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Zapata v. Roberts

Court of Appeals of Nebraska

May 21, 2013

John Zapata, appellant,
v.
Rick Roberts et al., appellees.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Sheridan County: Derek C. Weimer, Judge.

John Zapata, pro se.

Andrew W. Snyder, of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, P.C., L.L.O., for appellee.

Irwin, Moore, and Pirtle, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

John Zapata appeals from an order of the district court for Sheridan County which resolved various discovery motions. Specifically, Zapata challenges the portions of the order that imposed sanctions against him for his failure to appear at a previously scheduled deposition and that required him to submit to a deposition within 30 days in Scottsbluff. Finding no abuse of discretion in the imposition of sanctions against Zapata, we affirm that portion of the order. Because the provision requiring Zapata to submit to a deposition does not constitute a final, appealable order, the appeal of this provision is dismissed.

BACKGROUND

This civil action arises out of a real estate transaction in Sheridan County. Zapata's operative petition, his third amended petition, asserts various causes of action against Rick Roberts and Loretta Roberts, as well as Matt Roberts, Kari Roberts, Daryn Roberts, and Security First Bank, which causes of action we need not discuss further in connection with this appeal. We note that prior orders have dismissed the third amended petition as to Security First Bank and Kari and Daryn, and have dismissed certain causes of action against Matt.

In November 2012, Zapata, as well as Rick, Loretta, and Matt (collectively Appellees), each filed various discovery motions. Specifically, Zapata filed a motion to compel and a request for sanctions regarding a request for documents Zapata served upon Appellees, as well as a motion for a protective order regarding the taking of his deposition. Appellees filed a motion for protective order regarding certain of the documents requested by Zapata and a motion for sanctions regarding Zapata's failure to attend his previously scheduled deposition.

On November 28, 2012, the district court entered its order regarding the various discovery motions. In pertinent part, pursuant to Neb. Ct. R. Disc. § 6-337(d)(1), the court entered sanctions of $320.70 against Zapata for his failure to appear at a scheduled deposition. In addition, the court required Zapata to appear for a deposition in Scottsbluff within 30 days. Zapata appeals from this order.

ASSIGNMENTS OF ERROR

Zapata's brief fails to specifically assign error as required by Neb. Rev. Stat. § 25-1919 (Reissue 2008) and Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2012). In the absence of plain error, an appellate court considers only claimed errors which are both assigned and discussed. In re Trust of Rosenberg, 273 Neb. 59, 727 N.W.2d 430 (2007). Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. First Nat. Bank in Morrill v. Union Ins. Co., 246 Neb. 636, 522 N.W.2d 169 (1994). Zapata ...


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