Timothy L. Ashford, PC LLO v. Roses , 313 Neb. 302 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/27/2023 09:04 AM CST
- 302 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302Timothy L. Ashford, PC LLO, and
Timothy L. Ashford, appellants,
v. Roses Roses, appellee.
Timothy L. Ashford, PC LLO, and
Timothy L. Ashford, appellants,
v. Andrea Tate, appellee.
___ N.W.2d ___
Filed January 27, 2023. Nos. S-21-807, S-21-808.
1. Judges: Recusal. A recusal motion is initially addressed to the discre-
tion of the judge to whom the motion is directed.
2. ____: ____. A 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
was shown.
3. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
4. ____: ____. In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party against
whom the judgment was granted, and gives that party the benefit of all
reasonable inferences deducible from the evidence.
5. Limitations of Actions. If the facts in a case are undisputed, the issue
as to when the statute of limitations begins to run is a question of law.
6. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
7. Pretrial Procedure: Appeal and Error. Generally, the control of
discovery is a matter for judicial discretion, and decisions regarding
- 303 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302discovery will be upheld on appeal in the absence of an abuse of
discretion.
8. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
9. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
10. Judicial Notice: Appeal and Error. Judicial notice may be taken at any
stage of a proceeding, including on appeal.
11. Trial: Evidence: Records: Appeal and Error. Generally, it is not the
function of an appellate court to review evidence that was not presented
to the trial court. A bill of exceptions is the only vehicle for bringing
evidence before an appellate court; evidence which is not made a part
of the bill of exceptions may not be considered.
12. Judges: Recusal. The Nebraska Revised Code of Judicial Conduct
states that a judge shall recuse himself or herself from any proceeding in
which the judge’s impartiality might reasonably be questioned, includ-
ing when the judge has a personal bias or prejudice concerning a party
or a party’s lawyer.
13. ____: ____. To demonstrate that a trial judge should have recused him-
self or herself, the moving party must show 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 was shown.
14. Judges: Recusal: Presumptions. One seeking to disqualify a judge on
the basis of bias or prejudice bears the heavy burden of overcoming the
presumption of judicial impartiality.
15. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat.
§ 25-217 (Cum. Supp. 2022) is self-executing, so that an action is dis-
missed by operation of law, without any action by either the defendant
or the court, as to any defendant who is named in the civil action and
not served with process within the time set forth in the statute.
16. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After
dismissal of a civil action by operation of law under Neb. Rev. Stat.
§ 25-217 (Cum. Supp. 2022), there is no longer an action pending and
the district court has no jurisdiction to make any further orders except to
formalize the dismissal.
17. Limitations of Actions: Libel and Slander. The limitations period in
Neb. Rev. Stat. § 25-208 (Reissue 2016) commences upon the publica-
tion of the defamatory matter which forms the basis of the action.
18. Actions: Libel and Slander. Generally, under the single publication
rule, any communication that is made at approximately one time—such
- 304 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302as a television broadcast or a single edition of a book, newspaper, or
periodical—is construed as a single publication of the statements it
contains, and gives rise to only one cause of action which accrues as of
the moment of the initial publication, no matter how many copies are
later distributed.
19. Libel and Slander: Legislature. By enacting Neb. Rev. Stat. § 20-209(Reissue 2022), the Legislature codified the single publication rule
in Nebraska.
20. Actions: Libel and Slander: Time: Damages. Under Nebraska’s single
publication rule, there is just one cause of action for tort damages
founded upon a single publication, and that cause of action accrues at
the moment of the initial publication.
21. Statutes: Appeal and Error. Statutory language must be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
22. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
23. Statutes: Intent. A court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose to be served,
and then place on the statute a reasonable construction which best
achieves the purpose of the statute, rather than a construction defeating
the statutory purpose.
24. Statutes: Words and Phrases. Generally, words grouped in a list within
a statute should be given related meaning.
25. Libel and Slander. Nebraska’s single publication rule, as codified in
Neb. Rev. Stat. § 20-209 (Reissue 2022), applies to internet postings and
publications.
26. Records: Appeal and Error. It is incumbent on the appellant to pre­
sent a record supporting the errors assigned; absent such a record, an
appellate court will affirm the lower court’s decision regarding those
errors.
27. Appeal and Error. To be considered by an appellate court, the party
asserting an alleged error must both specifically assign and specifically
argue it in the party’s initial brief.
28. ____. Where an appellant’s brief contains conclusory assertions unsup-
ported by a coherent analytical argument, the appellant fails to satisfy
the requirement that the party asserting the alleged error must both spe-
cifically assign and specifically argue it in the party’s initial brief.
29. Pleadings: Appeal and Error. An appellate court reviews de novo a
lower court’s dismissal of a complaint for failure to state a claim.
- 305 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 30230. Disciplinary Proceedings. Under Neb. Ct. R. § 3-322, reports of
alleged attorney misconduct and grievances submitted to the Nebraska
Supreme Court’s Counsel for Discipline are absolutely privileged and no
lawsuit predicated thereon may be instituted.
Appeals from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
William R. Harris for appellants.
Michael J. Decker for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
An attorney filed two separate lawsuits alleging that he
and his law firm were defamed by a negative review posted
on the law firm’s Google business page. The district court
granted summary judgment in favor of the defendants and dis-
missed both lawsuits. On appeal, the attorney assigns multiple
errors, including that the district court erred in relying on the
single publication rule to determine when the defamation claim
accrued. We moved these appeals to our docket primarily to
address that issue.
We conclude the district court properly applied the single
publication rule, and we find no merit to the remaining assign-
ments of error. We therefore affirm the judgments of the dis-
trict court.
I. BACKGROUND
Timothy L. Ashford is an attorney in Omaha, Nebraska, and
his law practice is Timothy L. Ashford PC LLO (collectively
Ashford). Ashford was hired by Antonio Tate to represent
him regarding a personal injury claim arising from a 2016
automobile collision. Antonio and his minor children were
injured in another collision in 2017, and Ashford was retained
to represent them on those personal injury claims too. Both
- 306 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302Antonio and his wife, Andrea Tate, communicated with Ashford
regarding the representation.
In November 2018, Ashford emailed Antonio and Andrea
to inform them he was ending his representation. At that
point, none of the claims arising from the collisions had been
resolved. Ashford provided Antonio and Andrea with notice of
attorney liens totaling approximately $5,900.
1. Letter
In response to Ashford’s email, Andrea sent Ashford a let-
ter dated December 13, 2018. Several of Ashford’s claims are
based on Andrea’s letter, so we describe it in some detail.
The letter stated that Antonio and Andrea were surprised by
Ashford’s decision to terminate his representation; they tried
to contact him for an explanation and to obtain their case files,
but received no response. The letter continued:
Antonio and I understand that you should be compen-
sated for any billable hours spent on Antonio’s case(s),
and we are in complete agreement to do exactly that.
However, we also know that we have a right to request
an accounting (summary) of your billable hours spent, per
activity [in] both case(s).
The letter stated that to “mitigate any concerns of false bill-
ing” and to “reach an amicable agreement” on fees, Ashford
should cancel his attorney liens and provide Antonio and
Andrea with certain documentation regarding his fees. The
letter requested copies of the case files relating to the claims
against both drunk drivers, an itemized summary of Ashford’s
billable hours, copies of any letters Ashford sent to insurance
companies, documentation of the liens, and copies of all other
correspondence related to the injury claims.
The letter continued: “[P]lease be advised that this letter
serves as formal notice of our intent to file grievance(s) with
the following entities . . . if our requests are not complied
with by your office no later than end of business (5PM) on
January 10, 2019.” The letter listed several entities with whom
- 307 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302grievances would be filed, including the State of Nebraska
Attorney Grievance Commission, the Nebraska Supreme
Court’s Counsel for Discipline, and the Nebraska State Bar
Association. The letter also stated that Andrea would “be pro-
viding reviews and comments to all other relevant sites regard-
ing our experience with you.” The letter included Andrea’s
email address.
2. Grievance
In March 2019, the Counsel for Discipline received an email
with an attached grievance letter pertaining to Ashford. The
name “Andrea D. Tate” appeared on the signature line of the
grievance letter. The email described the attached letter as “my
formal written grievance” and generally read as though both
the email and the attached grievance letter had been authored
by Andrea. But the email was sent from an account with the
username “Roses Roses,” and it was copied to “ANDREA
TATE - Niece” at the email address Andrea had listed in her
December 13 letter to Ashford. Counsel for Discipline sent a
copy of the grievance to Ashford and requested a response.
Our appellate record does not disclose the current status of
this grievance.
3. Google Review
On March 20, 2019, Roses Roses posted a review on
Ashford’s Google business page that stated, in its entirety, “If
you’re looking for a disheveled, unorganized, unreliable attor-
ney with questionable ethics he’s your man . . . .”
On May 9, 2019, Ashford sent a letter to Andrea demand-
ing that she “immediately remove the unsubstantiated review
posted by Roses Roses aka Andrea Tate to the Timothy
Ashford Google Business Review.” Ashford’s letter included a
draft complaint and indicated he would file the complaint and
“seek damages for the defamatory statement” if the post was
not immediately removed.
On May 17, 2019, Andrea responded to Ashford’s letter
using the same email account she had previously given him.
- 308 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302Andrea’s email advised Ashford that she had not posted a
Google review of either Ashford or his business.
4. Lawsuits
Ashford ultimately filed two lawsuits in the district court
for Douglas County premised on the Google review—one law-
suit was filed in 2019 and the other was filed in 2020. Both
lawsuits were assigned to the same district court judge. As rel-
evant to the issues raised on appeal, we set out the procedural
history of both lawsuits.
(a) 2019 Lawsuit
On December 11, 2019, Ashford filed a complaint against
Andrea; Roses Roses; “John Does, 1-100”; and “Jane Does,
1-100.” The complaint specifically alleged that “Defendant
Andrea Tate is Defendant Roses Roses,” and it broadly
alleged the defendants “published false and defamatory state-
ments” concerning Ashford to the Counsel for Discipline
and on the internet in a Google business review. Ashford’s
complaint sought money damages and injunctive relief for
claims he styled as libel/defamation, false light, intentional
infliction of emotional distress, unauthorized practice of law,
and extortion.
Using certified mail, summons and a copy of the complaint
were sent to “Andrea Tate” and “Roses Roses c/o Andrea
Tate” at the same Omaha address. Both certified mail receipts
were signed on December 12, 2021, by “Coranna Thompson.”
Our appellate record does not tell us anything about this
person or her relationship, if any, to the named defendants.
Thereafter, only Andrea entered an appearance in the case.
(i) PreAnswer Motions
In February 2020, Andrea filed a motion to dismiss the
complaint. Shortly thereafter, Ashford filed a motion for
default judgment against Roses Roses and a motion to recuse
the trial judge. The court held a consolidated hearing on all
three motions. That hearing was not included in our appellate
- 309 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302record, but we can glean some information from the court’s
March 2020 order ruling on the motions.
Andrea’s motion to dismiss was brought pursuant to Neb.
Ct. R. Pldg. § 6-1112(b)(6) and asserted that none of the claims
in Ashford’s complaint stated a claim upon which relief could
be granted. The district court sustained that motion in part,
dismissing the claims asserting intentional infliction of emo-
tional distress, unauthorized practice of law, and extortion. It
overruled the motion as to the remaining claims, allowing the
claims of libel/defamation and false light to proceed.
Ashford’s motion for default judgment against Roses
Roses asserted that he perfected service on this defendant
when “Coranna Thompson” signed the certified mail receipt
directed to “Roses Roses c/o Andrea Tate.” A hearing was
held on the motion, but as stated, it was not included in our
appellate record.
The court overruled the motion for default judgment, citing
a general failure of proof. The court’s order indicated Ashford
had argued that “Andrea Tate and Roses Roses are one and
the same person.” But Ashford had offered “no evidence that
[Roses Roses] is the same person as Andrea Tate, who has
entered an appearance, or that [Roses Roses] ever received
notice of the lawsuit.” Alternatively, the court found there was
“no evidence that [Roses Roses] is a real person.”
In a separate motion, Ashford moved to recuse the district
court judge. The motion to recuse was not included in our
appellate record. But the order denying the motion recites
that Ashford sought recusal of the presiding judge because
Ashford had sued the judge and others in a 2017 federal court
lawsuit alleging racial discrimination in the process used
in Douglas County to appoint lawyers for indigent criminal
defendants. In denying Ashford’s motion to recuse, the judge
reasoned the federal lawsuit had been dismissed in 2018 for
lack of jurisdiction, 1 and there was “no reason to recuse on
these facts.”
1
See Ashford v. Douglas County, 880 F.3d 990 (8th Cir. 2018).
- 310 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302(ii) Second Motion for Default Judgment
and Order of Dismissal
In June 2020, Ashford filed another motion for default judg-
ment against Roses Roses. This motion recited that notice of
the lawsuit had been published in a legal newspaper on three
consecutive dates, that Roses Roses had failed to answer, and
that she was therefore in default. A hearing was held on this
motion, but it was not included in our appellate record.
In August 2020, the district court entered an order over-
ruling the second motion for default judgment. In the same
order, the court formalized dismissal of the action as against
Roses Roses and all Doe defendants pursuant to Neb. Rev.
Stat. § 25-217 (Cum. Supp. 2022). The court’s order noted
that although Ashford had purported to serve these defendants
by publication, he had not followed the statutory procedure
for doing so. The court thus found the action stood dis-
missed without prejudice as to Roses Roses and the Doe
defendants because they had not been properly served within
the time prescribed by § 25-217 and had not entered a volun-
tary appearance.
(iii) Amended Complaint
In October 2020, Ashford filed an amended complaint nam-
ing Andrea as the only defendant. The amended complaint
alleged that Andrea either authored the March 20, 2019,
Google review or directed Roses Roses to do so. As rel-
evant to the issues in this appeal, Ashford’s amended com-
plaint alleged claims styled as libel/defamation and false light.
Andrea’s answer to the amended complaint generally denied
liability for these claims and affirmatively alleged that Andrea
“is not the person identified as Roses Roses.”
(b) 2020 Lawsuit
In August 2020, shortly after the district court dismissed
the 2019 lawsuit against Roses Roses without prejudice for
failure to perfect service under § 25-217, Ashford filed a new
- 311 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302lawsuit against Roses Roses; “John Does, 1-100”; and “Jane
Does, 1-100.” The 2020 complaint alleged these defendants
had “published false and defamatory statements concerning
[Ashford] on the internet Google Business Review.” It alleged
the defamatory statements were published at an “unknown
time and as recent[ly] as August 31, 2020.” The 2020 com-
plaint alleged claims styled as libel/defamation, false light,
and intentional infliction of emotional distress.
Ashford filed a motion for substitute service, supported by
an affidavit stating, “I am unable to serve Roses Roses with
a Summons and Complaint or by certified mail because her
identity cannot be ascertained and Roses Roses can not be
located.” The district court granted the motion for substitute
service; Ashford thereafter published notice for three consecu-
tive weeks.
Roses Roses filed an answer alleging her actual name is
Rose Thompson, and she is a resident of Texas. For ease of
reference, this opinion will use “Thompson” when referring
collectively to Roses Roses and Rose Thompson. Thompson’s
answer denied liability for the various claims and alleged sev-
eral affirmative defenses, including that the complaint failed
to state a claim upon which relief can be granted and the
claims were barred by the statute of limitations.
5. Summary Judgment Motions
In July 2021, Andrea moved for summary judgment in the
2019 lawsuit and Thompson moved for summary judgment in
the 2020 lawsuit. One week later, Ashford moved for summary
judgment in the 2020 lawsuit only. A consolidated hearing was
held on the competing summary judgment motions.
The undisputed evidence adduced at the summary judgment
hearings established Thompson is Andrea’s aunt and they have
a close relationship. Thompson helped Andrea draft the griev-
ance letter to the Counsel for Discipline, and the grievance was
emailed from Thompson’s personal email account. The alias
Thompson uses with that account is “Roses Roses.”
- 312 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302In Thompson’s affidavit, she admitted to writing and post-
ing the Google business review of Ashford on March 20,
2019, as Roses Roses. Thompson averred that Andrea had
never been given access to her email or permission to post
things on the internet using Thompson’s name, alias, or email.
Thompson also denied consulting with Andrea before posting
the Google review. Thompson’s affidavit included a copy of
the full Google review she posted on March 20, as well as a
lengthy response to that review that Ashford posted nearly 2
years later.
Andrea, in her affidavit, denied writing or posting the
Google review and denied any knowledge of the review
before it was posted by Roses Roses. She also denied ever
using the alias “Roses Roses” or the email address associated
with Thompson.
The court ruled on the competing summary judgment
motions in separate orders entered on October 1, 2021. In
addressing Andrea’s summary judgment motion, the court con-
sidered only those claims that survived the court’s earlier
ruling on the motion to dismiss: the libel/defamation and
false light claims. The court noted those claims were based
exclusively on the unfavorable Google review, and it found
the evidence was undisputed that Thompson, and not Andrea,
had written and posted that review. Concluding there was
no evidence that Andrea was responsible for the allegedly
defamatory Google review, the court granted Andrea’s motion
for summary judgment and dismissed the 2019 lawsuit against
her with prejudice.
In ruling on Thompson’s summary judgment motion, the
court first addressed whether the libel/defamation claim was
time barred under Nebraska’s 1-year statute of limitations. 2
The court found that Ashford’s false light claim was “sub-
sumed within the claim for libel,” and it addressed those
claims together. It found the claims were based on a single
2
Neb. Rev. Stat. § 25-208 (Reissue 2016).
- 313 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302unfavorable Google review, and the evidence was undisputed
that Thompson posted that review to the internet on March
20, 2019. Ashford did not dispute this date, but he argued his
claims were not time barred because “each time a user views
the unfavorable review on Google, there is a new publication,
and the statute of limitations period begins anew.”
The court rejected that argument, which it characterized as
advocating for application of a “multiple publication rule.”
It instead applied the “single publication rule,” which it
described as a rule under which “any mass communication
that is made at approximately one time . . . is construed as a
single publication of the statements it contains, thereby giving
rise to only one cause of action as of the moment of the initial
publication, no matter how many copies are later distributed.”
The district court noted the Nebraska Supreme Court had not
yet addressed whether the single publication rule applies to
internet publications in libel actions, but the Seventh Circuit
Court of Appeals, in an opinion collecting cases on the
issue, stated that “[e]very state court that has considered the
question applies the single-publication rule to information
online.” 3 After citing and discussing cases from other state
and federal courts, 4 the district court concluded “nearly all
the courts across the country have unanimously applied the
single-publication rule, [and] it is likely that Nebraska would
do the same.”
Applying that rule, the court found that publication of
the unfavorable Google review occurred on the date it was
3
Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 615 (7th Cir. 2013).
4
See, In re Philadelphia Newspapers, LLC, 690 F.3d 161 (3d Cir. 2012);
Van Buskirk v. The New York Times Co., 325 F.3d 87 (2d Cir. 2003); Lane
v. Strang Communications Co., 297 F. Supp. 2d 897 (N.D. Miss. 2003);
T.S. v. Plain Dealer, 194 Ohio App. 3d 30, 954 N.E.2d 213 (2011); Ladd
v. Uecker, 323 Wis. 2d 798, 780 N.W.2d 216 (Wis. App. 2010); Kaufman
v. Islamic Soc. of Arlington, 291 S.W.3d 130 (Tex. App. 2009); Woodhull
v. Meinel, 145 N.M. 533, 202 P.3d 126 (N.M. App. 2008); Churchhill v.
State, 378 N.J. Super. 471, 876 A.2d 311 (2005); Firth v. State, 98 N.Y.2d
365, 775 N.E.2d 463, 747 N.Y.S.2d 69 (2002).
- 314 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302originally posted to the internet—March 20, 2019. Because
Ashford’s defamation action against Thompson was not filed
until August 2020, the court concluded it was time barred.
The court also entered summary judgment on Ashford’s
claim of intentional infliction of emotional distress. On the
evidence adduced, it found the undisputed facts were not suf-
ficient, as a matter of law, to support recovery on such a claim
because Thompson’s conduct in posting the Google review
was not sufficiently extreme or outrageous. 5 The court there-
fore entered an order granting summary judgment in favor of
Thompson in the 2020 lawsuit and dismissing it with preju-
dice. In the same order, the court overruled Ashford’s motion
for summary judgment, and any other pending motions.
6. Appeals and Consolidation
Ashford timely appealed from the court’s orders granting
summary judgment in favor of Andrea and Thompson. We con-
solidated the appeals and moved them to our docket, primarily
to address the applicability of the single publication rule to
allegedly defamatory internet publications.
II. ASSIGNMENTS OF ERROR
Ashford filed an identical brief in both consolidated
appeals. These briefs assert 98 assignments of error that we
consolidate into 8: Ashford asserts, restated, that the dis-
trict court erred in (1) denying his motion to recuse the trial
judge, (2) overruling his motion for default judgment against
Roses Roses and dismissing Roses Roses from the 2019 law-
suit for lack of service, (3) granting Thompson’s motion for
summary judgment based on the single publication rule, (4)
ruling on the motions for summary judgment without proper
notice, (5) failing to find that Andrea impermissibly changed
5
See Brandon v. County of Richardson, 261 Neb. 636, 624 N.W.2d 604(2001) (holding it is for court to determine, in first instance, whether
defendant’s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery).
- 315 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302her testimony to support her motion for summary judg-
ment, (6) dismissing Ashford’s claim of intentional infliction
of emotion distress against Thompson, (7) denying several
motions to compel discovery without first holding a hear-
ing, and (8) dismissing Ashford’s claim of “civil extortion”
against Andrea.
III. STANDARD OF REVIEW
[1,2] A recusal motion is initially addressed to the discre-
tion of the judge to whom the motion is directed. 6 A 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 objec-
tive standard of reasonableness, even though no actual bias or
prejudice was shown. 7
[3,4] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law. 8 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted, and gives that
party the benefit of all reasonable inferences deducible from
the evidence. 9
[5,6] If the facts in a case are undisputed, the issue as to
when the statute of limitations begins to run is a question of
law. 10 When reviewing questions of law, an appellate court
6
Thompson v. Millard Pub. Sch. Dist. No. 17, 302 Neb. 70, 921 N.W.2d 589(2019).
7
Id.8
In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021), modified on
denial of rehearing 310 Neb. 389, 966 N.W.2d 268.
9
Id.10
Dutton-Lainson Co. v. Continental Ins. Co., 271 Neb. 810, 716 N.W.2d 87(2006).
- 316 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302has an obligation to resolve the questions independently of the
conclusion reached by the trial court. 11
[7,8] Generally, the control of discovery is a matter for
judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion. 12
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. 13
[9] A district court’s grant of a motion to dismiss is reviewed
de novo. 14
IV. ANALYSIS
[10] Before we consider Ashford’s assignments of error,
we first address the “Motion to Take Judicial Notice” he filed
shortly after oral argument before this court. Although judicial
notice may be taken at any stage of a proceeding, including on
appeal, 15 we overrule Ashford’s motion.
Ashford’s motion asks this court to take judicial notice of
numerous district court filings which appear in our appellate
record and several affidavits which appear nowhere in our
record. He generally contends the affidavits support his argu-
ment that the trial judge should have recused himself based
on a conflict of interest. The affidavits, which were attached
to Ashford’s motion, show they were executed in July and
August 2022, while this case was pending on appeal. There
is no indication these affidavits were offered into evidence at
any stage of the proceedings before the trial court. As such,
11
Id.12
Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956 N.W.2d
692 (2021).
13
Id.14
Main St Properties v. City of Bellevue, 310 Neb. 669, 968 N.W.2d 625(2022).
15
Hagelstein v. Swift-Eckrich, 257 Neb. 312, 597 N.W.2d 394 (1999).
- 317 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302Ashford’s motion for judicial notice is nothing more than an
improper attempt to expand the appellate record.
[11] Generally, it is not the function of an appellate court
to review evidence that was not presented to the trial court. 16
A bill of exceptions is the only vehicle for bringing evidence
before an appellate court; evidence which is not made a part of
the bill of exceptions may not be considered. 17
We conclude that none of the affidavits attached to
Ashford’s motion may properly be judicially noticed, 18 and
we soundly reject his attempt to expand the appellate record
with evidence not considered by the trial court. And, to the
extent Ashford’s motion also asks us to take judicial notice of
several district court filings in the cases under consideration, 19
we conclude it is unnecessary to do so because the documents
are already part of our appellate record. We therefore overrule
Ashford’s motion for judicial notice and strike the attach-
ments thereto.
1. No Error Related to
Motion to Recuse
[12-14] Ashford argues the trial judge erred in failing to
recuse himself in the 2019 lawsuit. The Nebraska Revised
16
Heineman v. Evangelical Luth. Good Sam. Soc., 300 Neb. 187, 912
N.W.2d 751 (2018) (rejecting appellee’s request to take judicial notice of
adjudicative facts outside appellate record).
17
Id.18
See Neb. Rev. Stat. § 27-201 (Reissue 2016) (judicially noticed fact must
be generally known within territorial jurisdiction of trial court or capable
of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned).
19
See, Pennfield Oil Co. v. Winstrom, 276 Neb. 123, 132, 752 N.W.2d
588, 598 (2008) (holding in “interwoven and interdependent cases,”
appellate court may examine its own records and take judicial notice of
proceedings and judgment in former action involving one of the parties);
State v. Norwood, 203 Neb. 201, 204, 277 N.W.2d 709, 711 (1979) (noting
court may “take judicial notice of its own records in the case under
consideration”).
- 318 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302Code of Judicial Conduct states that a judge shall recuse
himself or herself from any proceeding in which the judge’s
impartiality might reasonably be questioned, including when
the judge has a personal bias or prejudice concerning a party
or a party’s lawyer. 20 To demonstrate that a trial judge should
have recused himself or herself, the moving party must show
that a reasonable person who knew the circumstances of the
case would question the judge’s impartiality under an objec-
tive standard of reasonableness, even though no actual bias or
prejudice was shown. 21 One seeking to disqualify a judge on
the basis of bias or prejudice bears the heavy burden of over-
coming the presumption of judicial impartiality. 22
On this record, Ashford has not overcome the presumption
of judicial impartiality. As we read the district court’s order,
the only ground Ashford asserted for recusal was that he had
previously sued the trial judge in a federal lawsuit challeng-
ing the appointment process for criminal defense counsel
in Douglas County. Because that lawsuit had been resolved
several years earlier on procedural grounds and was no longer
pending, the judge found there was no reason to recuse him-
self. On this record, we cannot find the judge abused his dis-
cretion. Ashford does not direct us to any evidence suggesting
the trial judge was biased against him as a result of the prior
litigation, 23 and we see nothing that would cause a reasonable
person who knew the circumstances of the federal lawsuit to
question the judge’s impartiality to preside over an unrelated
matter involving Ashford several years later.
20
See Neb. Rev. Code of Judicial Conduct § 5-302.11(A)(1).
21
State v. Thomas, 311 Neb. 989, 977 N.W.2d 258 (2022); State v. Collins,
283 Neb. 854, 812 N.W.2d 285 (2012).
22
See id.23
See, e.g., Tierney v. Four H Land Co., 281 Neb. 658, 798 N.W.2d
586 (2011) (holding abuse of discretion for trial judge not to recuse
himself when he admitted personal bias against attorney handling case due
to attorney’s participation in pending judicial qualification proceedings
against another judge).
- 319 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302Nor are we persuaded by Ashford’s argument that the trial
judge was required to recuse himself based on this court’s rea-
soning in another case involving Ashford—State v. Rice. 24 In
Rice, Ashford appealed from a district court order denying his
application for attorney fees after serving as court-appointed
counsel in a postconviction matter. We reversed the judgment
and remanded the matter for further proceedings on the fee
application. In doing so, we noted the postconviction judge
was a named defendant in a then-pending federal lawsuit filed
by Ashford. In light of that circumstance, we stated it was
“prudent” 25 that upon remand, Ashford’s application for fees
should be assigned to a different judge.
Our reasoning in Rice does not support Ashford’s conten-
tion that it was an abuse of discretion for the trial judge here
to deny Ashford’s motion to recuse. It is true that the trial
judge in Rice, like the trial judge in the instant appeals, was
one of the Douglas County judges sued by Ashford in the
federal lawsuit challenging the process by which attorneys
were appointed to represent indigent criminal defendants in
Douglas County. But Rice did not involve a motion to recuse,
nor did Rice imply that a judge must recuse himself or herself
as a matter of course anytime the case involves a lawyer or
party who has previously sued the judge. To the contrary, Rice
simply noted there was a pending lawsuit between Ashford
and the trial judge assigned to the matter and concluded it
would be prudent on remand to reassign the matter to a dif-
ferent judge.
When Ashford moved for recusal in the instant case, the
federal lawsuit involving the trial judge was no longer pend-
ing. We reject Ashford’s contention that our reasoning in Rice
necessarily required the trial judge here to recuse himself from
presiding over any future case involving Ashford.
24
State v. Rice, 295 Neb. 241, 888 N.W.2d 159 (2016).
25
Id. at 253, 888 N.W.2d at 169.
- 320 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302On this record, Ashford has not met the heavy burden of
overcoming the presumption of judicial impartiality. We find
no abuse of discretion in denying the motion to recuse.
2. No Error Related to Dismissal
of Roses Roses
Ashford contends it was error for the district court to enter
an order formalizing the dismissal of the 2019 action as against
Roses Roses pursuant to § 25-217. That statute provides:
(1) An action is commenced on the day the complaint
is filed with the court.
(2) Each defendant in the action must be properly
served within one hundred eighty days of the commence-
ment of the action. . . .
(3) If any defendant is not properly served within the
time specified by subsection (2) of this section then the
action against that defendant is dismissed by operation
of law. The dismissal is without prejudice and becomes
effective on the day after the time for service expires. 26
[15,16] Section 25-217 is self-executing, so that an action is
dismissed by operation of law, without any action by either the
defendant or the court, as to any defendant who is named in
the civil action and not served with process within the time set
forth in the statute. 27 And after dismissal of a civil action by
operation of law under § 25-217, there is no longer an action
pending and the district court has no jurisdiction to make any
further orders except to formalize the dismissal. 28
Ashford argues that instead of dismissing the 2019 action
as against Roses Roses under § 25-217, the court should
have found she was properly served but failed to answer, and
thus granted his motions for default judgment against her.
We disagree.
26
§ 25-217.
27
Childs v. Frakes, 312 Neb. 925, 981 N.W.2d 598 (2022).
28
Id.- 321 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302The record shows that initially, Ashford attempted service by
certified mail on “Roses Roses c/o Andrea Tate” at an Omaha
address, and the certified mail receipt was signed by “Coranna
Thompson.” On appeal, Ashford contends, “It is reasonable to
believe that Coranna Thompson apprised . . . Roses Roses of
the complaint.” 29 But he adduced no evidence to support this
contention, and the record does not disclose the relationship, if
any, of Coranna Thompson to either Roses Roses or Andrea.
And even though it was Ashford’s contention, at that time, that
Andrea and Roses Roses were the same person, he offered no
evidence to support that theory either.
Later, Ashford attempted service on Roses Roses by publi-
cation, but the court found that he failed to comply with the
proper procedure for service by publication. 30 Ashford directs
us to nothing in the record suggesting otherwise. The court did
not err in finding Roses Roses was not properly served.
Nor did the court err in formalizing the dismissal of Roses
Roses under § 25-217. Indeed, on this record, the court did
not have jurisdiction to do anything other than formalize the
dismissal as against this defendant. The 2019 lawsuit was
commenced on December 11, 2019, and the record contains
no evidence that Ashford properly served Roses Roses within
the 180-day period set forth in § 25-217. The action therefore
stood dismissed as a matter of law as against Roses Roses.
This assignment has no merit.
3. Single Publication Rule
Properly Applied
[17] Ashford argues the district court erred in granting
summary judgment in favor of Thompson on the defamation
and false light claims. The district court found these claims
29
Brief for appellant at 31.
30
See Neb. Rev. Stat. § 25-517.02 (Reissue 2016) (authorizing service by
publication “[u]pon motion and showing by affidavit that service cannot
be made with reasonable diligence by any other method provided by
statute . . .”).
- 322 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302were barred by the applicable statute of limitations in § 25-208,
under which actions for libel or slander must be brought
“[w]ithin one year.” Our cases hold that the limitations period
in § 25-208 “commences to run upon [the] publication of the
defamatory matter which forms the basis of the action.” 31
As stated, Ashford does not dispute that the Google review
was first posted on March 20, 2019. But before the district
court, and on appeal to this court, he argues the unfavorable
Google review should be treated as a “continuing tort,” 32 with
a new limitations period accruing each day the review remains
posted on the internet. The district court rejected this argu-
ment, reasoning that courts across the country unanimously
apply the single-publication rule to internet publications and
predicting “it is likely that Nebraska would do the same.”
We have not directly addressed whether a single publica-
tion rule or a multiple publication/continuing tort rule applies
to Nebraska defamation claims. This case thus presents two
issues of first impression: Does Nebraska follow the single
publication rule? And if so, does the rule apply to internet
postings? Before addressing these issues, we provide some
historical context for the single publication rule.
(a) Historical Overview of
Single Publication Rule
[18] At common law, each delivery of a libelous statement
to a third party was generally considered a new publication
giving rise to a new cause of action. 33 But as mass publishing
31
Patterson v. Renstrom, 188 Neb. 78, 79, 195 N.W.2d 193, 194 (1972).
See, also, Tennyson v. Werthman, 167 Neb. 208, 211, 92 N.W.2d 559,
561 (1958) (holding action for libel must be commenced within 1 year of
“publication of the defamatory matter”).
32
Brief for appellant at 41.
33
See, e.g., Duke of Brunswick v. Harmer, 117 Eng. Rep. 75, 14 Q.B. 185
(1849) (permitting cause of action for each copy of newspaper printed
with libelous statement).
- 323 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302became more common, the single publication rule developed. 34
Under this rule, any communication that is made at approxi-
mately one time—such as a television broadcast or a single
edition of a book, newspaper, or periodical—is construed as a
single publication of the statements it contains, and gives rise
to only one cause of action which accrues as of the moment
of the initial publication, no matter how many copies are later
distributed. 35
The Restatement (Second) of Torts describes the single
publication rule as a rule “applied in cases where the same
communication is heard at the same time by two or more
persons.” 36 The Restatement explains that the rule is justified
by the necessity of protecting defendants and the courts from
the numerous suits that might be brought for the same words
if each person reached by such a large-scale communication
could serve as the foundation for a new action. 37 According to
the Restatement, the “great majority of the states now follow
‘the single publication rule.’” 38 The Restatement also recog-
nizes that the “Uniform Single Publication Act, promulgated in
1952,” effectively codified the single publication rule. 39
(b) Nebraska Follows Single
Publication Rule
In 1979, the Nebraska Legislature adopted § 1 of the
1952 version of the Uniform Single Publication Act, which
34
See Sapna Kumar, Website Libel and the Single Publication Rule, 70 U.
Chi. L. Rev. 639 (2003).
35
Clark v. Viacom Intern. Inc., 617 Fed. Appx. 495 (6th Cir. 2015). See, also,
T.S., supra note 4, 194 Ohio App. 3d at 32, 954 N.E.2d at 214 (holding
under single publication rule, “‘right to file suit on a cause of action for
libel accrues upon the first publication of the matter complained of’”).
36
Restatement (Second) of Torts § 577A, comment b. at 209 (1977).
37
Id., comment c.
38
Id., § 577A, Reporter’s Note at 445.
39
See id. at 446.
- 324 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302it codified at Neb. Rev. Stat. § 20-209 (Reissue 2022). That
statute provides:
No person shall have more than one cause of action for
damages for libel or slander or invasion of privacy or any
other tort founded upon any single publication, exhibi-
tion, or utterance, such as any one issue of a newspaper or
book or magazine or any one presentation to an audience
or any one broadcast over radio or television or any one
exhibition of a motion picture. Recovery in any action
shall include all damages for any such tort suffered by the
plaintiff in all jurisdictions.
[19,20] This court has referenced § 20-209 several times
since its enactment, but we have not expressly construed or
applied it. 40 We do so now, and hold that by enacting § 20-209,
the Legislature codified the single publication rule in Nebraska.
And under that rule, there is just one cause of action for tort
damages founded upon a single publication, 41 and that cause of
action accrues at the moment of the initial publication. 42
(c) Nebraska’s Single Publication Rule
Applies to Internet Publications
Next, we consider whether Nebraska’s single publication
rule, as codified in § 20-209, applies to internet publications.
40
See Lewis v. Craig, 236 Neb. 602, 463 N.W.2d 318 (1990) (superseded
by statute on other grounds as stated in Mann v. Mann, 312 Neb. 275,
978 N.W.2d 606 (2022); citing, but not discussing, § 20-209). See, also,
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816(2015) (holding, without referencing § 20-209, that where plaintiff asserts
claims of both libel and false light invasion of privacy based on same
publication, false light claim is subsumed within defamation claim and
is not separately actionable). But see Bojanski v. Foley, 18 Neb. App.
929, 943, 798 N.W.2d 134, 146 (2011) (construing § 20-209 to prevent
“multiple recoveries from a single publication” but not to force plaintiff,
at pleading stage, to “elect among libel, slander, and invasion of privacy
with respect to the claim a plaintiff advances resulting from a single
publication”).
41
See § 20-209.
42
See Clark, supra note 35. See, also, T.S., supra note 4.
- 325 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302This requires statutory interpretation, and we apply famil-
iar principles.
[21-23] Statutory language must be given its plain and
ordinary meaning, and an appellate court will not resort to
interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous. 43 When constru-
ing a statute, a court must determine and give effect to the
purpose and intent of the Legislature as ascertained from the
entire language of the statute considered in its plain, ordi-
nary, and popular sense. 44 A court must look at the statutory
objective to be accomplished, the problem to be remedied,
or the purpose to be served, and then place on the statute
a reasonable construction which best achieves the purpose
of the statute, rather than a construction defeating the statu-
tory purpose. 45
[24] Section 20-209 does not expressly reference internet
publications, presumably because they did not exist when the
statute was enacted. But when the statute references a “single
publication, exhibition, or utterance,” it includes a list of pub-
lications “such as any one issue of a newspaper or book or
magazine or any one presentation to an audience or any one
broadcast over radio or television or any one exhibition of
a motion picture.” 46 The term “such as” preceding the list in
§ 20-209 is akin to the term “including,” which we have held
connotes that the list is not exhaustive and suggests there are
other items includable although not specifically enumerated. 47
Similarly, words grouped in a list within a statute should
be given related meaning. 48
43
Echo Group v. Tradesmen Internat., 312 Neb. 729, 980 N.W.2d 869(2022).
44
Id.45
Id.46
§ 20-209.
47
See State v. Jedlicka, 305 Neb. 52, 938 N.W.2d 854 (2020).
48
Id.- 326 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302For purposes of the single publication rule, we see no mean-
ingful distinction between a single posting on the internet; a
single issue of a newspaper, magazine, or book; or a single
broadcast over the radio or television. Each is a mass publica-
tion that can be viewed or heard simultaneously by multiple
people. As we explain, other courts agree with this reason-
ing, and we think such reasoning best achieves the purpose of
§ 20-209.
In Firth v. State, 49 the New York Court of Appeals held
that internet publications should be treated the same as pub-
lications made through traditional mass media, reasoning that
websites “resemble [publications] contained in traditional mass
media, only on a far grander scale.” The Firth court also
explained that applying a multiple publication rule to internet
postings would result in endless retriggering of the statute of
limitations, which could have a negative effect on the open
and pervasive dissemination of information and ideas. Other
state courts have articulated similar rationales and reached the
same conclusion. 50
Likewise, federal courts have universally embraced apply-
ing the single publication rule to defamation actions based
on internet postings or publications. 51 As the Seventh Circuit
Court of Appeals explained in Pippen v. NBCUniversal
Media, LLC: 52 “The theme of [all the] decisions is that
excluding the Internet from the single-publication rule would
49
Firth, supra note 4, 98 N.Y.2d at 370, 775 N.E.2d at 465, 747 N.Y.S.2d
at 71.
50
See, e.g., Glassdoor, Inc. v. Andra Group, LP, 575 S.W.3d 523 (Tex.
2019); Ladd, supra note 4; Kaufman, supra note 4; Woodhull, supra note
4; Traditional Cat Assn., Inc. v. Gilbreath, 118 Cal. App. 4th 392, 13 Cal.
Rptr. 3d 353 (2004).
51
See, e.g., Pippen, supra note 3; In re Philadelphia Newspapers, LLC,
supra note 4; Van Buskirk, supra note 4; Sears v. Russell Road Food
and Beverage, LLC, 460 F. Supp. 3d 1065 (D. Nev. 2020); Norkin v. The
Florida Bar, 311 F. Supp. 3d 1299 (S.D. Fla. 2018); Lane, supra note 4.
52
Pippen, supra note 3, 734 F.3d at 615.
- 327 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302eviscerate the statute of limitations and expose online publish-
ers to potentially limitless liability.”
[25] Based on the foregoing, we hold that Nebraska’s single
publication rule, as codified in § 20-209, applies to internet
postings and publications. We thus agree with the district court
that the unfavorable Google review posted on March 20, 2019,
was a single publication under § 20-209 and that Ashford
could not allege “more than one cause of action for damages
for libel or slander or invasion of privacy or any other tort” 53
founded on that single publication.
Ashford’s single cause of action accrued on March 20, 2019,
the date Roses Roses first posted the Google review. Thus, by
the time Ashford filed the defamation action against Roses
Roses in August 2020, it was time barred. The district court
properly dismissed it on that basis.
4. Assigned Errors Relating
to Summary Judgment
Ashford assigns various procedural and substantive errors
pertaining to the entry of summary judgment in favor of
Andrea and Thompson. We address these arguments in turn and
conclude none have merit.
(a) Alleged Procedural Errors
Ashford argues that the trial court committed three proce-
dural errors when it ruled on the motions for summary judg-
ment. First, he argues the court improperly “converted” another
motion into a motion for summary judgment without giving
him proper notice. Next, he argues that he filed motions to
compel discovery while the summary judgment motions were
pending and he contends that the court should have ruled on
those discovery disputes before it decided the summary judg-
ment motions. And finally, he argues the court erred in over-
ruling his motions to compel discovery without first holding
53
§ 20-209.
- 328 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302a hearing. Some additional background is necessary to under-
stand these arguments.
On July 30, 2021, the court held a consolidated hearing on
the competing motions for summary judgment. Before the July
30 hearing, Andrea and Thompson filed an index of evidence
listing 6 summary judgment exhibits, and Ashford filed an
index of evidence listing 19 summary judgment exhibits. The
court took up Andrea’s motion for summary judgment first.
Andrea offered, and the court received, six exhibits in support
of the motion. When it was Ashford’s turn to offer evidence,
his counsel informed the court he had “filed a motion for
continuance.” The court responded: “Did you tell anybody
about that? Like the bailiff? You didn’t, did you?” Ashford’s
counsel responded, “No.” Ashford’s counsel then offered 19
exhibits, one of which was an affidavit from Ashford. The
court received only the first two pages of Ashford’s affidavit
as evidence in support of the motion to continue. In those
two pages, Ashford stated he needed a continuance to obtain
pertinent discovery, including the depositions of Andrea and
Thompson. Our record shows the court continued the sum-
mary judgment hearing to September 1.
After securing the continuance, Ashford noticed a depo-
sition of Thompson to be held in Omaha on August 25,
2021. Pursuant to that notice, Thompson traveled from her
home in Texas to attend the deposition in Omaha. When
Ashford canceled Thompson’s deposition shortly before it was
to be held, Thompson filed a motion for discovery sanctions
seeking reimbursement for her travel expenses. Thompson’s
motion included a notice setting the matter for hearing on
September 1.
On August 23, 2021, Ashford filed motions to com-
pel discovery in the 2020 action against Thompson, gener-
ally challenging the sufficiency of her previous responses
to interrogatories, requests for production, and requests for
admission. These motions to compel did not include a notice
of hearing. On August 30, Ashford filed a motion to compel
- 329 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302discovery in the 2019 action against Andrea, claiming she
had provided “evasive” answers to discovery. This motion to
compel contained a notice of hearing setting the matter for
September 1.
At the hearing on September 1, 2021, Ashford made no
reference to either of his recently filed motions to compel.
Instead, Ashford’s counsel informed the court that he thought
the only matter to be taken up that day was Thompson’s motion
for discovery sanctions. Ashford told the court he thought the
continued hearing on the summary judgment motions was set
for September 3. After checking with the bailiff, the judge con-
firmed, on the record, that the September 1 hearing was sched-
uled to address the continued motions for summary judgment,
as well as Thompson’s motion for discovery sanctions.
The motion for discovery sanctions was taken up first,
and eventually was overruled. Ashford then made an oral
motion to continue the summary judgment hearing again, stat-
ing he wanted to offer additional evidence. He did not identify
or describe such evidence or explain how it would impact
the summary judgment motions. The court denied Ashford’s
request for another continuance and instead proceeded with the
hearing on the summary judgment motions.
In support of Andrea’s and Thompson’s motions for sum-
mary judgment, the court received the same six exhibits
offered by Andrea at the prior summary judgment hearing.
The court also received into evidence, for purposes of sum-
mary judgment, the same 19 exhibits previously offered by
Ashford to support his requested continuance. Additional
exhibits were offered by all parties and received into evidence,
after which the court took the motions for summary judgment
under advisement.
Our appellate record does not show that a hearing was ever
held on Ashford’s motions to compel discovery. However,
the record shows those motions were effectively overruled
by language in the court’s October 1, 2021, orders grant­
ing summary judgment in favor of Andrea and Thompson,
- 330 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302which expressly stated “any Motions filed and not ruled on
are denied.”
(i) No Improper Conversion of Motion
Ashford argues the district court erred when, at the hearing
on September 1, 2021, it “received evidence which converted
a motion hearing into a motion for summary judgment without
giving [Ashford] notice of the changed status of the motion
and a reasonable opportunity to present all material made
pertinent to such a motion by the rules governing summary
judgment.” 54 In support of this argument, Ashford cites to
Nebraska cases applying the court rule that governs when a
court receives evidence on a motion under § 6-1112(b)(6) and
thus treats the motion as one for summary judgment. 55 But that
rule has no application here.
Neither the July 30, 2021, hearing nor the September 1 hear-
ing were set to address a motion under § 6-1112(b)(6). Instead,
our record shows that both hearings were set to address
motions for summary judgment. It is true that during the
September 1 hearing, Ashford expressed confusion over what
was to be taken up that day; he told the court he believed the
summary judgment motions had been continued to September
3. But there is nothing in our record supporting this belief.
And when Ashford asked, during the September 1 hearing, to
continue the summary judgment hearing again, he did not raise
insufficient notice as the reason.
[26] It is incumbent on the appellant to present a record
supporting the errors assigned; absent such a record, an appel-
late court will affirm the lower court’s decision regarding
54
Brief for appellant at 22.
55
See, e.g., Britton v. City of Crawford, 282 Neb. 374, 380, 803 N.W.2d 508,
514 (2011) (internal quotation marks omitted) (applying Neb. Ct. R. Pldg.
§ 6-1112 and holding that when trial court receives evidence that converts
motion to dismiss into motion for summary judgment, it must give parties
“notice of the changed status of the motion” and “reasonable opportunity
to present all material made pertinent to such a motion by statute”).
- 331 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302those errors. 56 Here, the record shows the September 1, 2021,
hearing was merely a continuation of the previously set sum-
mary judgment hearing. We reject Ashford’s contention that
the court somehow “converted” the September 1 hearing into a
summary judgment hearing without notice.
Nor does the record support Ashford’s suggestion that he
was denied a reasonable opportunity to present evidence on
the summary judgment motions. To the contrary, our record
shows that in addition to the 19 exhibits he offered at the July
30, 2021, hearing and offered again at the September 1 hear-
ing, Ashford introduced several more exhibits into evidence at
the September 1 hearing; all were received. And to the extent
Ashford’s appellate briefing can be construed to argue that
the court’s refusal to grant another continuance prevented him
from offering additional evidence in opposition to summary
judgment, Ashford neither described such evidence nor made
an offer of proof in the district court. He has thus failed to
preserve such an argument for appellate review. 57
On this record, we reject Ashford’s arguments that he was
not given adequate notice of the continued summary judg-
ment hearing and that he was denied a reasonable opportunity
to present additional evidence pertaining to the motions for
summary judgment.
(ii) No Error on Motions
to Compel
Ashford argues the district court erred by ruling on the
summary judgment motions before it ruled on his motions to
compel discovery. He also argues the court erred in denying his
motions to compel without first holding a hearing. We address
these arguments together, and reject them both.
56
Hynes v. Good Samaritan Hosp., 285 Neb. 985, 830 N.W.2d 499 (2013).
57
See Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018) (argument
that court erroneously prevented appellant from offering certain rebuttal
evidence was not preserved for appellate review because no offer of proof
was made regarding excluded evidence).
- 332 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302Generally, the control of discovery is a matter for judi-
cial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion. 58
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. 59
Ashford is correct that no hearings were held on his motions
to compel, but he has not shown that was due to any judicial
error. Instead, it is explained by the fact that Ashford failed to
include any notice of hearing on two of the three motions to
compel, despite the applicable local rule. 60 And although one
of Ashford’s motions to compel did include a hearing notice
setting the matter for September 1, 2021, the record shows
that when Ashford appeared on that date he did not, at any
point, ask to take the matter up. To the contrary, he told the
court he believed the only matter set for hearing on that date
was Thompson’s motion for discovery sanctions.
On this record, we cannot find that the court abused its
discretion in failing to hold a hearing on Ashford’s motions to
compel discovery or in ruling on the pending summary judg-
ment motions before ruling on the motions to compel. These
assignments are without merit.
(b) Alleged Substantive Errors
(i) No Error in Relying on
Andrea’s Affidavit
Ashford assigns and argues that the court erred in grant-
ing summary judgment in favor of Andrea in the 2019 law-
suit, because, in doing so, it relied on Andrea’s undisputed
58
Eletech, Inc., supra note 12.
59
Id.
60
See Rules of Dist. Ct. of Fourth Jud. Dist. 4-2(B) (rev. 2022) (providing
that when filing pretrial motion which requires hearing, party must obtain
hearing date from judge or judge’s staff and must timely serve notice of
hearing on opposing party).
- 333 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302affidavit testimony stating she was not the person who posted
the Google review. According to Ashford, Andrea changed her
testimony on this issue to meet the exigencies of the litigation.
We disagree.
Ashford relies on the proposition that where a party—with-
out reasonable explanation—testifies to facts materially dif-
ferent concerning a vital issue, the change clearly being made
to meet the exigencies of pending litigation, such evidence is
discredited as a matter of law and should be disregarded. 61
We have said that in applying this rule, the important consid-
erations are that the testimony pertains to a vital point, that it
is clearly apparent the party has made the change to meet the
exigencies of the pending case, and that there is no rational or
sufficient explanation for the change in testimony. 62
Ashford notes that in Andrea’s affidavit dated July 14,
2021, she stated that she had never posted a Google review
of a business and that she did not post the Google review
at issue. He contends this statement is materially different
from the intent Andrea expressed in her letter of December
13, 2018, where she said that if an agreement could not be
reached on fees she would be “providing reviews and com-
ments to all other relevant sites regarding our experience with
you.” According to Ashford, this reflects a material change in
Andrea’s testimony on a vital point and there is no rational or
sufficient explanation for the change. As such, he argues the
court should have discredited Andrea’s affidavit testimony.
And he claims that without the affidavit testimony, there was
a material issue of fact as to who authored the Google review
that prevented summary judgment in Andrea’s favor.
We do not address whether the letter and affidavit are mate-
rially different, because Ashford’s argument fails for a differ-
ent reason: Andrea’s letter was not “testimony.” Pursuant to
Neb. Rev. Stat. § 25-1240 (Reissue 2016), “The testimony of
61
See, e.g., Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181 (2011).
62
Id.- 334 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302witnesses may be taken in four modes: (1) By affidavit; (2) by
deposition; (3) by oral examination; and (4) by videotape of
an examination conducted prior to the time of trial for use at
trial in accordance with procedures provided by law.”
Because Andrea’s unsworn letter was not testimony of any
sort, it cannot support Ashford’s claim that she materially
changed her testimony on the issue of who authored and posted
the Google review. The district court did not abuse its discre-
tion in relying on Andrea’s affidavit testimony.
(ii) Intentional Infliction of
Emotional Distress
Ashford also assigns that the district court erred in grant-
ing summary judgment in favor of Thompson on his claim
of intentional infliction of emotional distress. Regarding this
assignment, the only argument presented in Ashford’s initial
brief states:
The court erred in denying the intentional infliction
of emotional distress claim because the court denied
[Ashford’s] Motion for Summary Judgment which pre-
vented [Ashford] from introducing evidence of the inten-
tional infliction of emotional distress. . . . The court
must reverse the denial of the dismissal of the intentional
infliction of emotional distress. 63
[27,28] To be considered by an appellate court, the party
asserting the alleged error must both specifically assign and
specifically argue it in the party’s initial brief. 64 Where an
appellant’s brief contains conclusory assertions unsupported
by a coherent analytical argument, the appellant fails to sat-
isfy the requirement that the party asserting the alleged error
must both specifically assign and specifically argue it in the
party’s initial brief. 65
63
Brief for appellant at 46.
64
Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).
65
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022); State v. Chase, 310Neb. 160, 964 N.W.2d 254 (2021).
- 335 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302Because Ashford’s appellate briefing regarding this assigned
error is conclusory and lacks coherent analysis, we do not con-
sider this assignment.
5. No Error in Dismissing
Extortion Claim
Finally, Ashford argues the trial court “erred in dismissing
the civil extortion claim” 66 against Andrea. Ashford contends
the factual basis for this claim was the letter that Andrea wrote
to Ashford on December 13, 2018. That letter asked Ashford
to cancel his attorney liens and to provide certain documents
from his case file so the parties could “reach an amicable
agreement” on Ashford’s attorney fees. The letter also stated
that if Ashford did not comply with these requests, Andrea
would file attorney grievances with several entities, including
the Nebraska Supreme Court’s Counsel for Discipline.
Ashford characterizes this letter as “a Michael Avenatti
style attempt to extort an attorney.” 67 And he argues, without
citing to any Nebraska authority recognizing a civil cause of
action in tort for extortion, that the district court erred when
it dismissed this claim in response to Andrea’s motion under
§ 6-1112(b)(6).
[29] An appellate court reviews de novo a lower court’s
dismissal of a complaint for failure to state a claim. 68 Our de
novo review reveals no error in dismissing Ashford’s extor-
tion claim.
This case does not require that we address whether there
is any plausible legal basis for alleging a tort of civil extor-
tion in Nebraska. That is so because, as we explain, Ashford
cannot institute a claim of any sort premised on the grievance
filed with the Counsel for Discipline.
66
Brief for appellant at 25.
67
Id. at 26.
68
Millennium Laboratories v. Ward, 289 Neb. 718, 857 N.W.2d 304 (2014).
- 336 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
TIMOTHY L. ASHFORD, PC LLO V. ROSES
Cite as 313 Neb. 302[30] Under Neb. Ct. R. § 3-322, reports of alleged attor-
ney misconduct and grievances submitted to the Counsel for
Discipline are “absolutely privileged and no lawsuit predi-
cated thereon may be instituted.” Based on this rule, we held
in State ex rel. Counsel for Discipline v. Wright 69 that it was
misconduct for an attorney to threaten to sue someone for fil-
ing a grievance with the Counsel for Discipline. In that case,
the attorney claimed his former employees were threatening to
defame him and “extort” money from him by filing a griev-
ance with the Counsel for Discipline. 70 We found clear and
convincing evidence of misconduct when the attorney wrote
a letter threatening to sue the employees if they submitted
a grievance.
Ashford’s “civil extortion” claim sought to recover dam-
ages based on Andrea’s letter expressing her intent to report
alleged attorney misconduct to the Counsel for Discipline.
Because reports of alleged attorney misconduct and griev-
ances are absolutely privileged and no lawsuit may be predi-
cated on such a report, it was not error for the district court
to dismiss Ashford’s extortion claim for failure to state a
claim on which relief can be granted. This assignment of error
is meritless.
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court in both actions.
Affirmed.
69
State ex rel. Counsel for Dis. v. Wright, 277 Neb. 709, 764 N.W.2d 874(2009).
70
Id. at 725, 764 N.W.2d at 887.