Hill v. Tevogt

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293 Nebraska Reports
HILL v. TEVOGT
Cite as 293 Neb. 429
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
Jody A. Hill and Dean Owen Thorsen,
appellees, v. Mark Tevogt, appellant.
879 N.W.2d 369
Filed April 22, 2016. 	No. S-15-311.
1. Rules of the Supreme Court: Pretrial Procedure: Appeal and Error.
The determination of an appropriate discovery sanction rests within the
discretion of the trial court, and an appellate court will not disturb it
absent an abuse of discretion.
2. Judgments: Words and Phrases. A judicial abuse of discretion exists
when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.
3. Rules of the Supreme Court: Pretrial Procedure. The court may sanc-
tion a party under Neb. Ct. R. Disc. § 6-337, despite the absence of a
prior discovery order.
4. ____: ____. The appropriate sanction under Neb. Ct. R. Disc. § 6-337
depends on the facts.
5. ____: ____. Factors which are relevant to sanctions under Neb. Ct. R.
Disc. § 6-337 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 warned the sanctioned party about
the consequences of its 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.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Reversed and remanded for further
proceedings.
James D. Sherrets and Jared C. Olson, of Sherrets, Bruno &
Vogt, L.L.C., for appellant.
Brian J. Muench for appellees.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:27 AM CST

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293 Nebraska Reports
HILL v. TEVOGT
Cite as 293 Neb. 429
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and Kelch, JJ.
Connolly, J.
SUMMARY
In 2012, Mark Tevogt purchased the interests of Jody A.
Hill and Dean Owen Thorsen in a business formed as JGP,
LLC. Tevogt financed the purchase by executing a promis-
sory note under which Hill and Thorsen are the payees. Tevogt
soon defaulted, and Hill and Thorsen (collectively the plain-
tiffs) sued him for damages under the promissory note. Tevogt
alleged in his answer that the plaintiffs had made misrepresen-
tations and committed fraud. The court overruled the plaintiffs’
first motion for summary judgment because of statements
Tevogt made in his affidavit about the plaintiffs’ failure to
inform him of business debts.
The plaintiffs moved for summary judgment again after
Tevogt twice failed to attend his deposition. At a hearing on
the motion, the plaintiffs asked the court to sanction Tevogt
because he had not given them an opportunity to depose
him about the statements in his affidavit. The court sanc-
tioned Tevogt by excluding the statements Tevogt made in his
affidavit, and ultimately entered summary judgment for the
plaintiffs. Tevogt appeals and argues that the court imposed
an unduly harsh discovery sanction. We conclude that the
severity of the sanction was an abuse of discretion. We there-
fore reverse the summary judgment and remand the cause for
further proceedings.
BACKGROUND
In 2013, the plaintiffs sued Tevogt, alleging that he had
defaulted on a promissory note payable to them. The plaintiffs
claimed that the unpaid principal was about $120,000. They
asked the court to award them damages for the unpaid princi-
pal, with interest accruing from the date of default.
Tevogt listed 12 affirmative defenses in his answer, includ-
ing “fraud and/or fraud in the inducement.” He also included a

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HILL v. TEVOGT
Cite as 293 Neb. 429
“Counterclaim” which set out four causes of action: fraudulent
misrepresentation, negligent misrepresentation, fraudulent con-
cealment, and breach of contract. He alleged that the plaintiffs
had misrepresented or concealed the financial status of JGP.
The plaintiffs moved for summary judgment and offered an
affidavit that Hill signed in February 2014. Hill averred that
Tevogt had defaulted on a promissory note with an unpaid
principal of about $120,000 and a default interest rate of 6
percent per year. Hill stated that she and Thorsen did not mis-
represent JGP’s finances or withhold information from Tevogt.
She acknowledged that “there was $65,000.00 due” to an
underwriter, but stated that JGP’s manager told Tevogt about
the shortfall.
Tevogt offered his own affidavit. He claimed that the plain-
tiffs told him that “all bills/expenses/accounts were current.”
He alleged that after he executed the promissory note, he
learned that the “account used for holding premiums collected
to be paid to the insurer/underwriter” was “approximately
$60,000.00 short.” Tevogt further stated that the plaintiffs gave
JGP’s employees large raises and failed to pay income taxes,
which he learned “at the 11th hour before the closing.”
The court overruled the plaintiffs’ motion for summary
judgment. It stated that Tevogt’s allegation in his affidavit
that the plaintiffs failed to pay income taxes did not create a
genuine issue of material fact, because Tevogt knew about the
problem before he signed the promissory note. The court was
also not impressed by Tevogt’s allegation that the plaintiffs
gave JGP’s employees large raises, because it reasoned that
Tevogt could simply reverse the raises. But the court concluded
that Tevogt’s statements about a shortfall in the underwriting
account created a genuine issue of material fact preventing a
summary judgment.
In February 2015, the plaintiffs again moved for summary
judgment. They claimed that they had “attempted twice to take
[Tevogt’s] deposition and [Tevogt] twice failed to appear for
said deposition.”

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HILL v. TEVOGT
Cite as 293 Neb. 429
At the hearing on their motion, the plaintiffs offered an affi-
davit signed by Hill in February 2015. The affidavit was largely
the same as Hill’s February 2014 affidavit, but it included
more details about Tevogt’s relationship with JGP’s business
manager. Hill stated that Tevogt learned of the underwriting
account shortfall before he executed the promissory note.
The court also received a notice that the plaintiffs sent to
Tevogt stating that they intended to depose him on November
4, 2014. The plaintiffs’ attorney signed the notice and mailed
it to Tevogt’s attorney on October 24.
The November 4, 2014, deposition shows that Tevogt’s
attorney was present, but not Tevogt himself. The plaintiffs’
attorney said that the plaintiffs had tried to contact Tevogt’s
attorney twice before mailing the notice on October 24. On
October 29, the plaintiffs’ attorney received a postal notifica-
tion that the notice of deposition sent to Tevogt’s attorney had
been forwarded to another address. On November 3, Tevogt’s
attorney left a message for the plaintiffs’ attorney stating that
Tevogt was “‘out of the country all week.’” Tevogt’s attorney
claimed that he had tried to reschedule.
On December 11, 2014, the plaintiffs tried to depose Tevogt
again. Their attorney mailed a notice of deposition to Tevogt’s
attorney on December 1. Neither Tevogt nor his attorney
arrived at the scheduled location.
In the plaintiffs’ attorney’s affidavit, he stated that Tevogt’s
attorney had been unresponsive. The plaintiffs’ attorney claimed
that he had asked Tevogt’s attorney for dates when Tevogt
would be available after November 4, 2014, but that Tevogt’s
attorney did not answer.
At the summary judgment hearing, the plaintiffs asked the
court to sanction Tevogt:
[W]e’re asking the Court that, based upon our inability to
question . . . Tevogt on his — the allegations in his affida-
vit and the affirmative defense that he raised and that the
Court has found previously that there’s a factual dispute
regarding, that he not be allowed to testify or to offer

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HILL v. TEVOGT
Cite as 293 Neb. 429
evidence as to that alleged lack of knowledge, because he
hasn’t showed up twice for a deposition. I mean, we’re
trying to cross-examine him as to what he knew and when
he knew it.
Tevogt’s attorney said that Tevogt was “out of town” for the
first deposition. Tevogt’s attorney said that when he tried to
reschedule, the plaintiffs’ attorney “[b]asically said no.” As for
the second deposition, Tevogt’s attorney said he never received
the notice. Tevogt’s attorney suggested that the court continue
the trial so the plaintiffs could depose Tevogt. He promised to
“make sure that [Tevogt is] there for it.” The plaintiffs’ attor-
ney responded that the address of Tevogt’s attorney was hard to
pin down and that his “trial calendar for the next three weeks
is just loaded.”
On March 5, 2015, the court entered an order sanction-
ing Tevogt by excluding the statements in his affidavit that
the plaintiffs had misrepresented the financial status of JGP
and did not disclose that JPG’s “underwriting account was
short $60,000.00.” A week later, the court entered a sum-
mary judgment for the plaintiffs and dismissed Tevogt’s
“Counterclaim.”
ASSIGNMENTS OF ERROR
Tevogt assigns, restated, that the court erred by (1) sanction-
ing him for his failure to attend his depositions and (2) sustain-
ing the plaintiffs’ second motion for summary judgment.
STANDARD OF REVIEW
[1,2] The determination of an appropriate discovery sanc-
tion rests within the discretion of the trial court, and an appel-
late court will not disturb it absent an abuse of discretion.1 A
judicial abuse of discretion exists when the reasons or rulings
of a trial judge are clearly untenable, unfairly depriving a
1 See Coral Prod. Corp. v. Central Resources, 273 Neb. 379, 730 N.W.2d
357 (2007).

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HILL v. TEVOGT
Cite as 293 Neb. 429
litigant of a substantial right and denying just results in matters
submitted for disposition.2
ANALYSIS
Tevogt argues that the court abused its discretion by sanc-
tioning him for his failure to attend two depositions. The par-
ties agree that the court sanctioned Tevogt by excluding the
statements in his affidavit that the plaintiffs misrepresented the
financial status of JGP and did not disclose an approximately
$60,000 shortfall in the underwriting account. This was the
only evidence offered by Tevogt to support his affirmative
defense of fraud and his counterclaims.
The main purpose of the discovery process is to narrow the
factual issues in controversy so that the trial is efficient and
economical.3 The discovery process helps the litigants conduct
an informed cross-examination and avoid tactical surprise, a
circumstance which might lead to a result based more on legal
maneuvering than on the merits of the case.4
[3] If the parties fall short of their discovery obligations,
Neb. Ct. R. Disc. § 6-337 (rule 37) allows the court to sanction
them. In relevant part, rule 37 states:
(b) Failure to Comply with Order.
. . . .
(2) Sanctions by Court in Which Action is Pending. If
a party . . . fails to obey an order to provide or permit dis-
covery . . . 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;
2 Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
3 See Paulk v. Central Lab. Assocs., 262 Neb. 838, 636 N.W.2d 170 (2001).
4 See id.

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HILL v. TEVOGT
Cite as 293 Neb. 429
(B) An order refusing to allow the disobedient party to
support or oppose designated claims or defenses, or pro-
hibiting him or her from introducing designated matters
in evidence;
(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 disobedi-
ent party;
. . . .
(d) Failure of Party to Attend at Own Deposition or
Serve Answers to Interrogatories or Respond to Request
for Inspection. If a party . . . fails
(1) To appear before the officer who is to take his or
her deposition, after being served with a proper notice, or
. . . .
(3) . . . the court in which the action is pending on
motion may make such orders in regard to the failure as
are just, and among others it may take any action autho-
rized under paragraphs (A), (B), and (C) of subdivision
(b)(2) of this rule.
Unlike under rule 37(b),5 the court may sanction a party under
rule 37(d), despite the absence of a prior discovery order.6 Rule
37 resembles Fed. R. Civ. P. 37, so we may look to federal
decisions for guidance.7
5 See 7 James Wm. Moore, Moore’s Federal Practice § 37.90 (3d ed. 2016).
6 See, Paulk v. Central Lab. Assocs., supra note 3; Norquay v. Union Pacific
Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987). See, also, Guidry v.
Continental Oil Co., 640 F.2d 523 (5th Cir. 1981); Fox v. Studebaker-
Worthington, Inc., 516 F.2d 989 (8th Cir. 1975); Robison v. Transamerica
Insurance Co., 368 F.2d 37 (10th Cir. 1966); Alexander v. FBI, 186
F.R.D. 6 (D.D.C. 1998); Woodstock Ventures LC v. Perry, 164 F.R.D. 321
(N.D.N.Y. 1996); 7 Moore, supra note 5; 8B Charles Alan Wright et al.,
Federal Practice and Procedure § 2290 (3d ed. 2010).
7 See, Behrens v. Blunk, 280 Neb. 984, 792 N.W.2d 159 (2010); Gernstein
v. Lake, 259 Neb. 479, 610 N.W.2d 714 (2000); Stanko v. Chaloupka, 239
Neb. 101, 474 N.W.2d 470 (1991).

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HILL v. TEVOGT
Cite as 293 Neb. 429
Rule 37 sanctions serve several purposes. First, they punish
a litigant or counsel who might be inclined to frustrate the dis-
covery process.8 Second, they deter those who are tempted to
break the rules.9 Finally, they prevent parties who have failed
to meet their discovery obligations from profiting from their
misconduct.10
[4,5] Even if the court imposes a discovery sanction that
amounts to a “death sentence,” we review the court’s decision
for an abuse of discretion.11 The appropriate sanction under
rule 37 depends on the facts.12 Relevant factors include the
prejudice or unfair surprise suffered by the party seeking sanc-
tions, the importance of the evidence which is the root of the
misconduct, whether the court warned the sanctioned party
about the consequences of its 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
Tevogt notes that federal courts are reluctant to dismiss a
complaint or enter a default judgment as a discovery sanction
8 Booth v. Blueberry Hill Restaurants, 245 Neb. 490, 513 N.W.2d 867
(1994).
9 See, Behrens v. Blunk, supra note 7; Norquay v. Union Pacific Railroad,
supra note 6.
10 Phillips v. Monroe Auto Equip. Co., 251 Neb. 585, 558 N.W.2d 799
(1997).
11 Behrens v. Blunk, supra note 7, 280 Neb. at 991, 792 N.W.2d at 165.
12 Paulk v. Central Lab. Assocs., supra note 3; Booth v. Blueberry Hill
Restaurants, supra note 8; Stanko v. Chaloupka, supra note 7; Norquay v.
Union Pacific Railroad, supra note 6.
13 See, Tisdale v. Federal Exp. Corp., 415 F.3d 516 (6th Cir. 2005); Belk
v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305 (4th Cir. 2001);
LeGrande v. Adecco, 233 F.R.D. 253 (N.D.N.Y. 2005); Paulk v. Central
Lab. Assocs., supra note 3. See, also, Hyde & Drath v. Baker, 24 F.3d
1162 (9th Cir. 1994); Mut. Federal Sav. & Loan v. Richards & Associates,
872 F.2d 88 (4th Cir. 1989).

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HILL v. TEVOGT
Cite as 293 Neb. 429
unless the sanctioned party showed bad faith, willfulness, or
fault.14 We have said that dismissal may be an appropriate
sanction for an “inexcusably recalcitrant” party.15 In a hierar-
chy of harshness, the exclusion of evidence lies somewhere
between the payment of expenses caused by the misconduct
and dismissal or default judgment.16
We conclude that the court abused its discretion by exclud-
ing statements Tevogt made in his affidavit as a sanction for
his failure to attend two depositions. The exclusion of the
evidence was particularly harsh in this case because it was
the only evidence adduced by Tevogt. The court’s order did
not consider less drastic sanctions, and the court did not warn
Tevogt that he faced such a severe penalty. And the willful-
ness of Tevogt’s failure is questionable. His attorney attended
the first deposition, despite receiving notice only 1 day ear-
lier, and told the plaintiffs that Tevogt was unable to attend.
Tevogt’s attorney claimed that he never received notice of
the second deposition. Tevogt could, of course, be feigning
ignorance as part of a “cagey defense strategy,” but that is
far from clear on the record before us.17 Cases in which the
court entered a “death sentence” for the sanctioned party’s
failure to attend his or her deposition tend to involve a pattern
of disregard for the discovery rules, prior imposition of less
severe sanctions, and warnings that continued noncompliance
14 See, Collins v. Illinois, 554 F.3d 693 (7th Cir. 2009); Archibeque v.
Atchison, Topeka & Santa Fe Ry. Co., 70 F.3d 1172 (10th Cir. 1995);
Hyde & Drath v. Baker, supra note 13; Beil v. Lakewood Engineering and
Mfg. Co., 15 F.3d 546 (6th Cir. 1994); 7 Moore, supra note 5, § 37.96; 8B
Wright et al., supra note 6, § 2284; Annot., 156 A.L.R. Fed. 601, § 2[a]
(1999).
15 See Stanko v. Chaloupka, supra note 7, 239 Neb. at 103, 474 N.W.2d at
471.
16 Norquay v. Union Pacific Railroad, supra note 6.
17 See Woodstock Ventures LC v. Perry, supra note 6, 164 F.R.D. at 323.

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Cite as 293 Neb. 429
will be severely dealt with.18 A party’s failure to attend depo-
sitions may sometimes warrant a drastic sanction, but this is
not such a case.
Because the district court erred in excluding the evidence,
it also erred in its order granting summary judgment for the
plaintiffs, as the evidence creates a genuine issue of material
fact about a shortfall in the underwriting account.
CONCLUSION
We conclude that the court abused its discretion by exclud-
ing statements in Tevogt’s affidavit as a sanction for his failure
to attend depositions, and further erred in granting summary
judgment for the plaintiffs. We express no opinion whether
Tevogt’s conduct warranted a lesser sanction. We reverse the
judgment entered for the plaintiffs and remand the cause for
further proceedings.
Reversed and remanded for
further proceedings.
18 See, Collins v. Illinois, supra note 14; Stars’ Desert Inn Hotel & Country
Club v. Hwang, 105 F.3d 521 (9th Cir. 1997); Hyde & Drath v. Baker,
supra note 13; Viswanathan v. Scotland Cty. Bd. of Educ., 165 F.R.D. 50
(M.D.N.C. 1995).