Ed. 2d 27 (1991). See, also, Estate of Thompson v. Toyota Motor Corp., 545 F.3d
357 (6th Cir. 2008); Wilburn v. Wilburn, 192 A.2d 797 (D.C. 1963).
The doctrine of forum non conveniens involves a balancing of conveniences and results in
dismissal when the court finds that substantial justice dictates that the matter should be heard in
another forum. See Qualley v. Chrysler Credit Corp., 191 Neb. 787, 217 N.W.2d 914 (1974). As
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the Nebraska Supreme Court noted in Ameritas Invest. Corp. v. McKinney, supra, a plaintiff’s
choice of a forum should not be disturbed except for weighty reasons, and only when trial in the
chosen forum would establish oppressiveness and vexation to a defendant out of all proportion to
the plaintiff’s convenience, or when the forum is inappropriate because of considerations affecting
the court’s own administrative and legal problems. The trial court should consider practical factors
that make trial of the case easy, expeditious, and inexpensive, such as the relative ease of access
to sources of proof, the cost of obtaining attendance of witnesses, the ability to secure attendance
of witnesses through compulsory process, and the advantages of having trial in a forum that is at
home with the state law that must govern the case, rather than having a court in some other forum
untangle problems in conflict of laws, and in law foreign to itself. Id. See, also, Sinochem Int’l Co.
v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432, 127 S. Ct. 1184, 167 L. Ed. 2d 15 (2007)
(holding “[a] district court . . . may dispose of an action by a forum non conveniens dismissal,
bypassing questions of subject-matter and personal jurisdiction, when considerations of
convenience, fairness, and judicial economy so warrant”).
In the case at hand, as we decipher their complaint, and viewing the facts in the light most
favorable to the Appellants, the Appellants assert that the storage defendants failed to accept the
rental payments made by Appellants on their storage facility in Wyoming and thereafter
wrongfully removed the Appellants’ property from storage and destroyed it. As to Progressive, the
Appellants assert that Progressive conspired with the storage defendants to destroy Progressive’s
records that were contained in the Wyoming storage facility, which records allegedly pertained to
an accident that occurred in California and Progressive’s alleged wrongdoing in providing
insufficient insurance coverage to Lundahl for that accident. None of the alleged facts constitute
the basis for claims occurring anywhere in this state.
Thus, regardless of whether the district court had subject matter jurisdiction over the case
and personal jurisdiction over the defendants was present in this case, which we need not decide,
we find that the district court did not abuse its discretion in dismissing the complaint under the
rule of forum non conveniens.
DISMISSAL WITH PREJUDICE
The Appellants assert that the district court erred dismissing the action with prejudice.
A dismissal without prejudice means that another petition may be filed against the same
parties upon the same facts as long as it is filed within the applicable statute of limitations. Eadie
v. Leise Properties, 300 Neb. 141, 912 N.W.2d 715 (2018). A dismissal with prejudice operates
as a rejection of the plaintiff’s claims on the merits and claim preclusion bars further litigation. Id.Section 25-538 allows a court to dismiss an action “on any condition that may be just.”
Here, it is clear that the Appellants’ claims do not belong in a Nebraska court. However, we hold
that the court’s order does not preclude the Appellants from filing this action in an appropriate
forum. We modify the court’s order to limit the dismissal with prejudice to any further actions on
these claims in Nebraska.
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PREFILING ORDER
The Appellants assert that the district court erred in entering a prefiling order that was
overbroad and was void for lack of notice and lack of opportunity to defend. They also argue that
they are “financially challenged” and cannot afford an attorney. Brief for appellants at 28. We
assume the Appellants are referring to the statement in the court’s order that “[the Appellants] [are]
prohibited from filing any further pleadings in this Court without the assistance of duly licensed
counsel.”
It is the court’s duty to prevent frivolous proceedings in the administration of justice. Cole
v. Blum, 262 Neb. 1058, 637 N.W.2d 606 (2002); State ex rel. Tyler v. Douglas Cty. Dist. Ct., 254
Neb. 852, 580 N.W.2d 95 (1998). See, also, Aetna Cas. & Surety Co. v. Dickinson, 216 Neb. 660,
345 N.W.2d 8 (1984) (it is duty of courts to prevent abuse of process, unnecessary delays, and
dilatory and frivolous proceedings in administration of justice). A frivolous legal position is one
wholly without merit, that is, without rational argument based on the law or on the evidence.
Dortch v. City of Omaha, 26 Neb. App. 244, 918 N.W.2d 637 (2018).
While there is a generally recognized constitutional right of access to the courts, courts can
place restrictions on such access in order to prevent the abuse of the judicial process, to avoid
unnecessary delay in the prosecution of actions, and to guard against actions that are frivolous or
malicious. State ex rel. Tyler v. Douglas Cty. Dist. Ct., supra. The state’s interest in not allowing
frivolous or malicious litigation in its courts is constitutionally paramount to a plaintiff’s desire to
pursue such litigation. Id.
The propensity for frivolous and vexatious litigation of one of the appellants in this case,
Telford, has been the subject of numerous court orders limiting her access to both state and federal
courts, including the Unites States Supreme Court. See Noble v. American Nat. Property. & Cas.
Ins. Co., 297 F. Supp. 3d 998 (D. S.D. 2018); Nelson v. Mountain West Farm Bureau Mut. Ins.
Co., 209 F. Supp. 3d 1130 (D. Neb. 2016). Telford is also known to have employed numerous
aliases in past litigation. See Lundahl v. Nar Inc., 434 F. Supp. 2d 855, 860 n.2 (D. Idaho 2006).
We also note that the record in the present case alludes to at least two other cases in Nebraska
involving Telford. The complaint references Telford’s “claims against WELLS FARGO in a case
pending in Nebraska.” And, in their motion to alter or amend, the Appellants refer to litigation in
Sioux County, Nebraska. However, there is nothing in the present record or the district court’s
order of September 13, 2017, to show why the particular prefiling restriction imposed in this case
was necessary.
The record on appeal does not show that the Appellants have brought successive vexatious
lawsuits involving the same issues against the same parties, here in Nebraska, such that they should
be prohibited from filing any further pleadings in the district court for Dawes County without the
assistance of duly licensed counsel. See Nuttelman v. Julch, 228 Neb. 750, 424 N.W.2d 333 (1988).
We also note that while the record shows that they are proceeding in forma pauperis on appeal,
there is nothing in the record to show that they proceeded in forma pauperis below or that they
have abused this privilege. In forma pauperis access to the courts is not a matter of right, but a
privilege, and abuse of such privilege should not and will not be permitted. State ex rel. Tyler v.
Douglas Cty. Dist. Ct., supra (trial court’s order limiting number of pleadings litigant could file
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per month while proceeding in forma pauperis and representing himself did not unreasonably
restrict litigant’s access to courts). Finally, there is no indication in the record that the Appellants
had notice that the court was considering the imposition of a prefiling restriction against them. The
prohibition in this case against “filing any further pleadings in this Court [district court for Dawes
County] without the assistance of duly licensed counsel is overly broad and, based on the record
before us, unwarranted at this point. We modify the court’s September 13, 2017, order to eliminate
the prefiling restriction.
RECUSAL
The Appellants assert that the district court erred in failing to grant their request for recusal.
Due process requires a neutral, or unbiased, adjudicatory decisionmaker. In re Interest of S.J., 283
Neb. 507, 810 N.W.2d 720 (2012). Such decisionmakers serve with a presumption of honesty and
integrity. Id. A party seeking to disqualify an adjudicator because of bias or prejudice bears the
heavy burden of overcoming the presumption of impartiality. Id. A trial judge should recuse
himself or herself when a litigant demonstrates that a reasonable person who knew the
circumstances of the case would question the judge’s impartiality under an objective standard of
reasonableness, even though no actual bias or prejudice is shown. Kalkowski v. Nebraska Nat.
Trails Museum Found., 290 Neb. 798, 862 N.W.2d 294 (2015).
In support of their assignment of error, the Appellants, cite to various propositions of law,
but they do little to explain why the district court should have granted their request for recusal in
this case. Their only substantive argument is as follows:
This action as evolved shows that [the trial judge] became entwined in the conspiracy
initiated by Progressive and continued by the storage defendants, when he used his office
for illicit purposes to forever judicially bar [the Appellants’] rights to seek remedies against
the offending parties with his decision[]making role to construct a final decision that he
knew mis[s]tated the law and facts presented by [the Appellants’] complaint, he
intentionally covered up the fraud committed by the storage defendants[’] attorney, and he
became embroiled in a running and bitter controversy with [the Appellants] which clearly
resulted in arbitrary orders.
Brief for appellants at 30.
The Appellants’ arguments are largely comprised of conclusory statements, and they have
failed to provide any evidence to support their assertions. The gist of their argument appears to be
that the trial judge is biased because he made unfavorable rulings against them. When reviewing
the decision of a lower court, an appellate court may consider only evidence included within the
record. Home Fed. Sav. & Loan v. McDermott & Miller, 243 Neb. 136, 497 N.W.2d 678 (1993).
We observe that a party’s brief may not expand the evidentiary record. Clarke v. First Nat. Bank
of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017). And, with respect to recusal, the U.S. Supreme
Court has stated that “judicial rulings alone almost never constitute a valid basis for a bias or
partiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474(1994). See, also, Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010) (allegations of
unfavorable rulings alone almost never establish that judge should be recused). The Appellants’
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arguments do not demonstrate that a reasonable person who knew the circumstances of the case
would question the judge’s impartiality under an objective standard of reasonableness. We find no
abuse of discretion in the district court’s denial of their request for recusal.
REMAINING ASSIGNMENT OF ERROR
We need not address the Appellants’ remaining assignment of error asserting that the
district court erred in finding that the claims were frivolous and lacked merit given our conclusion
that the court was correct in dismissing the action on the basis of forum non conveniens. See City
of Sidney v. Municipal Energy Agency of Neb., 301 Neb. 147, 917 N.W.2d 826 (2018) (appellate
court is not obligated to engage in analysis which is not needed to adjudicate controversy before
it).
CONCLUSION
We find no abuse of discretion in the district court’s dismissal of Appellants’ complaint on
the basis of forum non conveniens. However, we modify the court’s order to limit the dismissal
with prejudice to any further actions on these claims in Nebraska. We further modify the court’s
September 13, 2017 order to eliminate the prefiling restriction which prohibits the Appellants from
filing any further pleadings in the Dawes County District Court without the assistance of duly
licensed counsel. Finally, we find no abuse of discretion in the denial of the Appellants’ request
for recusal.
AFFIRMED AS MODIFIED.
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