Pope-Gonzalez v. Husker Concrete ( 2013 )

Decisions of the Nebraska Court of Appeals
POPE-GONZALEZ v. HUSKER CONCRETE 575
Cite as 21 Neb. Ct. App. 575
Teri Pope-Gonzalez, appellant, v.
Husker Concrete, LLC, appellee.
___ N.W.2d ___
Filed December 24, 2013. No. A-12-915.
1. Pretrial Procedure: Appeal and Error. Determination of an appropriate sanc-
tion for failure to comply with a proper discovery order initially rests with the
discretion of the trial court, and its rulings on appropriate sanctions will not be
disturbed on appeal absent a showing of an abuse of that discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
acting within effective limits of authorized judicial power, elects to act or refrain
from action, but the selected option results in a decision which is untenable and
unfairly deprives the litigant of a substantial right or a just result.
3. Default Judgments: Motions to Vacate. Unavoidable casualty, which rises to a
sufficient ground to vacate a default judgment, must be one preventing a party
from prosecuting or defending.
4. Effectiveness of Counsel. A pro se litigant is held to the same standards as one
who is represented by counsel.
5. ____. Although people have a right to represent themselves, the trial court also
has inherent powers to compel conformity to Nebraska procedural practice.
6. Rules of the Supreme Court: Pretrial Procedure. There is a difference between
noncompliance with one of the discovery rules and noncompliance with an order
of the trial court on a discovery matter, and this difference may impact the allow-
able sanction.
7. Default Judgments: Pretrial Procedure. Dismissal or default judgment is an
appropriate sanction for failing to comply with a discovery order.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Teri Pope-Gonzalez, pro se.
Brian S. Kruse, of Rembolt Ludtke, L.L.P., for appellee.
Irwin, Pirtle, and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
Teri Pope-Gonzalez (Gonzalez) appeals the order of the dis-
trict court for Lancaster County granting default judgment for
Husker Concrete, LLC, and dismissing Gonzalez’ complaint
for failure to comply with discovery and the court’s orders
regarding discovery. For the reasons that follow, we affirm.
Decisions of the Nebraska Court of Appeals
576 21 NEBRASKA APPELLATE REPORTS
BACKGROUND
Gonzalez filed a complaint against Husker Concrete on
November 25, 2008. On September 18, 2009, the district
court held a status conference and entered a progression order
in which the trial court ordered Gonzalez to provide Husker
Concrete certain witness disclosures. Gonzalez failed to dis-
close any expert witnesses.
The district court granted summary judgment, and Gonzalez’
appeal was heard by this court. See Gonzalez v. Husker
Concrete, No. A-10-1144, 2011 WL 4905527 (Neb. App. Oct.
11, 2011) (selected for posting to court Web site). We found
Gonzalez had presented evidence showing the existence of a
material issue of fact; thus, the cause was remanded to the dis-
trict court for further proceedings.
On January 17, 2012, the district court held a status confer-
ence and Gonzalez personally appeared. Husker Concrete’s
counsel informed the court that Gonzalez had not fully
responded to or supplemented discovery requests. The court set
a new discovery deadline for April 20 and scheduled a pretrial
conference for May 17.
On April 20, 2012, Gonzalez filed a motion to extend the
discovery deadline and pretrial conference, because she was
pro se, ill, and unable to get the paperwork done.
On May 17, 2012, Gonzalez appeared, requesting “a couple
more months” to conduct and respond to outstanding dis-
covery. The trial court inquired as to whether Gonzalez still
had discovery due to Husker Concrete. Husker Concrete’s
counsel informed the court that Gonzalez had outstanding
discovery requests dating back to 2009 and that she had
not complied with the April 20 discovery deadline. She had
not responded to the witness disclosures, interrogatories, or
requests for production.
The court asked whether Gonzalez would be able to respond
to the requests within 60 days, and she said, “Yes, sir.” The
district court granted the motion and gave her 60 days, until
approximately July 17, 2012, to complete discovery. During
that status conference, the court specifically noted Gonzalez
Decisions of the Nebraska Court of Appeals
POPE-GONZALEZ v. HUSKER CONCRETE 577
Cite as 21 Neb. Ct. App. 575
would be subject to sanctions if she failed to comply with her
discovery and disclosure obligations.
On May 17, 2012, the district court entered a progression
order in which the court ordered Gonzalez to provide Husker
Concrete, without further request, certain initial disclosures,
and expert witness disclosures within 60 days of the date of
the order. The court also required Gonzalez to supplement and/
or respond to written discovery requests by Husker Concrete
in March 2009. The progression order specifically states:
“[Gonzalez’] answers to outstanding discovery requests of
[Husker Concrete] are due 60 days from the date of this order
or [Gonzalez] shall be subject to sanctions.” On May 17, 2012,
Husker Concrete’s counsel resubmitted the necessary discovery
requests to Gonzalez.
Gonzalez failed to comply with the district court’s orders
regarding discovery and disclosure within 60 days. On August
16, 2012, Husker Concrete filed a “Motion for Sanctions,
Including Dismissal With Prejudice.”
On August 22, 2012, the district court considered Husker
Concrete’s motion for sanctions. Husker Concrete asserted
Gonzalez had not responded to discovery or disclosure requests,
and Husker Concrete requested the case be dismissed with
prejudice. Gonzalez did not appear at the hearing.
On August 28, 2012, the district court entered an order
granting default judgment in favor of Husker Concrete, dis-
missing Gonzalez’ case.
Gonzalez filed a motion to set aside the sanction. Gonzalez
did not dispute her noncompliance with the district court’s
orders. She claimed the default judgment should be vacated,
asserting that (1) she had not received notice of the hearing, (2)
she had been ill, (3) she did not have an attorney, (4) she did
not have copies of the discovery requests, (5) she gave copies
of all of the evidence to opposing counsel, (6) Husker Concrete
failed to depose her, and (7) dismissal of the action was overly
harsh and unjust.
The district court denied Gonzalez’ motion to set aside.
Gonzalez timely appealed.
Decisions of the Nebraska Court of Appeals
578 21 NEBRASKA APPELLATE REPORTS
ASSIGNMENTS OF ERROR
Gonzalez assigns that the trial court’s sanction was overly
harsh and that the court should not have dismissed her claim.
STANDARD OF REVIEW
[1] Determination of an appropriate sanction for failure to
comply with a proper discovery order initially rests with the
discretion of the trial court, and its rulings on appropriate sanc-
tions will not be disturbed on appeal absent a showing of an
abuse of that discretion. Mandolfo v. Mandolfo, 281 Neb. 443,
796 N.W.2d 603 (2011).
ANALYSIS
Gonzalez asserts that the sanction imposed, dismissing the
action against Husker Concrete, was “overly harsh” and that
the trial court abused its discretion.
[2] We review the imposition of a discovery sanction for
abuse of discretion. A judicial abuse of discretion exists when
a judge, acting within effective limits of authorized judicial
power, elects to act or refrain from action, but the selected
option results in a decision which is untenable and unfairly
deprives the litigant of a substantial right or a just result.
Mandolfo v. Mandolfo, supra.
Gonzalez asserts the sanctions were inappropriate because
she did not receive notice of the August 22, 2012, hearing on
Husker Concrete’s motion for sanctions and because she was
sick during the pendency of the case.
The record shows that Husker Concrete provided a copy of
the “Motion for Sanctions, Including Dismissal With Prejudice,”
and the accompanying notice of hearing by mail on August 16,
2012. The record also shows that Gonzalez was aware of her
responsibilities to comply with discovery—by April 20, per
the district court’s order on January 17, and within 60 days
of the court’s May 17 order. In addition, Gonzalez indicated
on May 17 that she had been ill, yet at this same hearing, she
also acknowledged that 60 days would be sufficient to com-
plete discovery. Further, in her appeal, she does not claim to
have complied with the court’s orders. We find this assignment
of error is without merit, and the trial court did not abuse its
Decisions of the Nebraska Court of Appeals
POPE-GONZALEZ v. HUSKER CONCRETE 579
Cite as 21 Neb. Ct. App. 575
discretion in imposing sanctions though Gonzalez was absent
from the hearing.
With regard to her illness, Gonzalez alleges she was unable
to respond to discovery requests within the allotted time. She
further alleges her illness arises from the alleged nuisances
which gave rise to the underlying complaint.
[3] The Nebraska Supreme Court has found that unavoidable
casualty, which rises to a sufficient ground to vacate a default
judgment, must be one preventing a party from prosecuting or
defending. See Aetna Cas. & Surety Co. v. Dickinson, 216 Neb.
660, 345 N.W.2d 8 (1984). In Aetna Cas. & Surety Co., the
Supreme Court found that a time period of 4 months from the
date that production was ordered was “more than ample time in
which to comply with the court’s order,” where the appellants,
a husband and wife, claimed that they were unable to comply
due to a head injury allegedly suffered by the husband. 216
Neb. at 663, 345 N.W.2d at 10.
There is little evidence in the record demonstrating how
Gonzalez’ health affected her ability to complete the requested
discovery and disclosures. Regardless, the district court pro-
vided her with at least 120 days to comply. Despite this addi-
tional time, she failed to comply or respond at all, in violation
of the court’s order, and in spite of the warning that sanctions
would apply if she failed to meet the deadline in July 2012.
By August 2012, she still had not disclosed factual witnesses,
expert witnesses, or categories of damages.
Upon our review, we find the district court did not abuse its
discretion in finding that sanctions were appropriate as a result
of Gonzalez’ noncompliance.
[4,5] Further, at times during the pendency of this case,
Gonzalez has asserted that she is a pro se litigant and that
she required additional time to meet deadlines or to respond
to opposing counsel’s requests. We must note that a pro se
litigant is held to the same standards as one who is repre-
sented by counsel. Prokop v. Cannon, 7 Neb. Ct. App. 334, 583
N.W.2d 51 (1998). Although people have a right to represent
themselves, the trial court also has inherent powers to compel
conformity to Nebraska procedural practice. Id. Those powers
 Decisions of the Nebraska Court of Appeals
580 21 NEBRASKA APPELLATE REPORTS
might well be used to bring litigation to a timely and orderly
conclusion. Id.
Having determined that sanctions were appropriate under
the circumstances, we consider whether the court abused its
discretion in dismissing the case, granting default judgment for
Husker Concrete.
The district court has discretion to sanction parties to a
lawsuit. Neb. Ct. R. Disc. § 6-337(b)(2) states that if a party
fails to obey a court order to provide or permit discovery, the
court may impose further “orders in regard to the failure as are
just,” including “dismissing the action or proceeding or any
part thereof, or rendering a judgment by default against the
disobedient party.” Determination of an appropriate sanction
for failure to comply with a proper discovery order initially
rests with the discretion of the trial court, and its rulings on
appropriate sanctions will not be disturbed on appeal absent a
showing of an abuse of that discretion. Mandolfo v. Mandolfo,
281 Neb. 443, 796 N.W.2d 603 (2011).
[6,7] This court has stated that “there is a difference
between noncompliance with one of the discovery rules and
noncompliance with an order of the trial court on a discovery
matter and that this difference may impact the allowable sanc-
tion.” Whitney v. Union Pacific R. Co., No. A-97-410, 1998
WL 30266 at *12 (Neb. App. Jan. 27, 1998) (not designated
for permanent publication), citing Aetna Cas. & Surety Co.
v. Dickinson, 216 Neb. 660, 345 N.W.2d 8 (1984) (where
default judgment was found to be appropriate sanction for
unjustifiable obstruction of discovery). The Nebraska Supreme
Court has also noted that dismissal or default judgment is an
appropriate sanction for failing to comply with a discovery
order. See Stanko v. Chaloupka, 239 Neb. 101, 474 N.W.2d
470 (1991).
The evidence shows that Gonzalez repeatedly failed to
respond to discovery requests. On January 17, 2012, she was
granted until April 20 to respond to discovery, and her request
for 60 additional days was granted on May 17. At that time,
the court ordered compliance with the discovery requests and
she was informed that sanctions would apply if she failed to
respond. She failed to comply with any part of the trial court’s
Decisions of the Nebraska Court of Appeals
POPE-GONZALEZ v. HUSKER CONCRETE 581
Cite as 21 Neb. Ct. App. 575
order without showing sufficient justification, and the court
granted Husker Concrete’s motion for sanctions, dismissing
the case. Upon our review, we find this was not an abuse of
discretion following Gonzalez’ failure to comply with the dis-
trict court’s orders and the rules of discovery.
CONCLUSION
We find the district court did not abuse its discretion
in determining that sanctions were appropriate under the
circumstances and granting default judgment in favor of
Husker Concrete.
Affirmed.