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ELETECH, INC. v. CONVEYANCE CONSULTING GROUP

Cite as 308 Neb. 733

Eletech, Inc., appellee, v. Conveyance Consulting 

Group, Inc., et al., appellants.

___ N.W.2d ___

Filed March 26, 2021. No. S-19-787.

1. Pretrial Procedure: Appeal and Error. 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.

2. Judgments: Words and Phrases. 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.

3. Trial: Waiver: Appeal and Error. The failure to make a timely objection waives the right to assert prejudicial error on appeal.

4. Appeal and Error. An appellate court will not consider an argument or 

theory that is raised for the first time on appeal. Thus, 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.

5. Trial: Waiver: Appeal and Error. One may not waive an error, gamble 

on a favorable result, and, upon obtaining an unfavorable result, assert 

the previously waived error. For that reason, an issue not presented to or 

decided on by the trial court is not an appropriate issue for consideration 

on appeal.

6. Rules of the Supreme Court: Attorney and Client. Neb. Ct. R. of 

Prof. Cond. § 3-501.16(b) allows a lawyer to withdraw from representing a client under certain circumstances.

7. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc. 

§ 6-337(a) allows a party to apply for an order compelling discovery 

if a deponent provides an evasive or incomplete answer to discovery requests.

8. Rules of the Supreme Court: Attorney and Client: Notice. Neb. Ct. 

R. § 6-1510 provides that upon a motion for withdrawal and notice to 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/07/2021 08:11 AM CDT
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all counsel and the client involved, an attorney who has appeared of 

record in a case may be given leave to withdraw for good cause shown 

after filing with the clerk the motion, notice of hearing, and proof of 

service upon counsel and the client involved.

9. Notice: Time. Under Neb. Rev. Stat. § 25-910 (Reissue 2016), where 

notice of a motion is required, it must be served a reasonable time 

before the hearing.

10. Rules of the Supreme Court: Pretrial Procedure. A party’s failure 

to answer properly served interrogatories or to seasonably supplement 

discovery responses may be grounds for sanctions imposed under Neb. 

Ct. R. Disc. § 6-337.

11. ____: ____. Sanctions under Neb. Ct. R. Disc. § 6-337 exist not only 

to punish those whose conduct warrants a sanction, but also to deter 

those, whether a litigant or counsel, who might be inclined or tempted to 

frustrate the discovery process by their ignorance, neglect, indifference, 

arrogance, or sharp practice adversely affecting a fair determination of a 

litigant’s rights or liabilities.

12. Rules of the Supreme Court: Pretrial Procedure: Appeal and Error.

An appropriate sanction under Neb. Ct. R. Disc. § 6-337 is determined in the factual context of a particular case and is initially left to 

the discretion of the trial court, whose ruling on a request for sanction or a sanction imposed will be upheld in the absence of an abuse 

of discretion.

13. Rules of the Supreme Court: Pretrial Procedure. In determining 

whether a sanction under Neb. Ct. R. Disc. § 6-337 is appropriate, 

relevant factors include the prejudice or unfair surprise suffered by the 

party seeking sanctions, the importance of the evidence which is the root 

of the misconduct, whether the court considered less drastic sanctions, 

the sanctioned party’s history of discovery abuse, and whether the sanctioned party acted willfully or in bad faith.

14. ____: ____. Dismissal may be an appropriate sanction under Neb. Ct. R. 

Disc. § 6-337 for an inexcusably recalcitrant party.

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., and Jeff R. 

Dingwall, of Eight & Sand, for appellants.

Brian T. McKernan and Jay Koehn, of McGrath, North, 

Mullin & Kratz, P.C., L.L.O., for appellee.
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Cite as 308 Neb. 733

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

Conveyance Consulting Group, Inc. (CCG); Jones Consulting 

Inc.; and Jonathan Jones (collectively appellants) appeal from 

an adverse $407,187.46 judgment entered by the district court. 

Eletech, Inc., filed a complaint against appellants, alleging that 

former Eletech vice president Jones engaged in self-dealing 

and interfered with business opportunities. As a discovery 

sanction, the court entered judgment in favor of Eletech and 

dismissed appellants’ counterclaim. Appellants appeal.

BACKGROUND

On October 7, 2016, Eletech filed a complaint in the district 

court for Douglas County against appellants, alleging Jones, as 

an officer and employee of Eletech, engaged in self-dealing and 

diverted corporate opportunities to CCG and Jones Consulting, 

companies which Jones formed while employed with Eletech. 

Eletech’s complaint asserted seven causes of action, including 

(1) breach of duty of loyalty, (2) breach of fiduciary duty—

usurping corporate opportunity and self-dealing, (3) tortious 

interference, (4) unjust enrichment, (5) deceptive acts and trade 

practices, (6) theft by deception, and (7) aiding and abetting. 

On November 18, appellants filed an answer and counterclaim. 

The counterclaim listed four causes of action: (1) breach of 

contract, (2) nonpayment of wages under the Nebraska Wage 

Payment and Collection Act, (3) quantum meruit, and (4) 

unjust enrichment.

On January 3, 2017, Eletech served appellants with requests 

for production of documents and interrogatories. On March 

6, appellants served written responses to those interrogatories 

and requests for production of documents. In December 2017, 

the court entered a proposed scheduling order which set a 

deadline for fact discovery to be completed by June 1, 2018, 

and advised the parties they must be prepared for trial by 

August 3.
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On May 16, 2018, appellants filed an amended and supplemental counterclaim which added causes of action of breach 

of fiduciary duty, conversion, and breach of oral contract. On 

May 29, the district court issued an amended scheduling order, 

ordering fact discovery to be completed by October 1 and dispositive pretrial motions to be filed by November 2. The order 

advised that the parties must be prepared for trial by December 

3. Due to multiple scheduling conflicts, the pretrial conference 

was continued to August 27, and later to October 10.

On November 21, 2018, Eletech filed a motion to compel 

appellants to respond to particular interrogatories and requests 

for production of documents. On December 21, appellants’ 

counsel moved for leave to withdraw. According to the motion, 

counsel made several attempts to remedy “the situation” and 

had given appellants reasonable warning that counsel would 

withdraw if the situation were not remedied. The motion also 

stated that neither appellants nor Eletech would be prejudiced 

if the motion were granted. The motion served appellants with 

a notice for hearing set for January 3, 2019.

Though not in our record, the court held a hearing concerning the motion to withdraw and the motion to compel 

on January 3, 2019. The next day, the court entered an order 

noting that all parties appeared and that an off-the-record 

discussion was held in chambers. The court then sustained 

the motion to withdraw and continued the motion to compel 

to January 17, to be held in conjunction with a status conference. The court ordered appellants to appear either personally 

or through new counsel. On January 17, appellants appeared, 

unrepresented, and verbally requested a continuance to allow 

them more time to secure new counsel. In response, the court 

continued the hearing on the motion to compel and the status hearing to February 14. The court advised Jones that he 

could represent himself in an individual capacity, but that he 

would need to secure counsel to represent CCG and Jones 

Consulting. The court also reminded the parties of the April 

22 trial date.
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On February 14, 2019, the court held a hearing on the 

motion to compel and a status hearing. Appellants failed to 

appear. As a result, on February 19, the court entered an order 

sustaining Eletech’s motion to compel and ordered appellants 

to provide full and complete discovery responses within 10 

days. Additionally, the court’s order listed the specific interrogatories and discovery requests that needed full and complete 

answers/responses. In its order, the court admonished appellants that failure to comply with its order would result in sanctions, which could include an entry of liability against appellants and a dismissal of their counterclaim, with prejudice.

On March 28, 2019, Eletech filed a motion for sanctions, 

including a request for judgment and dismissal of the counterclaim, with prejudice. In its motion, Eletech alleged appellants 

failed to comply with the court’s February 19 order to fully 

respond to outstanding discovery. The motion for sanctions 

was scheduled for hearing on April 10.

On April 10, 2019, Jones appeared, pro se, and requested 

a continuance for purposes of obtaining new counsel. Jones 

informed the court that he had not yet complied with the 

court’s order to compel, but that he planned to. The court 

granted Jones’ request for a continuance and reset the hearing 

on sanctions for May 9.

On May 9, 2019, the court held a hearing on the motion for 

sanctions. Appellants were represented at the hearing by new 

counsel, Rodney Gnuse. Gnuse informed the court that although 

his appearance was limited to the hearing, if the hearing did 

not result in a dismissal of the case, he would also help appellants in the preparation of supplemental discovery responses 

and in trying to persuade an attorney to represent appellants 

during the remainder of the proceedings. The court continued 

the hearing on the motion for sanctions for 60 days.

On July 8, 2019, Gnuse filed a motion for withdrawal as 

limited-representation counsel for appellants. Gnuse’s motion 

stated that “[he] believe[d] that given the facts involved, [he 

had] accomplished as much as [he could] for [appellants] 
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and [would] not be able to continue in even [his] limited representation of them.”

On July 11, 2019, the court held a hearing on the motion to 

withdraw. Gnuse and counsel for Eletech appeared, but appellants did not. At the hearing, Gnuse explained to the court 

that he was able to secure a conditional offer from another 

attorney to represent appellants as long as appellants demonstrated their willingness to consistently cooperate and follow 

through with counsel regarding the case. However, according to Gnuse, Jones failed to cooperate with him, failed to 

answer telephone calls, and failed to show up for meetings. 

As a result, the attorney that Gnuse had arranged for appellants withdrew his offer to assist. The court granted Gnuse’s 

motion to withdraw and then proceeded with the hearing on 

the motion for sanctions.

On July 15, 2019, the court granted Eletech’s motion for 

sanctions and awarded Eletech judgment in the amount of 

$407,187.46. The court found that Jones was liable to Eletech 

for the entire judgment, that Jones Consulting was jointly 

and severally liable with Jones to Eletech in the amount of 

$213,435, and that CCG was jointly and severally liable with 

Jones to Eletech in the amount of $39,687.97. The court also 

ordered postjudgment interest at the rate of 4.573 percent. 

The court dismissed appellants’ supplemental counterclaim, 

with prejudice.

Jones, as a self-represented litigant, filed this appeal on 

behalf of himself, CCG, and Jones Consulting. We note, however, that as a self-represented litigant, Jones could not file 

an appeal on behalf of CCG and Jones Consulting. 1 After the 

notice of appeal was filed, new counsel entered an appearance 

for Jones, CCG, and Jones Consulting. Jones filed a brief as an 

appellant, and CCG and Jones Consulting filed a nearly identical brief as “Cross-Appellees.”

1 See, Neb. Rev. Stat. § 7-101 (Reissue 2012); Steinhausen v. HomeServices 

of Neb., 289 Neb. 927, 857 N.W.2d 816 (2015).
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ASSIGNMENTS OF ERROR

Appellants assign, restated and consolidated, that the district court abused its discretion in (1) granting the withdrawal 

of appellants’ first counsel of record without considering all 

relevant factors; (2) granting Eletech’s motion to compel discovery after permitting appellants’ first counsel to withdraw; 

(3) granting the withdrawal of appellants’ second counsel of 

record without considering all relevant factors; and (4) dismissing appellants’ counterclaim with prejudice as a sanction for 

failing to comply with the discovery order, without findings 

of willfulness and bad faith, a finding that appellants actually 

failed to comply with the discovery order, notice to appellants, 

and consideration of lesser sanctions.

STANDARD OF REVIEW

[1,2] 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. 2 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. 3

ANALYSIS

[3-5] We begin our analysis by reciting familiar propositions concerning an appellant’s duty to raise objections before 

the trial court and the consequences of failing to do so. Our 

case law is clear that the failure to make a timely objection 

waives the right to assert prejudicial error on appeal. 4 An appellate court will not consider an argument or theory that is raised 

for the first time on appeal. 5 Thus, when an issue is raised 

2 Yeransian v. Willkie Farr, 305 Neb. 693, 942 N.W.2d 226 (2020); Eddy v. 

Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020).

3 Id.

4 Ecker v. E & A Consulting Group, 302 Neb. 578, 924 N.W.2d 671 (2019); 

State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).

5 State v. Kruse, 303 Neb. 799, 931 N.W.2d 148 (2019); First Express Servs. 

Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 (2013).
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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. 6

Further, we have repeatedly said that one may not waive an 

error, gamble on a favorable result, and, upon obtaining an 

unfavorable result, assert the previously waived error. 7 For 

that reason, an issue not presented to or decided on by the trial 

court is not an appropriate issue for consideration on appeal. 8

Withdrawal of First Counsel

Appellants argue that the court abused its discretion in 

allowing appellants’ initial counsel to withdraw without considering relevant factors such as the pending motion to compel, 

whether counsel had given appellants notice of withdrawal, 

whether appellants had adequate time to secure new counsel, 

any delays that would be caused by such withdrawal, and 

whether any party would be prejudiced by the withdrawal. 

Eletech argues that appellants’ failure to object to the motion 

to withdraw waives their arguments on appeal. Additionally, 

Eletech argues that granting the motion to withdraw was not an 

abuse of discretion.

[6] Neb. Ct. R. of Prof. Cond. § 3-501.16(b) allows a lawyer 

to withdraw from representing a client if

(1) withdrawal can be accomplished without material 

adverse effect on the interests of the client;

. . . .

(5) the client fails substantially to fulfill an obligation 

to the lawyer regarding the lawyer’s services and has 

been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

. . . .

(7) other good cause for withdrawal exists.

6 Ecker, supra note 4; First Express Servs. Group, supra note 5; Collins, 

supra note 4.

7 Ecker, supra note 4; Collins, supra note 4.

8 Id.
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ELETECH, INC. v. CONVEYANCE CONSULTING GROUP

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Additionally, under § 3-501.16(c), a lawyer must comply 

with applicable law requiring notice to or permission of a tribunal when terminating a representation.

As previously mentioned, the motion to withdraw of appellants’ first counsel was filed on December 21, 2018. A notice 

of hearing was incorporated in the motion and set a hearing 

date for January 3, 2019. The motion and the notice were 

served upon all the parties, including appellants, by U.S. mail 

on December 21. Though we have no bill of exceptions from 

the hearing, the court’s order indicates that all parties appeared 

and that the court sustained the motion.

Nothing in our record indicates that appellants argued 

before the district court that they were not given reasonable 

notice of the motion, that they objected to the motion, or 

that they would be prejudiced by the granting of the motion. 

Appellants’ failure to make a timely objection to the motion 

to withdraw waived their right to assert prejudicial error 

on appeal.

Additionally, the record indicates that the court continued 

the pending motion to compel to allow appellants time to 

obtain new counsel. As such, based upon the record before us, 

the court did not abuse its discretion in granting the motion 

to withdraw.

This assignment of error is without merit.

Motion to Compel

Appellants next argue that the district court abused its discretion in granting Eletech’s motion to compel after it had 

permitted appellants’ first counsel to withdraw. Additionally, 

appellants contend that Eletech waited too long to file its 

motion to compel, that Eletech failed to describe with reasonable specificity the information it sought to compel, and that 

the court failed to identify any failure of appellants in responding to discovery. Eletech again counters that appellants failed 

to raise these issues before the trial court and, as such, have 

waived their arguments on appeal.
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[7] Under Neb. Ct. R. Disc. § 6-337(a),

[a] party, upon reasonable notice to other parties and all 

persons affected thereby, may apply for an order compelling discovery as follows:

. . . .

(2) . . . If a deponent fails to answer a question propounded or submitted under Rule 30 or 31, or a corporation or other entity fails to make a designation under Rule 

30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response 

to a request for inspection submitted under Rule 34, fails 

to respond that inspection will be permitted as requested 

or fails to permit inspection as requested, the discovering 

party may move for an order compelling an answer, or a 

designation, or an order compelling inspection in accord

ance with the request. . . .

(3) . . . For purposes of this subdivision an evasive or 

incomplete answer is to be treated as a failure to answer.

Eletech’s motion to compel was filed on November 21, 

2018, and set forth the specific answers to interrogatories and 

responses to requests for production of documents that Eletech 

contended were incomplete and/or deficient. A notice of hearing was filed on November 28, setting the matter for hearing on 

January 3, 2019. The court continued the matter from January 

3 to January 17. At that time, the court ordered appellants to 

appear personally or through new counsel.

On January 17, 2019, Jones appeared and verbally moved for 

a continuance of the motion to compel. The court granted the 

motion to continue and rescheduled the hearing on the motion 

to compel for February 14. The court also advised Jones that 

though he could represent himself in his individual capacity, 

CCG and Jones Consulting would need to secure counsel.

Though not in our record, it appears that a hearing on the 

motion to compel was held on February 14, 2019. On February 

19, the district court entered an order granting the motion. 

In doing so, the court noted that appellants did not appear at 
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the hearing. Additionally, the court’s order listed the specific 

interrogatories and requests for production that appellants 

needed to provide full and complete answers and responses to 

and ordered that appellants comply within 10 days. Lastly, the 

order stated that if appellants failed to comply with the order, 

appellants would be subject to sanctions, which could include 

a finding of liability against them on Eletech’s claims and a 

dismissal of appellants’ counterclaim.

Again, there is nothing in our record which indicates appellants argued to the district court that Eletech waited too long 

to file its motion to compel or that Eletech failed to describe 

with reasonable specificity the information it sought to compel. 

In fact, when Jones did appear on the motion to compel, he 

informed the court that he intended to provide the discovery 

but merely needed additional time to do so. As such, these 

alleged errors have been waived by appellants. An appellate 

court will not consider an issue on appeal that was not passed 

upon by the trial court. 9

In regard to whether the court failed to identify any failure 

of appellants in responding to discovery, the record indicates 

that the court ordered appellants to provide complete and full 

responses to interrogatories Nos. 9 through 11, 13, 15 through 

17, and 19, together with requests for production Nos. 1, 2, 

4, 5, and 8 through 15, within 10 days. The court’s order 

adequately informed appellants as to what additional discovery 

was being requested and provided appellants time to supply 

the additional discovery. Accordingly, the district court did not 

abuse its discretion in sustaining Eletech’s motion to compel.

This assignment of error is without merit.

Withdrawal of Second Counsel

Appellants also argue that the court abused its discretion 

when it allowed their second counsel, Gnuse, to withdraw 

from representation without considering relevant factors such 

as the pending motion for sanctions and whether Gnuse had 

9 Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019).
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given proper notice of withdrawal. Eletech contends that these 

arguments have been waived by appellants’ failure to raise 

them before the district court. Eletech also contends that appellants were not prejudiced by the court’s order allowing Gnuse 

to withdraw.

As mentioned above, § 3-501.16(b)(5) of the rules of professional conduct allows a lawyer to withdraw from representing 

a client if the client fails substantially to fulfill an obligation to 

the lawyer regarding the lawyer’s services and has been given 

reasonable warning that the lawyer will withdraw unless the 

obligation is fulfilled.

The record shows that Gnuse’s representation of appellants was limited to (1) representing them at the May 9, 2019, 

hearing; (2) assisting them in the preparation of supplemental 

discovery responses; and (3) attempting to persuade an attorney to represent them for the rest of the litigation proceedings. 

On July 8, Gnuse filed his motion to withdraw, in which he 

alleged that as much as he could, he had accomplished all of 

the limited representation he had agreed to with appellants. 

That same day, Gnuse mailed to appellants, by U.S. mail and 

by email, the motion and a notice of hearing setting the matter 

for July 11.

At the July 11, 2019, hearing, Gnuse informed the court that 

although he had prepared supplemental discovery answers, he 

did not feel comfortable signing them, because he had not had 

a chance to discuss them with Jones. Gnuse also indicated that 

he had difficulties communicating with Jones during the month 

of June 2019; that he could not get Jones to approve the supplemental discovery Gnuse had compiled; and that Jones would 

not be present at the hearing, because he was out of state on a 

business trip. Gnuse also informed the court that he had lined 

up a conditional offer from another attorney to represent appellants, contingent on Jones’ showing initiative, cooperation, and 

followthrough in the case. However, this attorney withdrew his 

offer when Jones failed to answer telephone calls and failed to 

cooperate or be involved in the case.
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[8,9] As to the issue of notice, Neb. Ct. R. § 6-1510 provides 

that upon a motion for withdrawal and notice to all counsel and 

the client involved, an attorney who has appeared of record in 

a case may be given leave to withdraw for good cause shown 

after filing with the clerk the motion, notice of hearing, and 

proof of service upon counsel and the client involved. Further, 

under Neb. Rev. Stat. § 25-910 (Reissue 2016), where notice of 

a motion is required, it must be served a reasonable time before 

the hearing.

Here, Gnuse filed his motion to withdraw and notice of 

hearing on July 8, 2019. That same day, Gnuse provided a copy 

of the motion and notice of hearing to appellants by email. 

Additionally, Gnuse set the motion for hearing at the same 

date and time as the previously scheduled motion for sanctions 

was to be heard. Nothing in our record indicates that appellants were not given notice of the hearing, nor do they argue 

on appeal that notice was not actually received. As a result, 

the court did not err in its determination of reasonable notice 

to appellants.

Appellants also contend that the court failed to consider 

the pending motion for sanctions before granting Gnuse’s 

withdrawal. However, once again, that issue was not raised by 

appellants before the district court. As such, the argument has 

been waived. This assignment of error is without merit.

Motion for Sanctions

Lastly, appellants argue that the court abused its discretion 

in granting Eletech’s motion for sanctions and in dismissing appellants’ counterclaim with prejudice as a sanction. 

Specifically, appellants contend that the court abused its discretion when it dismissed their counterclaim without finding that 

they acted willfully and in bad faith, failed to comply with the 

discovery order, were provided reasonable notice, and should 

not appropriately receive a lesser judgment. Eletech contends 

that due to appellants’ repeated and unjustified failure to comply with the court’s order to compel, the sanctions imposed by 

the court were not an abuse of discretion.
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Section 6-337(b) of the discovery rules, regarding a failure 

to comply with an order compelling discovery, provides:

(2) . . . If a party or an officer, director, or managing agent of a party or a person designated under 

Rule 30(b)(6) or 31(a) to testify on behalf of a party fails 

to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or 

Rule 35, the court in which the action is pending may 

make such orders in regard to the failure as are just, and 

among others the following:

(A) An order that the matters regarding which the order 

was made or any other designated facts shall be taken to 

be established for the purposes of the action in accord

ance with the claim of the party obtaining the order;

. . . .

(C) An order striking out pleadings or parts thereof, or 

staying further proceedings until the order is obeyed, or 

dismissing the action or proceeding or any part thereof, 

or rendering a judgment by default against the disobedient party.

[10-12] This court has previously held that a party’s failure 

to answer properly served interrogatories or to seasonably 

supplement discovery responses may be grounds for sanctions 

imposed under § 6-337. 10 In Eddy v. Builders Supply Co.,

 11 we 

explained that sanctions under § 6-337 exist not only to punish those whose conduct warrants a sanction, but also to deter 

those, whether a litigant or counsel, who might be inclined or 

tempted to frustrate the discovery process by their ignorance, 

neglect, indifference, arrogance, or sharp practice adversely 

affecting a fair determination of a litigant’s rights or liabilities. We also recognized that an appropriate sanction under 

§ 6-337 is determined in the factual context of a particular case 

and is initially left to the discretion of the trial court, whose 

10 Eddy, supra note 2.

11 Id.
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ruling on a request for sanction or a sanction imposed will be 

upheld in the absence of an abuse of discretion. 12

[13,14] In determining whether a sanction under § 6-337 

is appropriate, we have noted that relevant factors include 

the prejudice or unfair surprise suffered by the party seeking 

sanctions, the importance of the evidence which is the root 

of the misconduct, whether the court considered less drastic 

sanctions, the sanctioned party’s history of discovery abuse, 

and whether the sanctioned party acted willfully or in bad 

faith. 13 Moreover, we have also said that dismissal may be an 

appropriate sanction under § 6-337 for an “‘inexcusably recalcitrant’” party. 14

The record before us indicates that Eletech’s motion to 

compel was filed nearly 8 months prior to the entry of sanctions. During that period, the court held six hearings in which 

the issue of discovery was discussed. At several of the hearings, appellants assured the court that they would comply with 

the requested discovery but just needed more time. On three 

occasions, the court warned appellants that failure to comply 

with the requested discovery could result in sanctions, including the court’s entering judgment against appellants and dismissing appellants’ counterclaim. Additionally, it is clear that 

appellants were not responsive to their counsel, which caused 

unnecessary delays in complying with the court’s order to compel. The district court’s decision to grant the motion for sanctions and enter judgment against appellants was a direct result 

of appellants’ failure to provide full and complete discovery 

responses over the course of nearly 5 months, even after multiple stern warnings from the court. The record indicates that 

appellants had become an inexcusably recalcitrant party. As 

a result, based upon the record before us, the court did not 

12 Id.

13 Hill v. Tevogt, 293 Neb. 429, 879 N.W.2d 369 (2016).

14 Id. at 437, 879 N.W.2d at 374. See Stanko v. Chaloupka, 239 Neb. 101, 

474 N.W.2d 470 (1991).
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abuse its discretion in entering judgment against appellants and 

dismissing their counterclaims.

This assignment of error is without merit.

CONCLUSION

Appellants’ claims that the district court abused its discretion in granting motions to withdraw, a motion to compel, and 

a motion for sanctions were either waived or are without merit. 

As a result, the judgment of the district court is affirmed.

Affirmed.