Sullivan v. Farmers Insurance Exchange, No. A-09-816 (Neb. App. 6/1/2010)

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MORTON D. SULLIVAN, APPELLANT, v. FARMERS INSURANCE EXCHANGE, APPELLEE.

No. A-09-816.

Court of Appeals of Nebraska.

Filed June 1, 2010.

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed in part, and in part vacated.

Morton D. Sullivan, pro se.

Daniel P. Chesire, Kyle Wallor, and John M. Walker, of Lamson, Dugan & Murray, L.L.P., for appellee.

SIEVERS, MOORE, and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

CASSEL, Judge.

INTRODUCTION

Following a jury trial, the district court entered judgment in favor of Morton D. Sullivan against his insurer, Farmers Insurance Exchange (Farmers). Sullivan appeals the court's denial of his motion to recuse, entry of sanctions, and overruling of his motion for new trial. Because the court imposed a punitive sanction for the alleged violation of an order that was never entered, we vacate the order sanctioning Sullivan. Otherwise, we affirm.

BACKGROUND

Sullivan testified that he "fixes websites" and publishes the Amber Alert Statewide Community Information Services newspaper, which he called "a tabloid newspaper." He testified that he had approximately six Web sites in operation from March 2002 to the time of trial.

In March 2002 and February 2003, Sullivan was involved in automobile accidents with uninsured motorists. He sued Farmers to recover for his injuries. After a jury trial, the court entered a judgment of $91,456.32 in favor of Sullivan.

Sullivan timely appeals. Pursuant to authority granted to this court under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.

ASSIGNMENTS OF ERROR

Sullivan assigns that the district court erred in (1) denying his motion to recuse the judge, (2) entering sanctions against him, and (3) denying his motion for a new trial.

Sullivan also assigned that "the trial court made errors of law and fact that prevented [him from exercising] the right to a [f]air [t]rial." However, we do not consider this assignment of error because Sullivan makes no argument on this issue separate from the arguments on the other assigned errors. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009).

STANDARD OF REVIEW

A motion to recuse for bias or impartiality is initially entrusted to the discretion of the trial court, and the trial court's ruling will be affirmed absent an abuse of that discretion. Dinges v. Dinges, 16 Neb. App. 275, 743 N.W.2d 662 (2008).

The standard of review of a trial court's determination of a request for sanctions is whether the trial court abused its discretion. Malchow v. Doyle, 275 Neb. 530, 748 N.W.2d 28 (2008).

A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion. Lacey v. State, 278 Neb. 87, 768 N.W.2d 132 (2009).

ANALYSIS

Motion to Recuse.

Sullivan argues that the trial judge should have recused himself due to a conflict of interest. Farmers claims that Sullivan waived his right to obtain the judge's disqualification. A party may be said to have waived his or her right to obtain a judge's disqualification when the alleged basis therefor has been known to the party for some time, but the objection is raised in an untimely fashion, well after the judge has participated in the proceedings. Jim's, Inc. v. Willman, 247 Neb. 430, 527 N.W.2d 626 (1995), disapproved on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002). Here, the trial judge was assigned to this case when it was filed on March 7, 2006. The bill of exceptions shows that Sullivan personally appeared before the trial judge on October 11, when it heard Farmers' motion for leave to file an answer out of time. On April 5, 2007, Sullivan filed a motion for recusal "on the grounds of the appearance of bias and prejudice and potential conflict as a result of past dealings with [Sullivan] and the involvement of [the judge's] law firm prior to his appointment to the bench and their involved litigation with [Sullivan] on multiple occasions." He introduced exhibits from the 1970's and 1980's relating to this litigation. Assuming without deciding that the matters raised by the motion would have been sufficient to require recusal, we conclude that Sullivan waived the right to obtain the judge's recusal by waiting over a year after the judge was assigned to the case to seek his recusal despite being aware of the reasons for recusal.

In Sullivan's brief, he asserts that the judge made prejudicial comments about Sullivan to his counsel, such as "'Are you sure you really want to represent this guy,'" and "'Do you know who he is?'" Brief for appellant at 1. However, the record does not support Sullivan's assertion. It is incumbent upon the appellant to present a record supporting the errors assigned; absent such a record, an appellate court will affirm the lower court's decision regarding those errors. In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009).

Sanctions.

On April 10, 2007, Farmers filed a motion for sanctions, seeking dismissal of Sullivan's complaint under Neb. Ct. R. Disc. § 6-337(b)(2)(C) for Sullivan's "failure to cooperate with discovery, and other actions taken." That rule provides in pertinent part:

(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 discovery, . . . 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:

....

(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.

The court heard the motion on April 23, 2007, at which time Farmers' counsel advised the court that in that day's mail, Sullivan's counsel provided supplemental answers to interrogatories "which pretty much resolves the discovery issues that are raised in this motion" and that the court did not need "to be concerned with that issue." Farmers' counsel then discussed another ground contained in the motion: that when Sullivan spoke with a Farmers' employee about settling his case, he said, "'See you on the website, Baby.'" Farmers' counsel conducted an Internet search and found a Web site created by Sullivan (we intentionally omit mentioning the uniform resource locator of the Web site), which included descriptions and photographs of the automobile accidents at issue. During the hearing, Farmers' counsel asserted that it was "an abuse of process" for Sullivan to threaten to put Farmers' employees on his Web site due to dissatisfaction with the way Farmers was settling his claim. Farmers' counsel also stated that Sullivan, in answering some interrogatories, identified the home addresses of certain Farmers' employees. Farmers requested a sanction of dismissal. Sullivan's counsel pointed out that nothing had been shown to the court to suggest that Sullivan had put anybody's name, address, telephone number, et cetera on the Web site. The court denied the motion for sanctions without prejudice but stated:

I did find it somewhat shocking, I have to say. And [Sullivan's counsel], I certainly hope that you being involved in the case will transmit my warning to . . . Sullivan . . . that anything that he does could become relevant for purposes of evidence at the time of a trial with respect to his claim.

The court further stated, "So with that warning, I'm going to go ahead and deny. Now, I'm denying this motion without prejudice . . . . If there's any further activity of this nature which you feel would warrant bringing the matter back to the [c]ourt's attention, I'm not considering it a res judicata issue." The transcript does not contain any order from the hearing, and the trial docket states only that the motion for sanctions was denied without prejudice.

Just prior to trial and during a March 9, 2009, hearing on a motion in limine, Farmers' counsel stated that he had "one housekeeping matter" with regard to his previously filed motion for sanctions concerning "Sullivan's activities with naming some home addresses with respect to my client's employees in the discovery responses and had some conversations he had with the claims representative and some website information." Farmers' counsel stated that he found on the Internet that Sullivan had reposted his Web site about this lawsuit which identified the accidents, discussed Sullivan's injuries, and included the declaration pages relative to the coverage for both of those accidents. Farmers' counsel stated that "there's issues in here, like the coverage amounts, that you advised . . . Sullivan, through [his counsel], to cut out this nonsense and he put this website back up." After some discussion, the court stated, "It's a violation of my order." Farmers' counsel offered into evidence a printout of the Web site from March 4 "for the purposes of the previous motion for sanctions and motion to dismiss that was denied without prejudice, and the [c]ourt instructed . . . Sullivan to not be putting stuff on the Internet out there or publicly doing this stuff with respect to these accidents." The following colloquy ensued:

THE COURT: So I guess, technically, it's going to be in the nature of a contempt proceeding, because the other one was denied without prejudice, because I haven't heard a new motion.

[Farmers' counsel]: You want us to go to a contempt proceeding now and call witnesses and ask . . . Sullivan about whether or not he reposted it?

THE COURT: I'm just trying to figure out what procedurally we're doing.

[Farmers' counsel]: I'd renew my motion for...