THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IRWIN, Judge.
I. INTRODUCTION
Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument. Robert J. Prokop appeals from orders of the district court for Lancaster County, Nebraska, granting summary judgment in favor of James McClurg in this libel action and awarding $15,000 attorney fees in favor of McClurg upon a finding that Prokop's action was frivolous and brought in bad faith. Prokop has not assigned any errors on appeal, has not complied with court rules concerning briefing, and has demonstrated no plain error committed by the district court. We affirm.
II. background
The events giving rise to this lawsuit occurred during the 2006 election, when Prokop and McClurg were opposing candidates for a seat on the University of Nebraska Board of Regents; McClurg was the incumbent candidate and Prokop was a former member of the Board. During that election, Prokop circulated a flier criticizing McClurg for not acting more aggressively regarding financial irregularities relating to inappropriate use of expense accounts by administrators at the University of Nebraska-Omaha. The flier included a statement that "[i]ntegrity and credibility are lost arts . . . when it comes to [McClurg] and his fellow Regents."
McClurg viewed the challenges to his integrity as unfair, and McClurg was aware of controversies centering on Prokop during Prokop's tenure on the Board of Regents in the 1970's and early 1980's. McClurg contacted a reporter from the Omaha World-Herald and provided to him photocopies of newspaper articles concerning Prokop and his tenure on the Board of Regents. In addition, McClurg read the following statement to the reporter: "Integrity of leaders is important. My opponent's record as a Regent clearly indicates questionable integrity around publicly reported issues of plagiarism and inappropriate use of Regents expense accounts. I pass the integrity test, and given my opponent's record, I don't think he does."
On October 26, 2006, the Omaha World-Herald published an article about McClurg and Prokop and the contested race for the Board of Regents. The article noted that Prokop had circulated a campaign flier challenging McClurg and that "McClurg responded by noting that Prokop, when he was a regent in the 1970s and 1980s, faced allegations of plagiarism and allegations that he had used university phones to make personal long-distance calls." The article also quoted McClurg's statement that "I pass the integrity test, and given my opponent's record, I don't think he does." The article also noted that during Prokop's tenure on the Board of Regents, he had been criticized by the University of Nebraska-Lincoln Faculty Senate and student government for allegedly plagiarizing parts of a 1956 book on homosexuality in a newspaper article and that Prokop was investigated by the Board of Regents in 1982 for charges that he had used university telephones to place approximately 250 personal long-distance telephone calls to relatives, medical associates, and others.
On November 26, 2007, Prokop filed a complaint in the district court. Prokop alleged that McClurg "falsely, maliciously, and illegally stated and had published in the Omaha World Herald [statements] attacking [Prokop's] integrity with accusations which were false, maligning, malicious, and defamatory concerning false statements made about personal phone calls made on state funds, and plagarism [sic]." Prokop alleged that McClurg made the statements "knowing they were not true, with the intent to injure [Prokop]." Prokop also alleged that "[t]he charges in this article against [Prokop] are false." Prokop requested general damages of $500,000; special damages of $200,000; punitive damages; costs of suit; and such other relief deemed just and proper by the court.
On May 8, 2009, Prokop filed a motion in limine seeking to exclude from evidence "[a]ny material published in . . . any Mid-western publication making references to [Prokop] regarding or concerning publication plagarism [sic] charges, University of Nebraska Board of Regents telephone useage [sic], or personal references to [Prokop] as a member of the Board of Regents from 1971-1983, including deposition [sic] taken by Prokop."
On March 23, 2010, McClurg filed a motion for summary judgment. On June 9, McClurg filed a motion seeking attorney fees and alleging that Prokop's suit was frivolous and brought in bad faith. On June 10, the district court conducted a hearing on the motion for summary judgment. McClurg presented affidavits and depositions in support of his motion, while Prokop presented no evidence in opposition. On July 23, the court conducted a hearing on the motion for attorney fees. McClurg presented evidence to support the attorney fees being requested; Prokop did not appear at the hearing.
On August 8, 2010, the district court entered an order granting summary judgment to McClurg. In a thorough and well-reasoned order, the court recounted the factual background of the case; recounted that the relevant guiding law for libel cases brought concerning statements made in the course of a public campaign for elective office is set forth in a prior case involving Prokop, Hoch v. Prokop, 244 Neb. 443, 507 N.W.2d 626 (1993); and concluded that McClurg had established a prima facie case that Prokop was entitled to no relief. The court concluded that the only statement directly attributed to McClurg and acknowledged by McClurg to have been made by him was one of opinion that he passed the integrity test and did not believe Prokop did. The court concluded that there were other statements in the newspaper article arguably attributed to McClurg, but that they were not false statements. The evidence adduced by McClurg, including a deposition of Prokop, established that Prokop did face allegations of plagiarism and was investigated for allegedly improperly using state telephones during his tenure on the Board of Regents. The statements that Prokop was so accused, not being false, could not have been made with knowledge of falsity. Because McClurg satisfied his burden to present a prima facie case that Prokop was entitled to no relief and Prokop presented nothing to rebut that prima facie case, the court granted summary judgment in favor of McClurg.
Also on August 18, 2010, the district court entered an order awarding attorney fees to McClurg. The court noted statutory authority for awarding attorney fees upon a finding that an action was frivolous or brought in bad faith, noted statutory authority setting forth the relevant factors to be considered in such an award, and noted statutory authority requiring more conservative action when imposing attorney fees against pro se litigants. The court concluded that the evidence adduced by McClurg established that Prokop knew that he did not have a factual or legal basis for bringing the action when it was filed and that Prokop had no basis for the damages he sought in his complaint. As such, the court awarded attorney fees of $15,000. This appeal followed.
III. ASSIGNMENTS OF ERROR
Prokop's brief contains no assignments of error.
IV. ANALYSIS
The brief presented by Prokop in this appeal fails to conform to a number of the Nebraska Supreme Court's rules governing briefs. Prokop was specifically apprised of noncompliance with some of these rules after filing his initial brief, and the replacement brief continues to not comply. In addition, Prokop's failure to assign any errors on appeal runs afoul of well-established law in this jurisdiction mandating the separate assignment and argument of errors. As a result, we are left to review the case for plain error, and finding none, we affirm.
Prokop first filed his brief on appeal on December 28, 2010. On January 3, 2011, this court entered a minute entry and advised Prokop that his brief did not comply with Neb. Ct. R. App. P. §§ 2-109(B)(2), 2-109(D)(1)(d), 2-109(D)(1)(g), and 2-109(D)(1)(h). Prokop was given until January 18 to file a replacement brief complying with court rules.
On January 18, 2011, Prokop filed a replacement brief. The replacement brief continues to violate Neb. Ct. R. App. P. § 2-109(D)(1)(d), which requires a statement of the case and requires that the statement of the case include specific information, in the order provided in the rule; although the brief contains a section labeled "Statement of the Case," that section appears to more properly be considered the factual background and does not include all of the information required by the court rule for a statement of the case. The replacement brief continues to violate § 2-109(D)(1)(g), which requires statements of fact to be annotated to the record; despite containing a section of the brief devoted to setting forth the factual background of the case and containing statements of fact throughout the section of the brief devoted to argument, the brief does not contain a single annotation to where any of the facts alleged can be found in the record. The replacement brief continues to violate § 2-109(D)(1)(h), which requires, under appropriate headings, a summary of the argument containing a succinct, clear, and accurate statement of the arguments made in the body of the brief; nothing approximating a summary of the argument appears anywhere in the brief.
While Prokop's failure to abide by the above-referenced court rules concerning the preparation of his brief, despite specific notice from this court concerning a number of rule violations present in his original brief, is both troublesome and makes appellate review more cumbersome than necessary, it is Prokop's failure to abide by Neb. Ct. R. App. P. § 2-109(D)(1)(e) that is of most consequence. Section 2-109(D)(1)(e) requires an appealing party to include in his or her brief "[a] separate, concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error." The rule specifies, in plain English, that "[e]ach assignment of error shall be separately numbered and paragraphed, bearing in mind that consideration of the case will be limited to errors assigned and discussed." Indeed, it is well established in Nebraska cases that an appellate court will consider only those errors that are both specifically assigned and specifically argued. See State v. Meduna, 18 Neb.App. 818, 794 N.W.2d 160 (2011) (failure to specifically assign error argued in brief is insufficient).
In the present case, Prokop has failed to assign any errors on appeal and has failed to present anything in his brief that could reasonably be construed as complying with the requirements of Neb. Ct. R. App. P. § 2-109(D)(1)(e). Section 2-109(D)(1)(e) and Nebraska precedent clearly establish that appellate review is limited to those issues presented in compliance with the court rules concerning presentation of assignments of error. Absent any proper assignments of error, our review is limited to reviewing the case for plain error. See § 2-109(D)(1)(e) (noting that appellate court may note plain error).
We have reviewed the pleadings and the record presented in this case, and we find no plain error. The record presented provides no basis whatsoever for finding any error in the district court's orders granting summary judgment and awarding attorney fees for the frivolity and bad faith of this suit. The newspaper article which provided the basis for Prokop's initial complaint includes no statements by McClurg that are not either opinion or true, and there is no evidence apparent anywhere in the record to suggest that any statements by McClurg were false, let alone both false and made maliciously with knowledge of falsity. Ironically, the relevant law guiding the district court's proper resolution of the merits of this case is clearly set forth in Hoch v. Prokop, supra, another public libel case arising out of a contested election for a position on the Board of Regents and one in which Prokop was actually the defendant. Finding no plain error, we affirm.
AFFIRMED.
