Decisions of the Nebraska Court of Appe

POPE-GONZALEZ v. HUSKER CONCRETE 575

Cite as 21 Neb. App. 575

Teri Pope-Gonzalez, appellant, v

Husker Concrete, LLC, appe

___ N.W.2d ___

Filed December 24, 2013. No. A-12-915.

1. Pretrial Procedure: Appeal and Error. Determination of an appropriate sanction for failure to comply with a proper discovery order initially rests with the 

discretion of the trial court, and its rulings on appropriate sanctions will not be 

disturbed on appeal absent a showing of an abuse of that discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge, 

acting within effective limits of authorized judicial power, elects to act or refrain 

from action, but the selected option results in a decision which is untenable and 

unfairly deprives the litigant of a substantial right or a just result.

3. Default Judgments: Motions to Vacate. Unavoidable casualty, which rises to a 

sufficient ground to vacate a default judgment, must be one preventing a party 

from prosecuting or defending.

4. Effectiveness of Counsel. A pro se litigant is held to the same standards as one 

who is represented by counsel.

5. ____. Although people have a right to represent themselves, the trial court also 

has inherent powers to compel conformity to Nebraska procedural practice.

6. Rules of the Supreme Court: Pretrial Procedure. There is a difference between 

noncompliance with one of the discovery rules and noncompliance with an order 

of the trial court on a discovery matter, and this difference may impact the allowable sanction.

7. Default Judgments: Pretrial Procedure. Dismissal or default judgment is an 

appropriate sanction for failing to comply with a discovery order.

Appeal from the District Court for Lancaster County: Rober

R. Otte, Judge. Affirme

Teri Pope-Gonzalez, pro se.

Brian S. Kruse, of Rembolt Ludtke, L.L.P., for appellee.

Irwin, Pirtle, and Bishop, Judg

Pirtle, Judge

INTRODUCTION

Teri Pope-Gonzalez (Gonzalez) appeals the order of the district court for Lancaster County granting default judgment for 

Husker Concrete, LLC, and dismissing Gonzalez’ complaint 

for failure to comply with discovery and the court’s orders 

regarding discovery. For the reasons that follow, we affirm.
Decisions of the Nebraska Court of Appe

576 21 NEBRASKA APPELLATE REPORTS

BACKGROUND

Gonzalez filed a complaint against Husker Concrete on 

November 25, 2008. On September 18, 2009, the district 

court held a status conference and entered a progression order 

in which the trial court ordered Gonzalez to provide Husker 

Concrete certain witness disclosures. Gonzalez failed to disclose any expert witnesses.

The district court granted summary judgment, and Gonzalez’ 

appeal was heard by this court. See Gonzalez v. Husker 

Concrete, No. A-10-1144, 2011 WL 4905527 (Neb. App. Oct. 

11, 2011) (selected for posting to court Web site). We found 

Gonzalez had presented evidence showing the existence of a 

material issue of fact; thus, the cause was remanded to the district court for further proceedings.

On January 17, 2012, the district court held a status conference and Gonzalez personally appeared. Husker Concrete’s 

counsel informed the court that Gonzalez had not fully 

responded to or supplemented discovery requests. The court set 

a new discovery deadline for April 20 and scheduled a pretrial 

conference for May 17.

On April 20, 2012, Gonzalez filed a motion to extend the 

discovery deadline and pretrial conference, because she was 

pro se, ill, and unable to get the paperwork done.

On May 17, 2012, Gonzalez appeared, requesting “a couple 

more months” to conduct and respond to outstanding discovery. The trial court inquired as to whether Gonzalez still 

had discovery due to Husker Concrete. Husker Concrete’s 

counsel informed the court that Gonzalez had outstanding 

discovery requests dating back to 2009 and that she had 

not complied with the April 20 discovery deadline. She had 

not responded to the witness disclosures, interrogatories, or 

requests for production.

The court asked whether Gonzalez would be able to respond 

to the requests within 60 days, and she said, “Yes, sir.” The 

district court granted the motion and gave her 60 days, until 

approximately July 17, 2012, to complete discovery. During 

that status conference, the court specifically noted Gonzalez 
Decisions of the Nebraska Court of Appe

POPE-GONZALEZ v. HUSKER CONCRETE 577

Cite as 21 Neb. App. 575

would be subject to sanctions if she failed to comply with her 

discovery and disclosure obligations.

On May 17, 2012, the district court entered a progression 

order in which the court ordered Gonzalez to provide Husker 

Concrete, without further request, certain initial disclosures, 

and expert witness disclosures within 60 days of the date of 

the order. The court also required Gonzalez to supplement and/

or respond to written discovery requests by Husker Concrete 

in March 2009. The progression order specifically states: 

“[Gonzalez’] answers to outstanding discovery requests of 

[Husker Concrete] are due 60 days from the date of this order 

or [Gonzalez] shall be subject to sanctions.” On May 17, 2012, 

Husker Concrete’s counsel resubmitted the necessary discovery 

requests to Gonzalez.

Gonzalez failed to comply with the district court’s orders 

regarding discovery and disclosure within 60 days. On August 

16, 2012, Husker Concrete filed a “Motion for Sanctions, 

Including Dismissal With Prejudice.”

On August 22, 2012, the district court considered Husker 

Concrete’s motion for sanctions. Husker Concrete asserted 

Gonzalez had not responded to discovery or disclosure requests, 

and Husker Concrete requested the case be dismissed with 

prejudice. Gonzalez did not appear at the hearing.

On August 28, 2012, the district court entered an order 

granting default judgment in favor of Husker Concrete, dismissing Gonzalez’ case.

Gonzalez filed a motion to set aside the sanction. Gonzalez 

did not dispute her noncompliance with the district court’s 

orders. She claimed the default judgment should be vacated, 

asserting that (1) she had not received notice of the hearing, (2) 

she had been ill, (3) she did not have an attorney, (4) she did 

not have copies of the discovery requests, (5) she gave copies 

of all of the evidence to opposing counsel, (6) Husker Concrete 

failed to depose her, and (7) dismissal of the action was overly 

harsh and unjust.

The district court denied Gonzalez’ motion to set aside. 

Gonzalez timely appealed.
Decisions of the Nebraska Court of Appe

578 21 NEBRASKA APPELLATE REPORTS

ASSIGNMENTS OF ERROR

Gonzalez assigns that the trial court’s sanction was overly 

harsh and that the court should not have dismissed her claim.

STANDARD OF REVIEW

[1] Determination of an appropriate sanction for failure to 

comply with a proper discovery order initially rests with the 

discretion of the trial court, and its rulings on appropriate sanctions will not be disturbed on appeal absent a showing of an 

abuse of that discretion. Mandolfo v. Mandolfo, 281 Neb. 443, 

796 N.W.2d 603 (2011).

ANALYSIS

Gonzalez asserts that the sanction imposed, dismissing the 

action against Husker Concrete, was “overly harsh” and that 

the trial court abused its discretion.

[2] We review the imposition of a discovery sanction for 

abuse of discretion. A judicial abuse of discretion exists when 

a judge, acting within effective limits of authorized judicial 

power, elects to act or refrain from action, but the selected 

option results in a decision which is untenable and unfairly 

deprives the litigant of a substantial right or a just result. 

Mandolfo v. Mandolfo, supra.

Gonzalez asserts the sanctions were inappropriate because 

she did not receive notice of the August 22, 2012, hearing on 

Husker Concrete’s motion for sanctions and because she was 

sick during the pendency of the case.

The record shows that Husker Concrete provided a copy of 

the “Motion for Sanctions, Including Dismissal With Prejudice,” 

and the accompanying notice of hearing by mail on August 16, 

2012. The record also shows that Gonzalez was aware of her 

responsibilities to comply with discovery—by April 20, per 

the district court’s order on January 17, and within 60 days 

of the court’s May 17 order. In addition, Gonzalez indicated 

on May 17 that she had been ill, yet at this same hearing, she 

also acknowledged that 60 days would be sufficient to complete discovery. Further, in her appeal, she does not claim to 

have complied with the court’s orders. We find this assignment 

of error is without merit, and the trial court did not abuse its 
Decisions of the Nebraska Court of Appe

POPE-GONZALEZ v. HUSKER CONCRETE 579

Cite as 21 Neb. App. 575

discretion in imposing sanctions though Gonzalez was absent 

from the hearing.

With regard to her illness, Gonzalez alleges she was unable 

to respond to discovery requests within the allotted time. She 

further alleges her illness arises from the alleged nuisances 

which gave rise to the underlying complaint.

[3] The Nebraska Supreme Court has found that unavoidable 

casualty, which rises to a sufficient ground to vacate a default 

judgment, must be one preventing a party from prosecuting or 

defending. See Aetna Cas. & Surety Co. v. Dickinson, 216 Neb. 

660, 345 N.W.2d 8 (1984). In Aetna Cas. & Surety Co., the 

Supreme Court found that a time period of 4 months from the 

date that production was ordered was “more than ample time in 

which to comply with the court’s order,” where the appellants, 

a husband and wife, claimed that they were unable to comply 

due to a head injury allegedly suffered by the husband. 216 

Neb. at 663, 345 N.W.2d at 10.

There is little evidence in the record demonstrating how 

Gonzalez’ health affected her ability to complete the requested 

discovery and disclosures. Regardless, the district court provided her with at least 120 days to comply. Despite this additional time, she failed to comply or respond at all, in violation 

of the court’s order, and in spite of the warning that sanctions 

would apply if she failed to meet the deadline in July 2012. 

By August 2012, she still had not disclosed factual witnesses, 

expert witnesses, or categories of damages.

Upon our review, we find the district court did not abuse its 

discretion in finding that sanctions were appropriate as a result 

of Gonzalez’ noncompliance.

[4,5] Further, at times during the pendency of this case, 

Gonzalez has asserted that she is a pro se litigant and that 

she required additional time to meet deadlines or to respond 

to opposing counsel’s requests. We must note that a pro se 

litigant is held to the same standards as one who is represented by counsel. Prokop v. Cannon, 7 Neb. App. 334, 583 

N.W.2d 51 (1998). Although people have a right to represent 

themselves, the trial court also has inherent powers to compel 

conformity to Nebraska procedural practice. Id. Those powers 
Decisions of the Nebraska Court of Appe

580 21 NEBRASKA APPELLATE REPORTS

might well be used to bring litigation to a timely and orderly 

conclusion. Id.

Having determined that sanctions were appropriate under 

the circumstances, we consider whether the court abused its 

discretion in dismissing the case, granting default judgment for 

Husker Concrete.

The district court has discretion to sanction parties to a 

lawsuit. Neb. Ct. R. Disc. § 6-337(b)(2) states that if a party 

fails to obey a court order to provide or permit discovery, the 

court may impose further “orders in regard to the failure as are 

just,” including “dismissing the action or proceeding or any 

part thereof, or rendering a judgment by default against the 

disobedient party.” Determination of an appropriate sanction 

for failure to comply with a proper discovery order initially 

rests with the discretion of the trial court, and its rulings on 

appropriate sanctions will not be disturbed on appeal absent a 

showing of an abuse of that discretion. Mandolfo v. Mandolfo, 

281 Neb. 443, 796 N.W.2d 603 (2011).

[6,7] This court has stated that “there is a difference 

between noncompliance with one of the discovery rules and 

noncompliance with an order of the trial court on a discovery 

matter and that this difference may impact the allowable sanction.” Whitney v. Union Pacific R. Co., No. A-97-410, 1998 

WL 30266 at *12 (Neb. App. Jan. 27, 1998) (not designated 

for permanent publication), citing Aetna Cas. & Surety Co. 

v. Dickinson, 216 Neb. 660, 345 N.W.2d 8 (1984) (where 

default judgment was found to be appropriate sanction for 

unjustifiable obstruction of discovery). The Nebraska Supreme 

Court has also noted that dismissal or default judgment is an 

appropriate sanction for failing to comply with a discovery 

order. See Stanko v. Chaloupka, 239 Neb. 101, 474 N.W.2d 

470 (1991).

The evidence shows that Gonzalez repeatedly failed to 

respond to discovery requests. On January 17, 2012, she was 

granted until April 20 to respond to discovery, and her request 

for 60 additional days was granted on May 17. At that time, 

the court ordered compliance with the discovery requests and 

she was informed that sanctions would apply if she failed to 

respond. She failed to comply with any part of the trial court’s 
Decisions of the Nebraska Court of Appe

POPE-GONZALEZ v. HUSKER CONCRETE 581

Cite as 21 Neb. App. 575

order without showing sufficient justification, and the court 

granted Husker Concrete’s motion for sanctions, dismissing 

the case. Upon our review, we find this was not an abuse of 

discretion following Gonzalez’ failure to comply with the district court’s orders and the rules of discovery.

CONCLUSION

We find the district court did not abuse its discretion 

in determining that sanctions were appropriate under the 

circumstances and granting default judgment in favor of 

Husker Concrete.

Affirme