Becker v. Walton

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/21/2016 08:10 AM CDT
- 109 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
Douglas S. Becker, appellant, v.
Tonya M. Walton, appellee.
___ N.W.2d ___
Filed June 21, 2016. No. A-15-367.
1. Pretrial Procedure: Appeal and Error. On appellate review, decisions
regarding discovery are generally reviewed under an abuse of discre-
tion standard.
2. Trial: Appeal and Error. The standard of review of a trial court’s
determination of a request for sanctions is whether the trial court abused
its discretion.
3. Rules of the Supreme Court: Pretrial Procedure: Costs. A hearing on
a motion for expenses pursuant to Neb. Ct. R. Disc. § 6-337(c) is a legal
proceeding entirely separate from the underlying proceedings concern-
ing the merits of the case.
4. Costs: Appeal and Error. The appellate court reviewing a decision on a
motion for expenses is to concern itself solely with the evidence estab-
lished and produced at that hearing.
5. Rules of the Supreme Court: Pretrial Procedure: Appeal and Error.
The determination of an appropriate sanction under Neb. Ct. R. Disc.
§ 6-337(c) rests within the discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion.
6. Rules of the Supreme Court: Pretrial Procedure: Costs: Proof. Once
the party making a motion for sanctions proves the truth of the matter
previously denied and that reasonable expenses were incurred in doing
so, the burden then shifts to the nonmoving party to prove, by a prepon-
derance of the evidence, one of the four exceptions enumerated in the
discovery rule.
7. Rules of the Supreme Court: Pretrial Procedure: Proof. To be appli-
cable, Neb. Ct. R. Disc. § 6-337(c) requires that a party must fail to
admit the truth of any matter requested, and the party requesting the
admissions must prove the truth of the matter.
- 110 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
8. Rules of the Supreme Court: Pretrial Procedure. Sanctions under
Neb. Ct. R. Disc. § 6-337 exist not only to punish those whose conduct
warrants a sanction but to deter those, whether a litigant or counsel,
who might be inclined or tempted to frustrate the discovery process by
their ignorance, neglect, indifference, arrogance, or, much worse, sharp
practice adversely affecting a fair determination of a litigant’s rights
or liabilities.
9. ____: ____. Sanctions under Neb. Ct. R. Disc. § 6-337 are designed to
prevent a party who has failed to comply with discovery from profiting
by such party’s misconduct.
10. ____: ____. An appropriate sanction under Neb. Ct. R. Disc. § 6-337 is
determined in the factual context of each particular case and is initially
left to the sound discretion of the trial court, whose ruling will be upheld
in the absence of an abuse of discretion.
11. Appeal and Error. In the absence of plain error, when an issue is raised
for the first time in an appellate court, it will be disregarded inasmuch as
a lower court cannot commit error in resolving an issue never presented
and submitted to it for disposition.
12. ____. An appellate court is not obligated to engage in an analysis that is
not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for York County, James
C. Stecker, Judge, on appeal thereto from the County Court
for York County, Linda S. Caster Senff, Judge. Judgment of
District Court affirmed.
Charles W. Campbell, of Angle, Murphy & Campbell, P.C.,
L.L.O., for appellant.
Daniel P. Chesire and Anastasia Wagner, of Lamson, Dugan
& Murray, L.L.P., for appellee.
Inbody, Pirtle, and R iedmann, Judges.
Pirtle, Judge.
INTRODUCTION
Douglas S. Becker appeals from an order of the district
court for York County which affirmed the York County Court’s
denial of Becker’s motion for an award of fees and expenses
- 111 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
pursuant to Neb. Ct. R. Disc. § 6-337(c). Based on the reasons
that follow, we affirm.
BACKGROUND
On December 4, 2013, Becker filed a complaint against
Tonya M. Walton for personal injury arising out of an auto-
mobile accident that occurred on December 16, 2009. Becker
served 20 requests for admission with the complaint. On
January 17, 2014, Walton served her initial responses. She
admitted requests Nos. 1, 2, and 4; objected to request No. 3 as
vague and ambiguous; and denied the remaining 16 requests.
In denying the requests for admission, Walton stated that she
had not had an opportunity to conduct discovery regarding the
matters which were the subject of the requests. Requests Nos. 5
through 9 concerned liability. Request No. 10 concerned medi-
cal causation. Requests Nos. 11 through 20 concerned fairness,
reasonableness, and the necessity of Becker’s medical bills
and treatment.
Walton served interrogatories and requests for production
on Becker, which Becker answered on January 24, 2014.
Becker and Walton were both deposed on February 26. Becker
filed supplemental responses to Walton’s interrogatories and
requests for production on May 22.
On May 23, 2014, Becker filed a motion for partial sum-
mary judgment alleging that there were no genuine issues of
material fact and that he was entitled to judgment as a matter
of law on the issues of liability and medical expenses. The
matter was set for hearing on June 19. On June 18, Walton
supplemented her responses to the requests for admission and
admitted all previously denied requests, with one exception. In
regard to request No. 10, Walton admitted that Becker injured
his neck but denied the nature and extent of the injury. Walton
also denied that Becker suffered a back injury, an injury that
Becker himself denied suffering in his deposition.
On June 19, 2014, the county court entered an order find-
ing that Walton had admitted that she was negligent, that her
- 112 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
negligence was a proximate cause of the accident, that the
accident was a proximate cause of some damage to Becker, and
that the medical expenses of $3,731.50 were fair, reasonable,
and necessary. The court stated that Walton did not oppose
entry of summary judgment on those issues and that therefore,
based on the agreement of the parties, Becker’s motion for par-
tial summary judgment was granted. It further stated that “the
nature and extent of [Becker’s] injury and pain and suffering, if
any,” would be determinations for the jury at trial.
The remaining contested issues were tried to a jury on
August 28, 2014. The jury awarded Becker $21,731.50
plus costs.
On September 4, 2014, Becker filed a motion for an award
of fees and expenses pursuant to § 6-337(c) alleging that he
incurred attorney fees and expenses “in proving the truth of
matters requested under Rule 36” and that his application was
submitted within 30 days of “proving the truth of such mat-
ters.” Becker only sought reimbursement of fees and expenses
he incurred up to the time of the motion for partial sum-
mary judgment.
On September 26, 2014, the motion for fees was heard by
the county court. Subsequently, on October 30, the county
court denied Becker’s motion, finding that Becker was not
required to prove the truth of the matters in the requests for
admission because Walton had supplemented her answers prior
to the hearing for partial summary judgment, admitting the
matters previously denied. The court further found that even if
such matters were proved by Becker, the exceptions set out in
§ 6-337(c)(3) and (4) applied. The county court also overruled
Becker’s request for fees and expenses incurred in pursuit of
his § 6-337(c) motion for fees and expenses.
Becker filed on November 3, 2014, a motion for new trial
or to alter or amend judgment. The motion was overruled, and
Becker timely appealed to the district court. The district court
affirmed the county court’s findings and further found that the
motion for fees filed in the county court was not timely filed
- 113 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
within 30 days of “proving the matter.” The district court also
found that because it was affirming the county court’s ruling
denying the award of fees and expenses under § 6-337(c),
Becker was not entitled to attorney fees for pursuing the matter
on appeal.
ASSIGNMENTS OF ERROR
Becker assigns that the district court erred in (1) affirming
the order of the county court which overruled his motion for
award of fees and expenses pursuant to § 6-337(c); (2) affirm-
ing the county court’s ruling that he did not prove the matters
which were the subject of Becker’s requests for admission;
(3) affirming the county court’s ruling that Walton’s response
to the request for admission No. 10, regarding injuries to
Becker’s neck and back, justified a denial of Becker’s motion
for fees; (4) ruling that Becker’s motion for fees and expenses
was not timely filed; (5) affirming the county court’s ruling
that Walton met her burden of proof under § 6-337(c)(3);
(6) affirming the county court’s ruling that Walton met her
burden of proof under § 6-337(c)(4); and (7) affirming the
county court’s ruling which denied him an award of fees and
expenses that were associated with the proceedings held on the
motion for fees and expenses, and in denying an award of fees
incurred on appeal.
STANDARD OF REVIEW
[1,2] On appellate review, decisions regarding discovery
are generally reviewed under an abuse of discretion standard.
McCormick v. Allmond, 18 Neb. Ct. App. 56, 773 N.W.2d 409
(2009). The standard of review of a trial court’s determination
of a request for sanctions is whether the trial court abused its
discretion. Id.
ANALYSIS
Becker assigns that the district court erred in affirming the
order of the county court which overruled his motion for award
of fees and expenses pursuant to § 6-337(c).
- 114 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
Neb. Ct. R. Disc. § 6-337(c) provides as follows:
If a party fails to admit the genuineness of any document
or the truth of any matter as requested under Rule 36, and
if the party requesting the admissions thereafter proves
the genuineness of the document or the truth of the mat-
ter, he or she may, within 30 days of so proving, apply to
the court for an order requiring the other party to pay him
or her the reasonable expenses incurred in making that
proof, including reasonable attorney fees. The court shall
make the order unless it finds that:
(1) The request was held objectionable pursuant to
Rule 36(a), or
(2) The admission sought was of no substantial impor-
tance, or
(3) The party failing to admit had reasonable ground to
believe that he or she might prevail on the matter, or
(4) There is other good reason for the failure to admit.
[3-6] A hearing on a motion for expenses pursuant to
§ 6-337(c) is a legal proceeding entirely separate from the
underlying proceedings concerning the merits of the case. See
Salazar v. Scotts Bluff Cty., 266 Neb. 444, 665 N.W.2d 659
(2003). The appellate court reviewing a decision on a motion
for expenses is to concern itself solely with the evidence estab-
lished and produced at that hearing. Id. The determination of
an appropriate sanction under § 6-337(c) rests within the dis-
cretion of the trial court and will not be disturbed on appeal
absent an abuse of discretion. See id. Once the party making a
motion for sanctions proves the truth of the matter previously
denied and that reasonable expenses were incurred in doing
so, the burden then shifts to the nonmoving party to prove, by
a preponderance of the evidence, one of the four exceptions
enumerated in the discovery rule. Id.
[7] Becker first argues that the district court erred in
affirming the county court’s ruling that he did not prove
the matters which were the subject of Becker’s requests for
admission. To be applicable, § 6-337(c) requires that a party
- 115 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
must fail to admit the truth of any matter requested, and the
party requesting the admissions must prove the truth of the
matter. Although Walton first denied the majority of Becker’s
requests for admission on January 17, 2014, she supple-
mented her responses on June 18 and admitted each of the
previously denied requests for admission, with one exception.
On June 19, the day set for the partial summary judgment
hearing, Walton confessed summary judgment as to liability
and medical bills in the amount of $3,731.50. No hearing
was held on the motion for partial summary judgment, and
no evidence was presented. Based upon a stipulation of the
parties, the county court entered an order granting Becker’s
motion for partial summary judgment. Thus, Walton admitted
the truth of the matters requested and Becker did not have
to prove the matters which were the subject of the requests
for admission.
Becker argues that he is entitled to fees and expenses
because he expended time and money to develop proof of the
disputed facts and that Walton should not be able to avoid
sanctions under § 6-337(c) by admitting previously denied
facts on the day before the partial summary judgment hearing.
In support of his argument, Becker relies on a Nebraska federal
case and several non-Nebraska cases where fees were awarded
after a party admitted requests. However, the cases cited by
Becker are distinguishable in that they involve matters being
admitted at the pretrial hearing, on the eve of trial, or after
trial had commenced. See, Johnson Intern. v. Jackson Nat. Life
Ins., 812 F. Supp. 966 (D. Neb. 1993), affirmed in part and in
part remanded on other grounds 19 F.3d 431 (8th Cir. 1994)
(court ordered award of fees under Fed. R. Civ. P. 37(c) after
responding party admitted requests for admission at pretrial
conference after failing to admit requests for over 2 years);
Peralta v. Durham, 133 S.W.3d 339 (Tex. App. 2004) (court
ordered award of fees under Texas rule of discovery, identical
to § 6-337(c), after defendant in traffic accident case stipulated
to liability immediately before trial); Campana v. Board of
- 116 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
Directors of the Massachusetts Housing Finance Agency, 399
Mass. 492, 505 N.E.2d 510 (1987) (court upheld award of
attorney fees to plaintiff after defendant failed to admit plain-
tiff’s requests for admission until first day of trial). Unlike the
cases referred to by Becker, Walton’s supplemental responses
admitting the requests for admission were not filed on the eve
of trial. Rather, they were filed the day before a hearing on a
motion for partial summary judgment and just over 6 months
after the complaint was filed.
Becker also relies on Chemical Engineering v. Essef
Industries, 795 F.2d 1565 (Fed. Cir. 1986), where the court
upheld an award of fees and expenses under federal discov-
ery rule 37(c) following the entry of a summary judgment.
However, this case is distinguishable because the party in
Chemical Engineering did not admit the requests for admission
prior to the summary judgment hearing, as Walton did in the
present case. Rather, the matters were proved at the summary
judgment hearing.
Further, while Becker may have expended time and money
preparing to prove the requests for admission that Walton ini-
tially denied, Walton was entitled to have a chance to evalu-
ate her case. There is no indication that Walton was trying
to delay the case or frustrate the discovery process by not
admitting the requests until the day before the partial summary
judgment hearing. As the county court noted: “This is not a
case that languished with inactivity . . . . The defendant is
entitled to a fair amount of time to do discovery and to explore
possible defenses.” The district court agreed, stating that “[i]t
is clear from the record that subsequent discovery was neces-
sary and beneficial to the defendant” and that Walton “did not
engage in any behavior or actions to slow down the normal
trial process.”
[8-10] Sanctions under § 6-337 exist not only to punish
those whose conduct warrants a sanction but to deter those,
whether a litigant or counsel, who might be inclined or
tempted to frustrate the discovery process by their ignorance,
- 117 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
neglect, indifference, arrogance, or, much worse, sharp prac-
tice adversely affecting a fair determination of a litigant’s
rights or liabilities. Norquay v. Union Pacific Railroad, 225
Neb. 527, 407 N.W.2d 146 (1987). Sanctions under § 6-337
are designed to prevent a party who has failed to comply with
discovery from profiting by such party’s misconduct. Norquay
v. Union Pacific Railroad, supra. An appropriate sanction
under § 6-337 is determined in the factual context of each
particular case and is initially left to the sound discretion of
the trial court, whose ruling will be upheld in the absence
of an abuse of discretion. See Norquay v. Union Pacific
Railroad, supra.
The parties promptly engaged in discovery following the
filing of the complaint. The requests for admission were
served with the complaint, and Walton timely responded
to the requests. The parties took depositions, and Walton
served interrogatories and requests for production on Becker.
Becker’s supplemental responses to Walton’s interrogatories
and requests for production were served on May 22, 2014,
and Becker’s motion for partial summary judgment was filed
on May 23. Walton was entitled to time to review and evalu-
ate Becker’s supplemental responses. Walton supplemented
her answers to the requests for admission on June 18, less
than 1 month after Becker’s final discovery supplementa-
tion. Partial summary judgment was entered based on the
stipulation of the parties on June 19, just 6 months after the
complaint was filed, and the remaining issue was tried 2
months later.
Walton supplemented her responses to the requests for
admission within a reasonable amount of time, admitting
the truth of the matters requested. Therefore, Becker did not
have to prove the matters which were the subject of Becker’s
requests for admission. We conclude that the county court did
not abuse its discretion in finding that Becker was not entitled
to fees and expenses pursuant to § 6-337(c) because he did
not prove the matters which were the subject of Becker’s
- 118 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
requests for admission. Further, the district court did not err
in affirming this finding.
[11] Becker also assigns that the district court erred in
affirming the county court’s ruling that Walton’s response to
request for admission No. 10, regarding injuries to Becker’s
neck and back, justified a denial of Becker’s motion for fees.
The county court, in discussing that Walton was entitled to
have time to evaluate her case, stated, “[Walton] obtained
information during the discovery process that demonstrated
that there was no back injury to [Becker], which [Walton]
had been asked to admit in the original requests for admis-
sion.” The district court did not separately address request for
admission No. 10, and there is no indication that the error now
raised before this court was raised before the district court. In
the absence of plain error, when an issue is raised for the first
time in an appellate court, it will be disregarded inasmuch
as a lower court cannot commit error in resolving an issue
never presented and submitted to it for disposition. Woodle v.
Commonwealth Land Title Ins. Co., 287 Neb. 917, 844 N.W.2d
806 (2014). We find no plain error in the statement made in
the county court’s order and do not address this assignment of
error further.
[12] Becker also assigns that the district court erred in rul-
ing that Becker’s motion for fees and expenses was not timely
filed; erred in affirming the county court’s ruling that Walton
met her burden of proof under § 6-337(c)(3) and (4); and erred
in affirming the county court’s ruling which denied him an
award of fees and expenses associated with the proceedings
held on the § 6-337(c) motion for fees and expenses, and in
denying an award of fees incurred on appeal. Because we have
determined, based on the reasons set forth above, that Becker
is not entitled to fees and expenses pursuant to § 6-337(c)
because he did not prove the matters which were the subject
of his requests for admission, we need not address Becker’s
remaining assignments of error. See Johnson v. Nelson, 290
Neb. 703, 861 N.W.2d 705 (2015) (appellate court is not
- 119 -
Decisions of the Nebraska Court of A ppeals
24 Nebraska A ppellate R eports
BECKER v. WALTON
Cite as 24 Neb. Ct. App. 109
obligated to engage in analysis that is not necessary to adjudi-
cate case and controversy before it).
CONCLUSION
Because Becker did not prove the matters which were
the subject of his requests for admission, we affirm the dis-
trict court’s judgment affirming the county court’s decision
denying Becker’s motion for fees and expenses pursuant to
§ 6-337(c).
A ffirmed.