McCormick v. Allmond

Trisha K. MccorMicK, appellanT, v.
saMuel M. allMond, appellee .
773 N.W.2d 409
Filed October 6, 2009. 	No. A-08-1285.
1. Pretrial Procedure: Appeal and Error. On appellate review, decisions regarding
discovery are generally reviewed under an abuse of discretion 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: Trial. At a hearing to determine whether to award
sanctions pursuant to Neb. Ct. R. Disc. § 6-337(c), the trial court may consider
the evidence established and produced at that hearing only.
4. Rules of the Supreme Court: Pretrial Procedure: Costs: Proof. The party
making the motion for sanctions has the burden to prove the truth of the matter
that was previously denied and that reasonable expenses were incurred in doing
so. The burden then shifts to the nonmoving party to prove that one of the four
exceptions stated in Neb. Ct. R. Disc. § 6-337(c) applies.
5. Judgments: Appeal and Error. Where the record adequately demonstrates that
the decision of the trial court is correct, although such correctness is based on a
ground or reason different from that assigned by the trial court, an appellate court
will affirm.
6. Rules of the Supreme Court: Pretrial Procedure. Pursuant to Neb. Ct. R. Disc.
§ 6-336(a), each matter of which an admission is requested shall be separately set
forth by the party making the request.
Appeal from the District Court for Sarpy County, david K.
arTerburn, Judge, on appeal thereto from the County Court
for Sarpy County, Todd J. huTTon, Judge. Judgment of District
Court affirmed.
Van A. Schroeder, of Bertolini, Schroeder & Blount, for
appellant.
Kevin J. McCoy, of Smith, Gardner, Slusky, Lazer, Pohren &
Rogers, L.L.P., for appellee.
sievers, carlson, and cassel, Judges.
cassel, Judge.
INTRODUCTION
In a suit based on an intentional assault, Trisha K. McCormick
served Samuel M. Allmond with requests for admission, many of
which Allmond denied. After a bench trial, McCormick secured
a monetary judgment. The county court denied McCormick’s
56 	18 NeBRASKA APPeLLATe RePORTS
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posttrial motion for fees and costs incurred in proving matters
which Allmond had denied, and the district court affirmed the
decision. Because McCormick’s requests were both compound
and unnecessarily confusing, we conclude that Allmond had a
good reason for the failure to admit. We therefore affirm.
BACKGROUND
On April 16, 2005, in an incident best characterized as
“road rage,” Allmond intentionally hit McCormick in the face
with his hand while McCormick was stopped at an intersec-
tion and sitting in the driver’s seat of her vehicle. As a result,
McCormick 	developed 	temporomandibular 	joint 	disorder.
McCormick sought medical treatment and ultimately had sur-
gery to treat the disorder.
On May 30, 2006, McCormick filed a complaint in county
court alleging that she suffered temporomandibular joint dis-
order, contusions, headaches, swelling, and malocclusion as a
result of the incident. After a bench trial on the merits of the
case, the county court awarded McCormick a judgment in the
amount of $50,000 for “total damages sustained plus costs.”
The court did not allocate the award to any specific category of
damages but stated that where the treatment provider indicated
that the symptoms were “strictly viral [or] diabetes related,”
such losses were not recoverable.
After trial, McCormick filed a motion pursuant to Neb.
Ct. R. Disc. § 6-337(c) for “fees and costs” resulting from
Allmond’s failure to “admit the fairness and reasonableness
of certain medical expenses and the necessity of the treatment
behind such expense.” The evidence adduced on McCormick’s
posttrial motion shows that in January 2007, during the dis-
covery phase of the case and prior to trial, McCormick sent
Allmond 31 requests for admission. This included 16 requests
for admission regarding medical treatment, which were phrased
as follows: “Admit (or deny) that as a direct and proximate
result of the blow you inflicted upon . . . McCormick, on April
16, 2005, she was charged by [medical provider] for necessary
[medical services] the fair and reasonable sum of $ . . . [pur-
suant to attached invoices].” In response, Allmond denied all
such requests.
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At the hearing on the motion for sanctions, McCormick
offered into evidence the requests for admission, Allmond’s
response to the requests, and an affidavit by McCormick’s
counsel setting forth the expenses incurred in proving the
matters to which Allmond did not admit. McCormick also
requested that the court take judicial notice of her trial testi-
mony and the trial testimony of a number of medical and medi-
cal billing witnesses. The county court denied McCormick’s
motion on the ground contained in § 6-337(c)(3) because the
court found that Allmond had “reasonable grounds upon which
he believed he may prevail on the merits at trial.”
McCormick appealed to the district court, which affirmed
the county court’s order. The district court’s order also stated
that the ground set forth in § 6-337(c)(4), that “‘[t]here was
other good reason for the failure to admit,’” was an additional
ground for affirming the order.
McCormick timely appeals.
ASSIGNMeNTS OF eRROR
McCormick assigns, restated, that the district court erred in
(1) failing to reverse the county court’s decision to deny her
motion for expenses and fees pursuant to § 6-337(c), (2) fail-
ing to reverse the county court’s decision on the ground that
the county court used evidence not contained in the record in
making its decision, (3) adopting the findings and conclusions
of the county court, and (4) finding that there were other good
reasons for failure to admit pursuant to § 6-337(c)(4).
STANDARD OF ReVIeW
[1,2] On appellate review, decisions regarding discovery
are generally reviewed under an abuse of discretion standard.
Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008). The
standard of review of a trial court’s determination of a request
for sanctions is whether the trial court abused its discre-
tion. Id.
ANALYSIS
Evidentiary Record.
McCormick argues that the county court improperly con-
sidered evidence presented at trial in the hearing for discovery
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sanctions. McCormick points to the introductory phrase of
a sentence in the county court’s order which states, “As the
parties[’] evidence placed both causation and necessity of
care in issue, pursuant to [§ 6-337(c)(3)] the court finds that
[Allmond] had reasonable grounds upon which he believed
he may prevail on the merits at trial.” (emphasis supplied.)
McCormick argues that the introductory phrase refers to the
evidence adduced at trial and not to the evidence introduced
at the hearing on the posttrial motion. At the hearing on the
posttrial motion, the only evidence offered and received was
composed of transcriptions of McCormick’s witnesses’ trial
testimony (included in the record after the court took judicial
notice of such at McCormick’s request), the exhibits intro-
duced during her witnesses’ testimony, and the requests and the
responses to such requests.
[3] Pursuant to Kaminski v. Bass, 252 Neb. 760, 768, 567
N.W.2d 118, 124 (1997), in determining whether to award
sanctions pursuant to § 6-337(c), the trial court may con-
sider the “evidence established and produced at that hear-
ing” only.
The court’s statement regarding “the parties[’] evidence”
does not establish that the court improperly considered evi-
dence outside the scope of the hearing on sanctions. The
sentence immediately preceding the one which we quoted
states that “the discovery answers in evidence placed at issue
material facts upon which the parties based their theories of
recovery.” The most logical conclusion is that in subsequently
referring to “evidence” that “placed both causation and neces-
sity of care in issue,” the court was referring to the discovery
answers which were properly admitted into evidence. The con-
clusion that the county court did not utilize improper evidence
in reaching its decision is further supported by the fact that
the court’s order did not make a direct reference to any mate-
rial outside the scope of the evidence adduced at the hearing
for sanctions.
Costs.
[4] The remainder of McCormick’s argument is that the
county court abused its discretion in failing to award her the
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costs she incurred in proving the truthfulness of requests for
admission that Allmond had denied. We briefly set forth the
applicable law. Section 6-337(c) provides as follows regarding
the recovery of such costs:
expenses on Failure to Admit. 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 matter, 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 reason-
able 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 was other good reason for the failure to
admit.
The party making the motion for sanctions has the burden to
prove the truth of the matter that was previously denied and
that reasonable expenses were incurred in doing so. The burden
then shifts to the nonmoving party to prove that one of the four
exceptions stated in § 6-337(c) applies. See Salazar v. Scotts
Bluff Cty., 266 Neb. 444, 665 N.W.2d 659 (2003).
We assume without deciding that McCormick sustained her
burden of proof and that the burden then shifted to Allmond
regarding one or more of the exceptions.
[5] The question then becomes whether Allmond proved
one or more of the exceptions contained in § 6-337(c), and
we particularly focus on § 6-337(c)(4). It does not matter that
this is a different ground from the one stated by the county
court. Where the record adequately demonstrates that the deci-
sion of the trial court is correct, although such correctness is
based on a ground or reason different from that assigned by the
trial court, an appellate court will affirm. Harvey v. Nebraska
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Life & Health Ins. Guar. Assn., 277 Neb. 757, 765 N.W.2d
206 (2009).
[6] The county court’s denial of McCormick’s motion for
costs was not an abuse of discretion because “[t]here was other
good reason for the failure to admit” pursuant to § 6-337(c)(4).
The “good reason” is found in the form of the requests for
admission. The requests were confusing due to their overly
complicated syntax and their compound structure. A request
for admission should be straightforward and simple. Pursuant
to Neb. Ct. R. Disc. § 6-336(a), “[e]ach matter of which an
admission is requested shall be separately set forth by the party
making the request . . . .” Further, the request itself is supposed
to be easy to answer.
A treatise on federal practice, which is in part based on fed-
eral precedent regarding the corresponding federal discovery
rule, provides support for our conclusion. Nebraska courts will
look to federal decisions interpreting corresponding federal
rules for guidance in interpreting similar Nebraska civil plead-
ing rules. Blinn v. Beatrice Community Hosp. & Health Ctr.,
270 Neb. 809, 708 N.W.2d 235 (2006). Based on federal deci-
sions, the treatise explains how requests for admissions are to
be drafted, stating:
The requesting party bears the burden of drafting the
request clearly and specifically so that the responding
party can easily agree or disagree. When a request for
admission is properly drafted, the answering party should
have little or no difficulty responding. In response to an
unambiguous, succinct, but specific request for admission
the responding party should simply be able to agree or
disagree with the request, that is, to admit or deny the
request, to explain succinctly why it is not possible to
answer, or to offer any other necessary qualification.
7 James Wm. Moore et al., Moore’s Federal Practice ¶ 36.10[6]
at 36-24 to 36-25 (3d ed. 2009). See, also, 8A Charles Alan
Wright et al., Federal Practice and Procedure § 2258 (2d
ed. 1994).
First, McCormick admits that she was actually request-
ing admissions on multiple subject matters, which means
the requests at issue were compound. In our review of the
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requests, 	it 	appears 	that 	McCormick 	was 	using 	a 	single
request to seek admissions of at least four separate matters.
McCormick requested that Allmond admit (1) that the blow
inflicted by Allmond was the proximate cause of McCormick’s
injuries, (2) that the injuries necessitated medical treatment,
(3) that McCormick incurred particular medical expenses, and
(4) that the amount of the expenses was fair and reasonable.
Clearly, each of these matters is a separate topic and, pursu-
ant to § 6-336(a), should have been the subject of a sepa-
rate request.
Second, the compound nature of the requests is disguised
by the use of complicated syntax which melds all of the
requests into a single sentence. In part, McCormick added the
adjectives “necessary,” “fair,” and “reasonable” to describe the
medical expenses without directly requesting an admission
that the medical expenses were as such. We do not condone
the practice of adding adjectives to a request in such a manner
that an admission to one item would also become an admis-
sion to additional unrelated items. A request for admission
should necessitate only a simple response—not one where the
entire request must be dissected into separate, unrelated parts
and answered as such. Because McCormick’s requests were
compound and unnecessarily complicated, we conclude that
“[t]here was other good reason for the failure to admit” pursu-
ant to § 6-337(c)(4).
We 	reject 	McCormick’s 	contention 	that 	pursuant 	to
§ 6-336(a), good faith required that Allmond deny only a por-
tion of the request and admit to the remainder. While this prin-
ciple may require a partial admission in some instances, it does
not control the outcome in the instant case. As we have pre-
viously noted, another portion of § 6-336(a) requires that each
discovery request pertain to only one subject matter. These two
provisions read together indicate that a party has the duty to
provide a partial denial only where the entire request pertains
to a particular subject matter. For example, this would be true
in a situation where McCormick requested that Allmond admit
that McCormick’s medical expenses were $500 but McCormick
only incurred $400 in medical expenses. Therefore, this argu-
ment lacks merit.
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CONCLUSION
Because the requests for admission at issue were com-
pound and unnecessarily complicated, we affirm the district
court’s judgment affirming the county court’s decision denying
McCormick’s motion for the costs she incurred in proving the
matters contained therein.
affirMed.
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