S-21-0807 Timothy L. Ashford, PC LLO, and Timothy Ashford
S-21-0808 Timothy L. Ashford, PCLLO, and Timothy Ashford (Appellants) v. Andrea Tate (Appellee)
Appeal from the District Court for Douglas County, Judge W. Russell Bowie, III
Attorneys: William R. Harris for Appellant and Michael J. Decker for Appellee
Civil: Libel with Actual Malice, Libel, False Light, Intentional Infliction of Emotional Distress, and Defamation
Proceedings Below: The district court granted Appellee’s motion for summary judgment and dismissed Appellant’s complaint at his costs. On its own motion, the Nebraska Supreme Court ordered that these cases be consolidated on appeal and ordered that these cases be removed from the docket of the Nebraska Court of Appeals and transferred to docket of the Nebraska Supreme Court.
Issues: On appeal, Appellant makes the following ninety-eight assignments of error on both cases: 1) The court erred in denying Appellant’s request for a motion for recusal which is required under the Fourteenth Amendment's due process clause when, objectively speaking, the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable; 2) The court erred in denying Appellant’s request for a motion for recusal because a judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown; 3) The court erred in denying Appellant’s request for a motion for recusal because the Fourteenth Amendment's due process clause may sometimes demand recusal even when a judge has no actual bias; 4) The court erred in denying Appellant’s request for a motion for recusal because a judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown. A party alleging that a judge acted with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality; 5) The court erred in the judge refusing to recuse himself in this case because the judge was sued by Appellant for racial discrimination; 6) The court erred in the order of the judge refusing to recuse himself in this case because the judge was sued by Appellant for racial discrimination. Plaintiff’s Motion to Recuse: Defendant’s motion is denied. Plaintiff rests his Motion on the fact that he filed suit in U.S. District Court in Nebraska against this judge and several other parties. That lawsuit was dismissed without prejudice on January 25, 2018, by the U.S. Court of Appeals for the Eighth Circuit because the district court did not have jurisdiction to entertain the action. See Ashford v. Douglas County, 880 F.3d 990 (2018). The court can find no reason to recuse on these facts; 7) The court erred in granting Appellee’s Motion for Summary Judgment when matters outside of the pleadings were presented by the parties and accepted by the trial court with respect to a motion hearing and the motion shall be treated as a motion for summary judgment, and the parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by statute; 8) The court erred in granting Appellee’s Motion for Summary Judgment when the court transformed a hearing into a motion for summary judgment and the court failed to give notice of the changed status and to hold a hearing on the motion for summary judgment reversal of the motion for summary judgment is required; 9) The court erred in granting Appellee’s Motion for Summary Judgment held on October 1, 2021, and Appellant requests a reversal of the Order granting the Motion for Summary Judgment because Appellant was not given notice of the changed status from a hearing to a Motion for Summary Judgment hearing; 10) The court erred in granting Appellee’s motion for summary judgment when it received evidence which converted a motion hearing into a motion for summary judgment without giving the Appellant notice of the changed status of the motion and a reasonable opportunity to present all material made pertinent to such a motion by the rules governing summary judgment filed by Appellee, Andrea Tate, and filed by Appellee Roses Roses. The motion for summary judgment was held on October 1, 2021; 11) The summary judgment act authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, and that no genuine issue remains for trial. R.S.Supp.1951, §§ 25–1330 to 25–1336, 25–1332. Illian v. McManaman, 156 Neb. 12 (1952); 12) The court erred and this court should reverse the judgments which states: IT IS THEREFORE ORDERED that defendant’s Motion for Summary Judgment is sustained. Plaintiffs’ complaint is dismissed with prejudice at Plaintiffs cost. IT IS FURTHER ORDERED that any Motions filed and not ruled on are denied; 13) The Court erred because Appellant was not given notice of the changed status of the motion for summary judgment, the Appellee did not give Appellant notice of the motion for summary judgment and nothing in the pleadings gave Appellant notice of the motion for summary judgment. A reversal of the hearing is required if the hearing was changed to a motion for summary judgment without notice; 14) The Court erred because the denial of a motion to compel which requested Interrogatories, Request for Admissions and the Request for Production of Documents requires a reversal of a motion for summary judgment; 15) The court erred in granting the motion for summary judgment because the Appellee did not file a notice of hearing and the Court did not issue a notice of hearing to notify Appellant of the date and time of the hearing for the Motion for Summary Judgment; 16) The Court did not give Appellant notice of the changed status of the motion for summary judgment, the Appellee did not give Appellant notice of the motion for summary judgment and nothing in the pleadings gave Appellant notice of the motion for summary judgment; 17) The court erred in granting Appellee’s motion for summary judgment when it received evidence which converted a motion hearing into a motion for summary judgment without giving the Appellant notice of the changed status of the motion and a reasonable opportunity to present all material made pertinent to such a motion by the rules governing summary judgment filed by Appellee, Andrea Tate; 18) The court erred when it received evidence which converted a motion hearing into a motion for summary judgment without giving the Appellant notice of the changed status of the motion and a reasonable opportunity to present all material made pertinent to such a motion by the rules governing summary judgment filed by Appellee Roses Roses; 19) The Court erred in granting the motion for summary judgment because the record does not show proper notice of the date and time of the motion for summary judgment was given to Appellant for the motion for summary judgment by Appellee Andrea Tate or the Court; 20) The Court erred in granting the motion for summary judgment because the record does not show proper notice of the date and time of the motion for summary judgment was given to Appellant for the motion for summary judgment by Appellee, Andrea Tate, or the Court; 21) The court erred by dismissing the Appellant’s case because the court received evidence which converted Appellee’s, Andrea Tate’s, motion hearing into a motion for summary judgment Appellant notice of the changed status of the motion and the court did not give Appellant a reasonable opportunity to present all material made pertinent to such a motion by the rules governing summary judgment; 22) The court erred by dismissing the Appellant’s case because the court received evidence which converted Appellee’s, Rose Rose’s, motion hearing into a motion for summary judgment hearing Appellant notice of the changed status of the motion and the court did not give Appellant a reasonable opportunity to present all material made pertinent to such a motion by the rules governing summary judgment; 23) The court erred in denying Appellant’s request for a motion to compel because Appellee, Andrea Tate, and Appellee, Roses Roses, by and through her attorney Michael Decker refused to answer discovery when the discovery rules state the discovery must be answered so Appellant filed a motion to compel; 24) The Court erred because Appellant was not given notice of the changed status of the motion for summary judgment, the Appellee did not give Appellant notice of the motion for summary judgment and nothing in the pleadings gave Appellant notice of the motion for summary judgment. A reversal of the hearing is required if the hearing was changed to a motion for summary judgment without notice; 25) The Denial of a Motion to Compel which requested Interrogatories, Request for Admissions, and the Request for Production of Documents requires a reversal of a motion for summary judgment; 26) The court erred in denying Appellant’s request for a motion for recusal because the court erred in denying the Appellant’s Motion to Compel because the Appellees refused to comply with the discovery requests of the Appellant in the case; 27) The court erred in dismissing the Appellant’s Motion to Compel against Appellee, Andrea Tate; 28) The court erred in dismissing the Appellant’s Motion to Compel against Appellee, Roses Roses; 29) The Court erred because Appellant was not given notice of the changed status of the motion for summary judgment, the Appellee did not give Appellant notice of the motion for summary judgment and nothing in the pleadings gave Appellant notice of the motion for summary judgment; 30) The court erred and the case should be reversed because the court denied the Appellant’s Motion to compel discovery which requested answers to Discovery in the form of Interrogatories, Requests for Admissions, and Request for Production of Documents were served in case on Appellees by and through her attorney Michael Decker but were dismissed by the court; 31) The Court erred because Appellant was not given notice of the changed status of the motion for summary judgment, the Appellee did not give Appellant notice of the motion for summary judgment and nothing in the pleadings gave Appellant notice of the motion for summary judgment; 32) The court erred in denying the Appellant’s Motion to Compel because the Appellees refused to comply with the discovery requests of the Appellant in the case; 33) The court erred in dismissing the Appellant’s Motion to Compel against Appellee, Andrea Tate; 34) The court erred in dismissing the Appellant’s Motion to Compel against Appellee Roses Roses; 35) The court erred in dismissing Appellee, Roses Roses, because the service of process on Roses Roses in CI 19-9618 was completed within the statutory period pursuant to Neb. Rev. Stat. § 25-505.01 which allows service by certified mail which complied with due process and she was served within the statute of limitations period; therefore, Roses Roses was properly served but the court erred in dismissing Roses Roses from the case; 36) The court erred in dismissing Appellee, Roses Roses, in CI 19-9618 because service does not require service to be sent to the defendant's residence or restrict delivery to the addressee, due process requires notice to be reasonably calculated to apprise interested parties of the pendency of the action and to afford them the opportunity to present their objections; 37) The court erred in dismissing Appellee, Roses Roses, does not require service to be sent to the defendant's residence or restricted delivery to the addressee because due process requires notice to be reasonably calculated to apprise interested parties of the pendency of the action; 38) The court erred in dismissing Appellee, Roses Roses, from CI 19-9618 because Roses Roses received notice of the lawsuit at the same time as Appellee Andrea Tate; 39) The court erred in dismissing Appellee, Roses Roses, from CI 19-9618 because Appellee, Roses Roses, did not file an answer within the time period; 40) The Court erred in dismissing the lawsuit because the lawsuit was reasonably calculated to give notice to Appellee Roses Roses; 41) The court erred in dismissing the lawsuit against Appellee Roses Roses because Coranna Thompson signed for the lawsuit for both Roses Roses and Andrea Tate at the same time; 42) The court erred in dismissing the lawsuit against Roses Roses because Andrea Tate was served by Coranna Thompson’s signature and Appellee Andrea Tate filed an answer to CI 19-9618 before the statute of limitations and Appellee Roses Roses was served by Coranna Thompson’s signature but Roses Roses did not file an answer to CI 19-9618 before the statute of limitations; 43) The court erred and the court must reverse the order dismissing Roses from CI 19-9165 because she was served by certified mail at a place known to the Appellant and at the address which was reasonably calculated to apprise her of the lawsuit; 44) The court erred in dismissing the lawsuit against Roses Roses because Roses Roses was notified by both Appellee Andrea Tate and attorney Michael Decker of the lawsuit in CI 19-9618 before the statute of limitations; 45) The court erred in dismissing the lawsuit against Appellee Roses Roses because Michael Decker represented both Appellee Andrea Tate and Appellee Roses Roses during the entire case and Roses Roses filed an answer in CI 20-6915 in December 21, 2020; 46) The court erred in dismissing the complaint against Appellee Roses Roses because Appellee Roses Roses concealed her identity for service of process from the start of this case CI 19-9618 on December 19, 2019, until Appellee Roses Roses revealed her identity in CI 20 6915 in her answer on December 21, 2020; 47) The court erred in dismissing the lawsuit against Appellee Roses Roses because the deception to the Court is Appellee Roses Roses actually believed that by filing an answer admitting Appellee Roses Roses posted the review in CI 20-6915 on December 21, 2020, that the court would rule Appellee Roses Roses was not served in CI 19-9168 and Appellee Roses Roses did not have to file an answer before the statute of limitations in CI 19-9618; 48) The court erred in dismissing the lawsuit against Appellee Roses Roses because Appellee Roses Roses by and through her attorney Michael Decker filed an answer admitting Appellee Roses Roses was Rose Thompson in CI 20-6915 on December 21, 2020 and she concealed her identity from the Appellant during the filing of the CI 19 9618; 49) The court erred in dismissing Appellee Roses Roses because her attorney of record Michael Decker received a copy of the complaint CI 19-9618 on February 25, 2020, before the statute of limitations and when attorney Michael Decker filed a motion to dismiss on behalf of Appellee Andrea Tate in CI 19-9618 on February 25, 2020; 50) The court erred in dismissing Appellee Roses Roses because her attorney of record Michael Decker should have filed a motion to dismiss or entry of appearance for his client Appellee Roses Roses in CI 19-9618 at the same time attorney Michael Decker filed the motion to dismiss on behalf of Appellee Andrea Tate on February 25, 2020; 51) The court erred in dismissing Appellee Roses Roses in CI 19-9618 because the complaint was sent to an address reasonably calculated to give her notice; 52) The court erred in dismissing Appellee Roses Roses in CI 19-9618 because it is reasonable that her attorney Michael Decker gave Appellee Roses Roses notice of the complaint when he filed the motion to dismiss on behalf of Appellee Andrea Tate on February 25, 2020; 53) The court erred in dismissing Appellee Roses Roses in CI 19-9618 because it is reasonable that Appellee Andrea Tate gave Appellee Roses Roses notice of the complaint before February 25, 2020; 54) The court erred in dismissing Appellee Roses Roses in CI 19-9618 because it is reasonable that the person who signed for the complaint CI 19-9618 Coranna Thompson gave Appellee Roses Roses the complaint at the same time she gave Appellee Andrea Tate sometime before February 25, 2020; 55) The court erred in dismissing Appellee Roses Roses in CI 19-9618 because it is reasonable that Appellee Andrea Tate gave Appellee Roses Roses notice of the complaint before February 25, 2020; 56) The court erred in dismissing Appellee Roses Roses in CI 19-9618 based upon the multiple publication rule; 57) The court erred in dismissing the civil extortion statute because parents who are not an attorney may not represent others in legal proceedings, nor may such a person practice law for others; 58) The court erred by granting the Appellee’s motion for summary judgment because publication of slander occurs when the words are spoken to and understood by a third party to pertain to the individual slandered; 59) The court erred in dismissing the civil extortion claim; 60) The court erred in dismissing the Intentional Infliction of Emotional Distress Claim; 61) The court erred in dismissing the Motion to Compel, Libel, False Light, Defamation and Defamation and granting Appellee’s Motion for Summary Judgment; 62) The court erred in denying the Defendant’s Motion for Default Judgment against defendant Roses Roses; 63) The court erred in denying the civil extortion claim against Appellee Andrea Tate and Appellee Roses Roses; 64) The court erred in dismissing the civil extortion claim because the letter was illegal as a matter of law and thus unprotected by the litigation privilege; 65) The court erred in denying the Appellant’s Motion for Default Judgment against Roses Roses; 66) The court erred in denying the Appellant’s Motion for Default Judgment against Andrea Tate; 67) The court erred in denying the Appellant’s Motion to Compel against Roses Roses; 68) The court erred in denying the Appellant’s Motion to Compel against Andrea Tate; 69) The court erred in granting the Appellee’s Motion for Summary Judgment when the Appellant had a Motion to Compel Discovery filed against Appellee Roses Roses; 70) The court erred in granting the Appellee’s Motion for Summary Judgment when the Appellant had a Motion to Compel Discovery filed against Appellee Andrea Tate; 71) The court erred in dismissing Roses Roses because it is reasonable to believe that her attorney Michael Decker knew the identity of Appellee Roses Roses when he filed the motion to xix dismiss on behalf of his client Appellee Andrea Tate and Appellee was served with the lawsuit at the same time Appellee Andrea Tate was served; 72) The court erred in dismissing Roses Roses her attorney Michael Decker had notice of the complaint on February 25, 2020, and he did not file an answer or a motion to file an answer out of time in CI 19-9618; 73) The court erred in granting the summary judgment for Appellee Andrea Tate’s based upon the affidavit and the denial which was offered in which without reasonable explanation she testified to facts materially different concerning a vital issue of posting the internet review, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded, and in applying this rule, the important considerations are that the testimony pertains to a vital point, that it is clearly apparent Appellee Andrea Tate has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony; 74) The court erred in granting the summary judgment for Appellee Andrea Tate because where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded; the important considerations are that the testimony pertains to a vital point, that it is clearly apparent the party has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony; 75) Where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded, and in applying this rule, the important considerations are that the testimony pertains to a vital point, that it is clearly apparent the party has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony; 76) The court erred in failing to discredit the information upon which Appellee Andrea Tate changed her testimony from providing reviews and comments to all relevant sites on December 13, 2018, to a denial of posting an internet review on 3/20/19; 77) The court erred in granting the summary judgment for Andrea Tate based upon her self-serving denial in which Andrea Tate denies posting the internet review and this contradicted Andrea Tate’s December 13, 2018, letter which stated Andrea Tate would file an internet review; 78) The court erred in granting summary judgment for Appellee Andrea Tate because the law discredits her affidavit or denial based upon the fact that she changed her position from she was sending a review to all relevant sites to after she was confronted with the lawsuit she changed her position to a denial; 79) The court erred in granting the summary judgment for Appellee Andrea Tate’s based upon the affidavit or a denial which was offered without reasonable explanation after she testified to facts materially different concerning a vital issue of posting the internet review, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded, and in applying this rule, the important considerations are that the testimony pertains to a vital point, that it is clearly apparent Appellee Andrea Tate has made the change from she was posting an internet review on December 13, 2018, to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony; 80) The court erred in failing to discredit the information upon which Appellee changed her testimony from providing reviews and comments to all relevant sites on December 13, 2018, to a denial of posting an internet review on 3/20/19; 81) The court erred in granting the summary judgment because where a party, without reasonable explanation, changes his testimony concerning the material facts on a vital issue, such change clearly being made to meet the exigencies of pending litigation, the testimony is discredited as a matter of law and should be disregarded; 82) The court erred in granting the summary judgment for Appellee Andrea Tate because where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded; the important considerations are that the testimony pertains to a vital point, that it is clearly apparent the party has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony; 83) Where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded, and in applying this rule, the important considerations are that the testimony pertains to a vital point, that it is clearly apparent the party has made the change to meet the exigencies of the pending xxii case, and that there is no rational or sufficient explanation for the change in testimony; 84) The court erred in granting the summary judgment for Andrea Tate based upon her self-serving affidavit and denial in which Andrea Tate alleged she did not discuss the internet review with Roses Roses and this contradicted Andrea Tate’s letter which stated Andrea Tate would file an internet review; 85) The court erred in granting judgment for Appellee Andrea Tate because the law discredits her affidavit and denial based upon the fact that she changed her position from she was sending a review to all relevant sites on December 13, 2018, to after she was confronted with the lawsuit she denied posting the review; 86) The court erred in granting the summary judgment for Appellee Andrea Tate’ where a party without reasonable explanation where a party without reasonable explanation testifies to facts materially different concerning a vital issue, the change clearly being made to meet the exigencies of pending litigation, such evidence is discredited as a matter of law and should be disregarded; the important considerations are that the testimony pertains to a vital point, that it is clearly apparent the party has made the change to meet the exigencies of the pending case, and that there is no rational or sufficient explanation for the change in testimony; 87) The court erred in failing to discredit the information upon which Appellee changed her testimony from providing reviews and comments to all relevant sites on December 13, 2018, to a denial of posting an internet review on 3/20/19; 88) A claim for damages caused by a continuing tort can be maintained for injuries caused by conduct occurring within the statutory limitations period. When there are continuing or repeated wrongs that are capable of being terminated, a claim accrues every day the wrong continues or xxiii each time it is repeated, the result being that a plaintiff is only barred from recovering damages that were ascertainable prior to the statutory period preceding the lawsuit; 89) The court erred in granting the motion for summary judgment on the issue of the defamation based upon the single publication of the internet posting because the statute of limitations in a libel action commences to run upon publication of the defamatory matter upon which the action is based; 90) The court erred in granting the motion for summary judgment because the cause of action for libel or slander accrues on the date of publication of the defamatory matter; 91) The court erred in granting the motion for summary judgment because publication of an allegedly libelous statement occurs when it is communicated to someone other than the person defamed; 92) The court erred in granting the motion for summary judgment because publication of slander occurs when the words are spoken to and understood by a third party to pertain to the individual slandered; 93) The court erred in granting the motion for summary judgment because statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous; 94)The court erred in granting the motion for summary judgment because it is not within the province of courts to read meaning into a statute that is not there, or to read anything direct and plain out of a statute; 95) The court erred in granting the motion for summary judgment because the statute of limitations in a libel action commences to run upon publication of the defamatory matter upon which action is based; 96) The court erred in granting the motion for summary judgment because a claim for damages caused by a continuing tort can be maintained for injuries caused by conduct occurring within the statutory limitations period when there are continuing or repeated wrongs that are capable of being terminated, a claim accrues every day the wrong continues or each time it is repeated, the result being that a plaintiff is only barred from recovering damages that were ascertainable prior to the statutory period preceding the lawsuit; 97) The court erred in granting the motion for summary judgment because to apply the discovery rule under such circumstances would be to issue a tortfeasor an "open-ended license" to continue engaging in tortious conduct and if we were to apply the discovery rule as the court suggests, once the statute of limitations elapsed after the discovery of a potential claim, the tortfeasor would be free to continue behaving tortiously, without consequence because it is one thing to enforce a statute of limitations against an otherwise valid claim, but it would be quite another to allow a tortfeasor to continue injuring a plaintiff without compensation; 98) The court erred in granting the motion for summary judgment because one court has embraced the multiple publication rule in which the statute of limitation runs from the date the user accesses the report which in this case is the date of publication as seen by one of the Google customers.