Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist. , 298 Neb. 777 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
Facilities Cost M anagement Group, LLC, appellant, v.
Otoe County School District 66-0111, also known
as Nebraska City P ublic Schools, appellee.
___ N.W.2d ___
Filed January 26, 2018. No. S-16-1193.
1. Juries: Verdicts. A jury, by its general verdict, pronounces upon all or
any of the issues either in favor of the plaintiff or the defendant.
2. Juries: Verdicts: Presumptions. Because a general verdict does not
specify the basis for an award, Nebraska law presumes that the winning
party prevailed on all issues presented to the jury.
3. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
4. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
5. Trial: Courts: Juries: Attorneys at Law: Notice: Appeal and Error.
In Nebraska, the failure of the court to notify counsel of a jury’s ques-
tion is reversible error only if prejudice results.
6. Rules of Evidence: Juries. Pursuant to Neb. Rev. Stat. § 27-606(2)
(Reissue 2016), juror affidavits cannot be used for the purpose of show-
ing a juror was confused, as that would relate directly to the juror’s
mental processes in rendering the verdict.
7. Pretrial Procedure: Appeal and Error. A trial court’s ruling on a
discovery sanction will not be disturbed on appeal absent an abuse
of discretion.
8. Pretrial Procedure. The determination of an appropriate discovery
sanction is to be considered in the factual context of the particular case.
9. Rules of the Supreme Court: Pretrial Procedure: Expert Witnesses.
The Nebraska Court Rules of Discovery in Civil Cases allow a party to
discover facts known and opinions held by opposing experts.
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
10. ____: ____: ____. A party may, through interrogatories, require the
other party to identify each person intended to be called as an expert
witness, disclose the subject matter on which the expert is expected to
testify, and state the substance of the facts and opinions to which the
expert is expected to testify.
11. ____: ____: ____. Generally, a party who has responded to a discovery
request with a response that was complete when made is under no duty
to supplement the response. However, a party has a duty to seasonably
supplement its discovery response with respect to any question directly
addressed to the identity of experts expected to be called at trial, the
subject matter on which the expert is expected to testify, and the sub-
stance of the expert’s testimony.
12. Pretrial Procedure: Expert Witnesses. When determining what dis-
covery sanction is appropriate, a trial court should consider the explana-
tion for the failure to comply, the importance of the expert’s testimony,
the surprise to the opposing party, any time needed to prepare to meet
the testimony from the expert, and the possibility of a continuance.
13. Judgments: Verdicts: Directed Verdict. A motion for judgment not-
withstanding the verdict may be granted when the movant’s previous
motion for directed verdict, made at the conclusion of all the evidence,
should have been sustained.
14. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
ing the verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds can draw
but one conclusion.
15. ____: ____. On a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the relevant evi-
dence admitted that is favorable to the party against whom the motion
is directed, and, further, the party against whom the motion is directed
is entitled to the benefit of all proper inferences deducible from the rel-
evant evidence.
16. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial for an abuse of discretion.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
John A. Svoboda and Adam J. Wachal, of Gross & Welch,
P.C., L.L.O., for appellant.
Larry E. Welch, Jr., Damien J. Wright, and Larry E. Welch,
Sr., of Welch Law Firm, P.C., for appellee.
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
Funke, JJ.
Stacy, J.
This case, which is before us for a second time, involves a
dispute over amounts owed under a contract between Facilities
Cost Management Group (FCMG) and Otoe County School
District 66-0111, also known as Nebraska City Public Schools
(the School District). In the first appeal, we found the jury had
been given an erroneous instruction and we reversed a verdict
in favor of FCMG and remanded the cause for a new trial.1
On retrial, the jury returned a verdict in favor of the School
District. FCMG appeals, assigning error to the admission and
exclusion of certain evidence, to the jury instructions, and to
the court’s ruling on posttrial motions. Finding no reversible
error, we affirm.
I. FACTS
1. General Background
In 2008, FCMG entered into a contract with the School
District to perform certain architectural, owner representative,
and project management services related to a large construction
project undertaken by the School District. The project spanned
almost 5 years. During that time, a dispute arose over amounts
due FCMG under the contract.
FCMG ultimately filed a breach of contract action against
the School District. After a jury trial, FCMG was awarded
approximately $1.9 million in damages. The School District
appealed, and we reversed, and remanded for a new trial after
finding the trial court had improperly instructed the jury that
§ 11.2 of the parties’ contract was unambiguous.2
The case was then retried. The second jury trial generally
focused on two issues. The first was how FCMG’s fees were
1
Facilities Cost Mgmnt. Group v. Otoe Cty. Sch. Dist., 291 Neb. 642, 868
N.W.2d 67 (2015).
2
Id.
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
to be calculated under the contractual provision we found was
ambiguous, § 11.2, which provided in part:
These fees and costs are intended to be converted to Lump
Sum amounts with the initial approval by the Owner and
Architect of the Project Scope, Budget, and concept to be
advanced for funding. Lump Sum amounts and inclusions
shall remain effective for the duration of the Project(s),
except in the event of approved changes in the scope of
work or alternatives to be bid adding two percent or more
to the scope. In such event the Lump Sum fees and costs
shall be increased proportionately to reflect the full per-
centage of changes.
The second issue was the School District’s affirmative
defenses. The School District asserted that FCMG fraudulently
induced it into entering the contract by representing that the
contract contained a guaranteed maximum price. In this regard,
the School District claimed FCMG led it to believe that once
the School District approved the initial scope and budget,
FCMG would manage the project to that fixed budget, and
that project costs would not change unless the School District
approved scope changes or selected alternative construction
options. The School District also alleged as an affirmative
defense that FCMG misrepresented the fees it intended to
charge and that the School District entered into the contract in
reliance on that misrepresentation.
2. Precontract Negotiations
In 2006, the School District decided to construct a new
grade school and make significant renovations to its existing
grade school and high school. Merle Rambo, the sole share-
holder, director, and officer of FCMG, submitted a proposal
for the project to the School District. The proposal empha-
sized that FCMG was not a traditional architectural firm,
but instead would serve as the project’s architect, owner’s
representative, and manager. It stated that because of this,
FCMG had the “unique ability” to “offer guaranteed maxi-
mum cost options.”
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
After Rambo presented his proposal, the School District sub-
mitted various questions to him. One question asked whether
there was a “guaranteed maximum price for the project,” and
Rambo responded, “Yes,” followed by an explanation. Another
question asked what happened if the bids came in over the
budget, and Rambo responded FCMG would match the bids
to the budget. The School District also asked whether the
fees FCMG showed in the proposal were “all inclusive,” and
Rambo responded the “costs are all inclusive, incorporating
construction, equipment, site development and related project
management expenses.”
The School District decided to hire FCMG, and Rambo sent
a standard form agreement for architectural services to Thomas
Farrell, the School District’s representative. The parties cus-
tomized certain parts of the standard form agreement, including
the fee agreement in § 11.2.
Rambo signed the customized contract on July 18, 2007.
Farrell did not sign until August 9. During the interim, Farrell
asked Rambo questions regarding § 5.2.2 of the contract,
which stated that “[n]o fixed limit of Construction Cost shall
be established as a condition of this Agreement . . . .” Farrell
thought this was inconsistent with FCMG’s responsibility, as
outlined in its proposal, to perform as the owner’s representa-
tive and project manager and to manage the project to a fixed
budget. To address these concerns, the parties added § 12.7 to
the contract. This section states that FCMG’s earlier proposal
was attached “for general reference purposes.” Farrell testified
that by doing this, he thought the parties were incorporating a
guaranteed maximum price into the contract. He further testi-
fied that he would not have signed the contract if a guaranteed
maximum price was not part of the deal.
Farrell also discussed fees with Rambo prior to signing the
contract. Farrell was confused because there was a fee schedule
in § 11.2, but other sections of the contract referenced “OR/
PM” or “Owner Representative/Project Management” fees.
According to Farrell, Rambo told him the final fees would be
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
approximately 11 percent of the project budget, plus reimburs-
ables. Farrell testified that he would not have signed the con-
tract had he known this was not the fee agreement.
At trial, Rambo acknowledged telling Farrell the fees would
be 10 to 12 percent, but explained he thought Farrell was ask-
ing about only architectural fees, and not owner representative
or project management fees. Rambo also explained that the fee
rates in his proposal covered only architectural fees and did not
cover owner representative or project manager fees.
3. A pproval of Project Scope
In January 2008, Rambo prepared a project budget and pre-
sented it to the School District at a school board meeting. The
budget was presented in the form of a grid, which showed the
costs for the project broken down into categories such as site
and construction, equipment, professional services, and con-
nection systems. The parties generally agree that this was the
point where FCMG’s fees were to be converted into a “Lump
Sum” pursuant to § 11.2 of the contract.
The January 2008 budget grid showed a project cost of
$24.6 million. During Rambo’s presentation, the School
District asked him to identify the lump-sum fee in the grid.
He indicated the fee was shown in the category titled “profes-
sional services” in the amount of $1,944,000. At trial, Rambo
testified that this answer referred only to his architectural fees,
as that is what he thought the School District was referencing.
Rambo prepared a trial exhibit showing that in aggregate, the
2008 budget grid actually showed fees, in various categories,
in the amount of $3,824,000. Trial testimony established, how-
ever, that at least some of these fees were not ascertainable by
the School District at the time the budget grid was presented
in January.
4. A dditions to Project Scope
In August 2008, Rambo presented the School District a
list of alternatives to consider for the construction projects.
Each alternative was presented with a corresponding cost. The
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
School District understood the costs associated with the alter-
natives were “the cost that would be incurred to the overall
Project”3 if selected. The School District approved the alterna-
tives with associated costs listed by Rambo of $1.4 million.
The School District understood this should have increased the
project budget from $24.6 million to $26 million.
In May 2009, FCMG emailed the School District a revised
budget. This budget showed total project costs of $27.5 mil-
lion. The School District asked why the budget was shown
as $27.5 million, when it understood it was now $26 million.
FCMG responded with a one-page memorandum attempting to
explain several scope increases. The School District also asked
Rambo to explain how his fees were being calculated, but he
did not respond.
FCMG presented evidence that the School District approved
and added over $4.8 million in scope changes to the projects.
The School District presented evidence that it added only
approximately $2.9 million in scope changes.
5. Expert Testimony
(a) Robert Mabrey
Both parties presented expert testimony on how FCMG’s
fees should be calculated under the provisions of § 11.2 of
the contract. Robert Mabrey, an architect who testified for
the School District, explained how to calculate FCMG’s “pro-
portionate” adjustment of fees under § 11.2. Mabrey testified
that the calculation required determining the proportionate
relationship between fees and construction costs at the time
the original lump sum was agreed upon, and then applying
that percentage to determine FCMG’s fees for increases in the
scope of construction. As a hypothetical example, if the initial
approved construction costs were $20 million, and the initial
lump-sum fee was $2 million, then FCMG would be entitled
to an additional fee of 10 percent of the cost of any approved
scope increases or selected alternatives.
3
Brief for appellee at 15.
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
Mabrey then looked to the January 2008 budget grid to
determine the lump sum. He found it included construction
costs of $ 19.9 million. Mabrey acknowledged the parties did
not agree on what that budget grid included for FCMG’s fees;
FCMG argued the budget grid showed approximately $3.8 mil-
lion in fees, while the School District contended it showed only
$1.9 million in fees. Because of this dispute, Mabrey prepared
two calculations of the proportional difference—one based
on FCMG’s fee numbers and the other based on the School
District’s fee numbers.
Using FCMG’s assertion that the budget grid included fees
of $3.8 million, Mabrey concluded that was 19.23 percent of
the construction cost of $19.9 million. He then applied this
percentage to the additional construction costs incurred during
the course of the project, which he calculated at $2.9 million.
This computation resulted in Mabrey’s finding that FCMG
would be entitled to an additional fee of $562,302. In sum,
FCMG’s fees would be the $3.8 million plus $562,302, for
a total of approximately $4.3 million. It was undisputed that
FCMG previously had been paid $3,661,127 in fees, so accord-
ing to Mabrey, the amount due using that computation would
be $725,195.
Mabrey also did the computation using the School District’s
assertion that the budget grid lump-sum fee amount was
$1.9 million, not $3.8 million. Under that scenario, the per-
centage of fees to construction costs was 12.65, and applying
that percentage to the $2.9 million in scope changes resulted
in increased fees of $369,974. This computation resulted in
Mabrey’s finding that FCMG was entitled to total fees of
approximately $2.8 million. Because FCMG already had been
paid an amount in excess of $2.8 million, no fees remained due
under this scenario.
(b) Robert Kirchner
Robert Kirchner testified as an expert for FCMG. Kirchner is
a forensic accountant with a background in banking, account-
ing, and finance. Before trial, the School District moved in
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
limine to limit Kirchner’s testimony to how FCMG calculated
its fees, arguing that he was not qualified by either his edu-
cation, training, or experience to offer any opinion about the
meaning or interpretation of the contract provisions at issue,
or whether the fees charged by FCMG were consistent with
the terms of the contract. The district court overruled the
motion in limine.
At trial, Kirchner testified he had reviewed the invoices
FCMG sent to the School District and he explained how
FCMG’s fees were actually calculated in those invoices.
However, the district court sustained the School District’s
objections to Kirchner’s testimony on how FCMG’s fees
should be calculated under the terms of the contract or whether
FCMG’s method was consistent with the contract. The court
generally reasoned that Kirchner was not qualified as an expert
to give such opinions.
(c) Michael Purdy
Michael Purdy is an architect who provided services on the
project for FCMG. Before the first trial, he was disclosed as an
expert witness for FCMG. The disclosure stated Purdy would
offer opinions “about any and all aspects of the project, includ-
ing, but not limited to the scope of the project and changes
thereto and to the fees charged.”
At the first trial, Purdy testified about scope changes to the
project, but did not offer an opinion about how fees were to be
calculated under the contract. When the cause was remanded
for retrial, FCMG did not supplement the expert disclosure for
Purdy or otherwise indicate his testimony at the second trial
would differ from that offered previously.
At the second trial, Purdy again testified about scope
changes to the project. In addition, FCMG attempted to elicit
opinion testimony from Purdy regarding how the contract
should be interpreted in calculating fees due to FCMG. The
School District objected to these questions, and the trial court
sustained the objections, finding such testimony was outside
the scope of the expert disclosure.
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
Cite as 298 Neb. 777
6. Jury Instructions
The jury was instructed that § 11.2 of the contract was
ambiguous as to the phrase “‘scope of work’” and that the jury
must determine “which of two or more meanings represents
the true intentions of the parties. It is for you to determine the
intent of the parties from all the facts and circumstances.” The
jury was further instructed:
B. Burden of Proof
Before [FCMG] can recover against the [School
District] on its claim for breach of contract, FCMG must
prove, by the greater weight of the evidence, each and all
of the following:
1. The terms of the written contract, including the
meaning of Section 11.2;
2. That [FCMG] substantially performed its part of
the contract;
3. That [the School District] breached the contract by
failing to pay fees for services provided by FCMG pursu-
ant to the contract;
4. That the breach of contract was a proximate cause of
some damage to FCMG; and
5. The nature and extent of that damage.
C. Effect of Findings
If [FCMG] has not met this burden of proof, then your
verdict must be for the [School District].
On the other hand, if [FCMG] has met its burden of
proof, then you must consider the [School District’s]
affirmative defenses that [FCMG] fraudulently induced
the [School District] to enter into the contract and/or
materially misrepresented the full scope of services it
would provide and/or the amount of fees it would charge
pursuant to the contract and the manner in which said fees
would be calculated.
The jury was given two verdict forms. Verdict form No.
1 provided: “We, the jury, find[s] that [FCMG] is enti-
tled to damages from the [School District] on its breach
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FACILITIES COST MGMT. GROUP v. OTOE CTY. SCH. DIST.
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of contract claim and awards to [FCMG] damages in the
amount of $ ________________.” Verdict form No. 2 pro-
vided: “We, the jury, finds in favor of the [School District] and
against [FCMG].”
After deliberations began, the jury submitted the following
question to the court concerning FCMG’s burden of proof on
the breach of contract claim:
Regarding Section B of Instruction 2 if the required
10/12 majority of jurors do not find [FCMG] met [its]
burden of proof, must 10/12 then agree [FCMG] has
not met the burden of proof to rule for the [School
District]?
In other words, do 10 jurors have to agree that the
burden of proof was not met by FCMG to rule in favor
of [the School District], or do we rule for the [School
District] since 10/12 jurors cannot say FCMG has met
[its] burden?
The court, without notifying counsel, replied: “You must refer
to and follow the jury instructions.”
Later, the jury submitted a second question to the court:
“If at least 10 of our jury members cannot find in favor of
[FCMG’s] burden of proof being met, shall we rule for the
[School District]?” The Court replied: “You have deliberated
for more than six hours; therefore ten or eleven of you can
reach a verdict.” Before beginning deliberation, the jury had
been instructed: “A verdict reached during the first six hours
of your deliberation must be agreed to by all of you, that is, it
must be unanimous. After six hours of deliberation, you may
reach a verdict agreed to by ten or eleven of you.” The jury
subsequently returned verdict form No. 2, signed by 10 jurors,
finding in favor of the School District.
7. Posttrial Motions
FCMG timely moved for judgment notwithstanding the ver-
dict or alternatively for a new trial. Both motions were denied,
and FCMG timely filed this appeal.
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II. ASSIGNMENTS OF ERROR
FCMG assigns, restated, renumbered, and consolidated,
that the trial court erred in (1) allowing the School District
to put on evidence of a material misrepresentation and a
fraudulent misrepresentation and instructing the jury on these
defenses; (2) failing to instruct jurors that they could award
FCMG damages, even if the School District prevailed on an
affirmative defense; (3) improperly responding to jury ques-
tions without contacting counsel; (4) excluding Purdy’s testi-
mony about the fee calculation; (5) preventing Kirchner from
testifying about the meaning of the contract; (6) excluding
evidence of prejudgment interest; and (7) denying the post-
trial motions.
III. ANALYSIS
[1,2] Much of our analysis in this case is shaped by the gen-
eral verdict the jury returned in favor of the School District. A
jury, by its general verdict, pronounces upon all or any of the
issues either in favor of the plaintiff or the defendant.4 Because
a general verdict does not specify the basis for an award,
Nebraska law presumes that the winning party prevailed on all
issues presented to the jury.5
Applying the general verdict rule here, we presume the jury
found in the School District’s favor on all issues submitted,
including whether the contract was breached and how § 11.2 of
the contract was to be interpreted. Within this framework, we
examine FCMG’s assignments of error.
1. A ffirmative Defenses
[3,4] FCMG assigns that the trial court erred in allowing the
School District to put on evidence of its affirmative defenses
and erred in instructing the jury on the School District’s
4
Heckman v. Burlington Northern Santa Fe Ry. Co., 286 Neb. 453, 837
N.W.2d 532 (2013); Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248
(2013).
5
Id. See, also, Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).
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affirm­ative defenses. In a civil case, the admission or exclusion
of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.6 In an appeal based
on a claim of an erroneous jury instruction, the appellant has
the burden to show that the questioned instruction was preju-
dicial or otherwise adversely affected a substantial right of
the appellant.7
Here, the jury was instructed to consider the School District’s
affirmative defenses only if it found FCMG had met its burden
of proof on the breach of contract claim. Under the general
verdict rule, we presume the jury determined the breach of
contract issue in favor of the School District. Thus, the jury
never reached the question of the School District’s affirma-
tive defenses, and any alleged error in admitting evidence
or instructing the jury on those affirmative defenses would
necessarily be harmless.8 FCMG’s assignments relating to the
School District’s affirmative defenses cannot form the basis for
reversible error.
2. Questions From Jury
The jury submitted two questions to the court during delib-
erations. The court responded to both questions without con-
tacting counsel. FCMG argues this procedure did not com-
ply with Neb. Rev. Stat. § 25-1116 (Reissue 2016), which
provides:
After the jury [members] have retired for deliberation,
if there be a disagreement between them as to any part of
the testimony, or if they desire to be informed as to any
part of the law arising in the case, they may request the
officer to conduct them to the court where the information
6
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015); Arens v.
NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
7
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012);
Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007).
8
See Scheele v. Rains, 292 Neb. 974, 874 N.W.2d 867 (2016).
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upon the point of law shall be given, and the court may
give its recollection as to the testimony on the point in
dispute in the presence of or after notice to the parties or
their counsel.
[5] FCMG is correct that the procedure utilized by the
court did not comply with § 25-1116. However, in Nebraska,
the failure of the court to notify counsel of a jury’s question
is reversible error only if prejudice results.9 FCMG contends
the jury’s questions illustrate it was confused about whether
damages could be awarded to FCMG if the jury found the
School District had proved “one or both of its”10 affirmative
defenses. FCMG does not explain, however, why this is so
or how answering the jury’s questions in a different manner
or contacting counsel prior to answering, would have made
any difference.
Nothing about the court’s failure to notify counsel of the
jury’s questions can reasonably be interpreted to result in
prejudice to FCMG. Again, because the general verdict rule
applies, we presume the jury found that FCMG failed to prove
the School District breached the contract. FCMG’s argu-
ment that the court’s answers confused the jury is premised
on the presumption that the jury found a breach and, thus,
is directly contrary to the general verdict rule. A similar fac-
tual situation was present in State v. Owen,11 and there, the
Nebraska Court of Appeals held no prejudice resulted when
the trial court referred the jury back to the instructions with-
out notifying counsel of the jury question. Likewise here, the
court effectively referred the jury back to its instructions in
response to both questions. On this record, we do not find
prejudicial error in the trial court’s responses to the questions
asked by the jury.
9
In re Estate of Corbett, 211 Neb. 335, 318 N.W.2d 720 (1982). See
Brodersen v. Traders Ins. Co., 246 Neb. 688, 523 N.W.2d 24 (1994).
10
Brief for appellant at 27.
11
State v. Owen, 7 Neb. Ct. App. 153, 580 N.W.2d 566 (1998).
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3. Juror A ffidavits
When it moved for a new trial, FCMG submitted the affi-
davits of two jurors, one of whom signed the verdict returned
by the jury and one of whom did not. The affidavits generally
reflected the affiants’ belief that the jury’s two questions were
poorly phrased by the foreperson and that the jury instruc-
tions were confusing regarding the effect of the affirmative
defenses. The affidavits did not state that any extraneous infor-
mation was considered by the jurors or that any outside influ-
ence affected the jury. Over objection, the court received the
juror affidavits, but overruled the motion for new trial.
In its brief on appeal, FCMG relies on the juror affidavits to
support its argument that the jury was confused by the instruc-
tions. The specific argument presented is that the jury did not
think it could award any damages to FCMG if it found for the
School District on one or both of the affirmative defenses.
Again, such an argument is premised on the jury’s finding
the School District breached the contract and then going on to
consider its affirmative defenses. This factual scenario is sim-
ply not supported by the record before us. Moreover, according
to Neb. Rev. Stat. § 27-606(2) (Reissue 2016):
Upon any inquiry into the validity of a verdict or indict-
ment, a juror may not testify as to any matter or state-
ment occurring during the course of the jury’s delibera-
tions or to the effect of anything upon his or any other
juror’s mind or emotions as influencing him to assent to
or dissent from the verdict or indictment or concerning
his mental processes in connection therewith, except that
a juror may testify on the question whether extraneous
prejudicial information was improperly brought to the
jury’s attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may his
affidavit or evidence of any statement by him indicating
an effect of this kind be received for these purposes.
[6] Pursuant to § 27-606(2), juror affidavits cannot be used
for the purpose of showing a juror was confused, as that would
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relate directly to the juror’s mental processes in rendering the
verdict.12 We find no error in denying FCMG’s motion for
new trial.
4. Exclusion of Expert Testimony
FCMG argues it was error to limit the trial testimony of two
of its experts. In a civil case, the admission or exclusion of
evidence is not reversible error unless it unfairly prejudiced a
substantial right of the complaining party.13
(a) Purdy
Purdy testified as an expert for FCMG at the first trial and
again at the second trial. Before the first trial, the School
District served interrogatories on FCMG asking, among other
things, that FCMG identify each expert witness it intended to
call, the subject matter on which the expert would testify, and
the “substance of the facts and opinions” to which each wit-
ness was expected to testify. On July 1, 2013, FCMG answered
the interrogatory and identified Purdy as an expert expected to
testify “about any and all aspects of the project, including, but
not limited to the scope of the project and changes thereto and
to the fees charged.”
Purdy was deposed by the School District before the first
trial. Purdy did not, either in his deposition or at trial, offer
an opinion regarding the interpretation of § 11.2 or how fees
should be calculated under the contract. After § 11.2 was found
on appeal to be ambiguous and the cause was remanded for
retrial, the School District designated Mabrey as its expert who
would testify about how fees should be calculated under the
contract. FCMG disclosed that Kirchner would be its expert on
that issue. FCMG did not supplement its prior expert disclosure
as to Purdy.
Purdy was called to testify at the second trial, and FCMG
attempted to elicit his opinion on how § 11.2 of the contract
12
See State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
13
In re Estate of Clinger, supra note 6; Arens v. NEBCO, Inc., supra note 6.
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should be interpreted and how it related to calculation of fees.
The School District objected to this testimony, arguing it was
outside the scope of the opinions FCMG had disclosed for
Purdy and resulted in unfair surprise. The trial court sustained
the School District’s objection and did not allow Purdy to
testify about his opinion on that issue. FCMG argues this was
an excessive discovery sanction, and suggests the exclusion
of this evidence amounted to prejudicial error and warrants a
new trial.
[7,8] A trial court’s ruling on a discovery sanction will not
be disturbed on appeal absent an abuse of discretion.14 The
determination of the appropriate sanction is to be considered in
the factual context of the particular case.15
[9-11] The Nebraska Court Rules of Discovery in Civil
Cases allow a party to discover facts known and opinions held
by opposing experts.16 A party may, through interrogatories,
require the other party to identify each person intended to
be called as an expert witness, disclose the subject matter on
which the expert is expected to testify, and state the substance
of the facts and opinions to which the expert is expected to
testify.17 Generally, a party who has responded to a discovery
request with a response that was complete when made is under
no duty to supplement the response.18 However, a party has
a duty to seasonably supplement its discovery response with
respect to any question directly addressed to the identity of
experts expected to be called at trial, the subject matter on
which the expert is expected to testify, and the substance of the
expert’s testimony.19
14
See Booth v. Blueberry Hill Restaurants, 245 Neb. 490, 513 N.W.2d 867
(1994).
15
Id.
16
Neb. Ct. R. Disc. § 6-326(b)(4).
17
§ 6-326(b)(4)(A)(i).
18
§ 6-326(e).
19
§ 6-326(e)(1)(B).
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Neb. Ct. R. Disc. § 6-337 allows a party to apply for an
order compelling discovery and allows a trial court to impose
discovery sanctions if a party has failed to comply with a court
order to provide or permit discovery. And in Norquay v. Union
Pacific Railroad,20 we held that a trial court may appropri-
ately exclude all or part of an expert’s testimony at trial as a
sanction for noncompliance with the discovery rules requiring
supplementation. Norquay observed that when it comes to the
expected testimony of an expert:
“[I]f a party changes his plans about the expert wit-
nesses he will use at trial or if there is a change in
the subject matter on which an expert will testify or
the substance of his testimony a supplemental response
must be made. This is necessary to carry out the provi-
sions of Rule [§ 6-326(b)(4)] with regard to expert wit-
nesses. With the expert witnesses, as with the persons
having knowledge of discoverable facts, any change in
plan would routinely come to the attention of the law-
yers for the party and the burden of supplementation is
very small.”21
[12] Norquay instructs that the appropriate sanction for
failing to supplement expert discovery responses should be
determined by trial courts based on the factual context of
each case, and should be reviewed by appellate courts for
an abuse of discretion. When determining what sanction is
appropriate, a trial court should consider the explanation for
the failure to comply, the importance of the expert’s testimony,
the surprise to the opposing party, any time needed to prepare
to meet the testimony from the expert, and the possibility of
a continuance.22
20
Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146
(1987).
21
Id. at 538, 407 N.W.2d at 154 (quoting 8 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2049 (1970)).
22
Norquay v. Union Pacific Railroad, supra note 20. See, also, Brown v.
Hansen, 1 Neb. Ct. App. 962, 510 N.W.2d 473 (1993).
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FCMG argues its February 2013 disclosure did not require
supplementation, because it broadly stated Purdy would testify
about “‘the fees charged.’”23 FCMG also argues that Norquay
and § 6-337 only apply when a party completely fails to
respond to a discovery request regarding an expert. Finally,
FCMG generally argues that exclusion of evidence is a par-
ticularly harsh sanction and suggests that the court here should
have imposed a lesser sanction.
On this record, we find no abuse of discretion in the
trial court’s exclusion of Purdy’s testimony regarding the
proper interpretation of § 11.2. FCMG’s February 2013 dis-
covery responses, while broadly referencing fees, said noth-
ing about Purdy’s offering an opinion on the interpretation of
the contract provisions generally or § 11.2 in particular. After
FCMG served its discovery responses, the School District took
Purdy’s deposition and he did not offer an opinion regard-
ing the interpretation of § 11.2; nor was such an opinion
elicited from Purdy during the first trial. If FCMG wished
to expand the scope of Purdy’s expert testimony in the sec-
ond trial to include opinions regarding the proper interpreta-
tion of § 11.2, it should have supplemented its interrogatory
answer accordingly.
For the sake of completeness, we expressly reject FCMG’s
suggestion that Norquay and § 6-337 only allow a court to
exclude expert testimony if there has been a complete failure
to disclose anticipated opinions. Although that was the factual
circumstance presented in Norquay, we also have applied the
Norquay rule to limit an expert’s trial testimony when a party
who has failed to supplement prior discovery responses seeks
to offer an undisclosed opinion at trial.24 The trial court here
had discretion to consider a variety of sanctions, and under
the circumstances presented, we find no abuse of discretion in
23
Brief for appellant at 13.
24
See, e.g., Paulk v. Central Lab. Assocs., 262 Neb. 838, 636 N.W.2d 170
(2001).
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excluding Purdy’s opinion testimony on the proper interpreta-
tion of the contract.
(b) Kirchner
At trial, Kirchner testified about how FCMG actually calcu-
lated its fees, based on his review of the invoices it submitted
to the School District. However, the court sustained the School
District’s objections to questions seeking to elicit Kirchner’s
opinion on whether the method used by FCMG to calculate its
fees was legally consistent with the contractual language. The
court generally reasoned that Kirchner, as a forensic account­
ant, was not qualified to give an expert opinion on the legal
interpretation of the contract. FCMG contends this was an
abuse of discretion. We disagree.
FCMG relies on Maiz v. Virani 25 for the proposition that
Kirchner was qualified to give an expert opinion as to how the
contract should be interpreted. In that case, a forensic account-
ing expert testified about the damages incurred by the plaintiffs
in a complicated financial case. In doing so, the accounting
expert apparently referenced specific provisions of the parties’
contracts when explaining assumptions he made in arriving at
his opinions. On appeal, the defendants alleged his testimony
was improper, because he was not qualified to testify as to the
meaning of the parties’ ambiguous contract. The 11th Circuit
effectively held that the accounting expert did not actually
render opinions on the meaning of the contracts, but instead
only referenced contractual provisions as the basis for his cal-
culations. As such, the opinion in Maiz actually supports the
trial court’s finding that Kirchner was not qualified to give an
expert opinion on how the contract should be interpreted—it
does not support FCMG’s argument.
We find no abuse of discretion in the trial court’s decision
to preclude Kirchner from offering an opinion on whether the
method actually used by FCMG to calculate fees was consist­
ent with the contractual language.
25
Maiz v. Virani, 253 F.3d 641 (11th Cir. 2001).
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5. Prejudgment Interest
FCMG moved for partial summary judgment seeking a
determination that it was entitled to prejudgment interest as a
matter of law. The court denied the motion for partial summary
judgment and expressly held that FCMG was not entitled to
prejudgment interest. At trial, FCMG made an offer of proof
that, if permitted, it had a witness who was prepared to testify
that prejudgment interest was owed and who would have cal-
culated the amount due.
On appeal, FCMG alleges the trial court erred in refusing
to allow evidence of prejudgment interest. In a civil case,
the admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the complain-
ing party.26
Again, because the jury returned a general verdict in favor
of the School District, we presume the jury found FCMG failed
to prove breach of contract. So, on this record, the trial court
could not have committed prejudicial error by refusing to allow
FCMG to produce evidence of prejudgment interest on dam-
ages allegedly owed.
6. Posttrial Motions
Properly Denied
FCMG contends the damages awarded at trial were clearly
inadequate and the trial court erred in denying its motion for
judgment notwithstanding the verdict (JNOV) or, alternatively,
for new trial. We find no error in denying either motion.
(a) JNOV
FCMG moved for a directed verdict at the close of all
evidence, and the district court denied the motion. After the
jury returned a verdict in favor of the School District, FCMG
moved for JNOV, which the district court denied.
[13-15] A motion for JNOV may be granted when the
movant’s previous motion for directed verdict, made at the
26
In re Estate of Clinger, supra note 6; Arens v. NEBCO, Inc., supra note 6.
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conclusion of all the evidence, should have been sustained.27
To sustain a motion for JNOV, the court resolves the contro-
versy as a matter of law and may do so only when the facts are
such that reasonable minds can draw but one conclusion.28 On
a motion for JNOV, the moving party is deemed to have admit-
ted as true all the relevant evidence admitted that is favorable
to the party against whom the motion is directed, and, further,
the party against whom the motion is directed is entitled to
the benefit of all proper inferences deducible from the rel-
evant evidence.29
Here, FCMG’s motion for JNOV was premised on its claim
that the verdict for the School District was the result of con-
fusing jury instructions. Because a motion for JNOV asks the
trial court to revisit whether the movant’s prior motion for
directed verdict should have been granted as a matter of law, it
is improper to rely upon allegedly confusing jury instructions
as the basis for a JNOV motion. We have previously addressed,
and rejected, FCMG’s assignment that the jury instructions
were erroneous, and that issue fares no better reframed as one
in support of JNOV.
(b) New Trial
[16] FCMG moved alternatively for a new trial, asserting
the jury’s award of damages was inadequate, not sustained by
the evidence, and contrary to law. The district court denied the
motion. An appellate court reviews a denial of a motion for
new trial for an abuse of discretion.30
In its brief, FCMG describes the jury’s verdict as an “award
of zero damages”31 and argues the award was inadequate
27
Frank v. Lockwood, 275 Neb. 735, 749 N.W.2d 443 (2008).
28
United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196
(2015); Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
29
Frank v. Lockwood, supra note 27.
30
See, Knapp v. Ruser, 297 Neb. 639, 901 N.W.2d 31 (2017); Cisneros v.
Graham, 294 Neb. 83, 881 N.W.2d 878 (2016).
31
Brief for appellant at 21.
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because “the evidence at trial indisputably showed that FCMG
was entitled to be paid for additional work on the project.”32
Its argument is premised on the theory that the jury found in
FCMG’s favor on the breach of contract claim, but awarded no
damages because it also found for the School District on one
or more of its affirmative defenses. But the record does not
support that premise.
The jury returned a general verdict for the School District,
and thus an appellate court must presume the jury found in
favor of the School District on all issues, including the breach
of contract claim. Furthermore, contrary to FCMG’s assertion
that the evidence was “indisputable,”33 Mabrey specifically
testified that under the School District’s calculations, FCMG
had already been paid more than what was due. The trial court
did not abuse its discretion in failing to grant the motion for
new trial.
IV. CONCLUSION
We find no merit to FCMG’s assignments of error, and we
affirm the judgment of the district court.
A ffirmed.
Wright and K elch, JJ., not participating.
32
Id.
33
Id. at 17.