VKGS v. Planet Bingo , 309 Neb. 950 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/03/2021 01:08 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VKGS v. PLANET BINGO
Cite as 309 Neb. 950VKGS, LLC, doing business as Video King,
a Delaware limited liability company, appellant
and cross-appellee, v. Planet Bingo, LLC,
a California limited liability company,
and Melange Computer Services, Inc.,
a Michigan corporation, appellees
and cross-appellants.
___ N.W.2d ___
Filed August 13, 2021. No. S-20-125.
1. Trial: Evidence: Appeal and Error. Because authentication rulings are
necessarily fact specific, a trial court has discretion to determine whether
evidence has been properly authenticated. An appellate court reviews the
trial court’s ruling on authentication for abuse of discretion.
2. Judgments: Words and Phrases. A judicial abuse of discretion exists
if the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Trial: Appeal and Error. A trial court’s decision to bifurcate claims for
purposes of trial is reviewed for abuse of discretion.
4. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for clear
error the factual findings underpinning a trial court’s hearsay ruling and
reviews de novo the court’s ultimate determination to admit evidence
over a hearsay objection or exclude evidence on hearsay grounds.
6. Evidence: Appeal and Error. In a civil case, the admission or exclu-
sion of evidence is not reversible error unless it unfairly prejudiced a
substantial right of the complaining party.
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VKGS v. PLANET BINGO
Cite as 309 Neb. 9507. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
8. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law on which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
9. Rules of Evidence. Authentication or identification of evidence is a
condition precedent to its admission and is satisfied by evidence suf-
ficient to prove that the evidence is what the proponent claims.
10. ____. While not a high hurdle, it is still the burden of the proponent of
the evidence to provide the court with sufficient evidence that the docu-
ment or writing is what it purports to be.
11. Trial. Bifurcation of a trial may be appropriate where separate proceed-
ings will do justice, avoid prejudice, and further the convenience of the
parties and the court.
12. Courts: Trial. Trial courts have the inherent power over the general
conduct of a trial.
13. Appeal and Error. Under Nebraska law, a party cannot complain of
error which the party has invited the court commit.
14. Verdicts: Appeal and Error. A civil verdict will not be set aside where
evidence is in conflict or where reasonable minds may reach different
conclusions or inferences, as it is within the jury’s province to decide
issues of fact.
15. 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.
16. ____: ____: ____. To establish reversible error from a court’s failure to
give a requested jury instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the law, (2)
the tendered instruction was warranted by the evidence, and (3) the
appellant was prejudiced by the court’s failure to give the requested
instruction.
17. Jury Instructions: Appeal and Error. If the instructions given, which
are taken as a whole, correctly state the law, are not misleading, and
adequately cover the issues submissible to a jury, there is no prejudicial
error concerning the instructions and necessitating a reversal.
18. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is competent
evidence presented to the jury upon which it could find for the success-
ful party.
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VKGS v. PLANET BINGO
Cite as 309 Neb. 95019. Verdicts: Juries: Presumptions: Appeal and Error. When the jury
returns a general verdict for one party, an appellate court presumes that
the jury found for the successful party on all issues raised by that party
and presented to the jury.
20. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
21. Final Orders. Under Neb. Rev. Stat. § 25-1315 (Reissue 2016), an
order that adjudicates fewer than all the claims or the rights and liabili-
ties of fewer than all the parties is not final and is subject to revision at
any time before the entry of judgment adjudicating all the claims and the
rights and liabilities of all the parties.
Appeal from the District Court for Douglas County: Duane
C. Dougherty, Judge. Affirmed in part, and in part reversed
and remanded with directions.
Paul J. Gardner, B. Scott Eidson, J. Nicci Warr, and Julie
Scheipeter, of Stinson, L.L.P., for appellant.
Patrick R. Guinan, of Erickson & Sederstrom, P.C., Steven Z.
Cohen and Aaron E. Silvenis, of Cohen, Lerner & Rabinovitz,
P.C., and Nicholas F. Sullivan, of Dvorak Law Group, L.L.C.,
for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Freudenberg, JJ.
Funke, J.
VKGS, LLC, and Planet Bingo, LLC, competitors in the
bingo hall gaming industry, sued each other for breach of
contract. In the trial on VKGS’ claims, the jury found Planet
Bingo and its wholly owned subsidiary, Melange Computer
Services, Inc. (Melange), liable for $558,405. In a separate trial
on Planet Bingo and Melange’s claims, the jury found VKGS
liable for $2,990,000. The court awarded VKGS postjudgment
interest from the time of the first verdict, and it then entered
judgment in favor of Planet Bingo and Melange, while offset-
ting VKGS’ award.
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VKGS v. PLANET BINGO
Cite as 309 Neb. 950VKGS appeals, arguing that the court should have dismissed
Planet Bingo and Melange’s claims rather than bifurcate and
continue trial and that the court should not have ruled evi-
dence inadmissible or refused jury instructions. For reasons we
explain, VKGS’ appeal is without merit.
Planet Bingo and Melange cross-appeal, arguing that the
court should not have awarded VKGS postjudgment interest.
Planet Bingo and Melange’s cross-appeal has merit. Therefore,
we affirm in part, and in part reverse and remand with direc-
tions to modify the judgment in accordance with this opinion.
I. BACKGROUND
VKGS is a Delaware limited liability company with its
principal place of business in Omaha, Nebraska. Planet
Bingo is a foreign limited liability company doing business
in Nebraska. Melange was a software development company
which ultimately became a wholly owned subsidiary of Planet
Bingo. Melange is a Michigan corporation doing business
in Nebraska.
The dispute in this case involves bingo software. The case
has a complex procedural history. Background facts have
previously been set forth by this court and other courts. 1
Summarized, Melange developed a leading bingo hall manage-
ment and electronic gaming software called EPIC. The parties
maintained a contractual business relationship from approxi-
mately 2003 through 2012, which as of 2005 was protected
by an extensive confidentiality provision drafted by VKGS.
The parties explored a potential merger, which ultimately
failed. Eventually, after acquiring Melange, Planet Bingo and
Melange (hereinafter collectively Planet Bingo) alleged that
VKGS was in violation of contract by misusing confiden-
tial information taken from EPIC to develop a competing
1
Planet Bingo, LLC v. VKGS, LLC, 961 F. Supp. 2d 840 (W.D. Mich. 2013);
Planet Bingo, LLC v. VKGS, LLC, 319 Mich. App. 308, 900 N.W.2d 680(2017); VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013).
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Nebraska Supreme Court Advance Sheets
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VKGS v. PLANET BINGO
Cite as 309 Neb. 950software program called OMNI. VKGS in turn alleged that
Planet Bingo breached contractual obligations and tortiously
interfered with business relations by using pricing information
and disparagement to influence customers. Two separate jury
trials ensued.
1. First Trial: VKGS’ Claims
Trial on the parties’ claims began on August 20, 2018.
Originally, both parties were to present their claims during
the first trial. However, a need to bifurcate the parties’ claims
arose due to questioning by VKGS during its case in chief on
the sixth day of trial. VKGS asked William Wei, the former
president of Melange, about the source code for EPIC and
“VIPick’em,” a bingo game played using EPIC. Wei testified
that he believed that the EPIC source code and the VIPick’em
source code were confidential. VKGS asked, “[Y]ou would
never put any of that source code on the Internet, would you?”
To which Wei answered, “No.” VKGS then asked if Wei
filed a VIPick’em patent in Canada. Wei answered, “That, I
don’t know.”
VKGS attempted to impeach Wei through the use of an
exhibit, which was a copy of a file from the Canadian pat-
ent office, which VKGS had obtained from the internet that
day. The file included a 2001 Canadian patent application
for VIPick’em, with 158 pages of alleged source code. In
addition, the exhibit included an assignment signed by Wei
regarding Melange’s rights to the Canadian patent application.
Wei admitted that he had signed the assignment, but did not
remember having the document filed, could not identify the
document, and stated, “I have no knowledge of this.”
Planet Bingo objected, arguing that VKGS had failed to
lay foundation and had failed to disclose the document as a
trial exhibit, in violation of pretrial orders. After several hours
of argument outside the presence of the jury, the court deter-
mined that the patent application could not be admitted in
VKGS’ case in chief, because the exhibit lacked foundation,
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
VKGS v. PLANET BINGO
Cite as 309 Neb. 950was not authenticated, and was not relevant to VKGS’ claims.
The court found that Wei was being truthful in stating that he
did not recognize the document, that the exhibit was not a cer-
tified copy, and that no witness established the extent to which
the exhibit was in fact VIPick’em source code, or whether the
copy was in fact an official document publicly available on the
internet. VKGS argued the exhibit could be used to impeach
Wei, but the court found there was no foundation for purposes
of impeachment. The court found that the exhibit was not rele-
vant, that any relevance was substantially outweighed by unfair
prejudice, and that the issue was “too much of a surprise” and
should have been known months earlier. The court stated that
it would allow the evidence during Planet Bingo’s case. Planet
Bingo requested time to have an expert compare the source
code with EPIC before presenting its claims.
In turn, VKGS moved for dismissal of Planet Bingo’s claims,
arguing that the claims lacked adequate investigation and were
not viable going forward. The court denied VKGS’ motion. In
the alternative, VKGS asked the court to “sever” the claims so
as to allow VKGS to proceed separately with submission of
its claims to the jury. VKGS argued that “the only appropriate
action here is to sever the claims, create two different cases,
allow Planet Bingo to then decide what they want to do with
their claims, if anything.” VKGS stated, “[W]e do believe
that if you would prefer to bifurcate . . . that would also be
a way that would prevent extreme prejudice against [VKGS]
while preserving Planet Bingo’s right to go forward with their
claims.” The court overruled VKGS’ motion to “sever,” and
then proceeded to bifurcate the trial. Trial continued on VKGS’
claims only.
At the jury instruction conference, the court refused VKGS’
proffered instruction regarding the implied contractual duty
of good faith and fair dealing. After closing arguments, on
September 7, 2018, the jury found in favor of VKGS and
against Planet Bingo for breach of contract in the amount of
$558,405. The jury rejected VKGS’ other breach of contract
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VKGS v. PLANET BINGO
Cite as 309 Neb. 950and tortious interference claims. The court entered an order
on the verdict on September 13, 2018. The court found under
Neb. Rev. Stat. § 25-1315 (Reissue 2016) that the order was
not final for purposes of appeal until all claims had been adju-
dicated on the merits.
2. Second Trial: Planet Bingo’s Claims
Trial on Planet Bingo’s claims commenced on June 12,
2019. Planet Bingo presented evidence to the jury showing that
VKGS violated the confidentiality provision of the parties’ con-
tract by reverse engineering EPIC to develop OMNI. During
OMNI’s development process, VKGS personnel admitted in
emails that they reverse engineered EPIC in order to under-
stand the software, and they were on record stating, “‘When in
doubt, copy EPIC.’” The court rejected VKGS’ proffered jury
instructions regarding Planet Bingo’s breach of contract claims.
The jury found VKGS liable to Planet Bingo for breach of con-
tract in the amount of $2,990,000, but rejected Planet Bingo’s
misappropriation of trade secret claim and other claims.
The court awarded VKGS postjudgment interest dating back
to the order on the first verdict. The court then entered judg-
ment in favor of Planet Bingo while offsetting the award
to VKGS.
VKGS appealed. Planet Bingo filed a cross-appeal.
II. ASSIGNMENTS OF ERROR
VKGS assigns, restated and summarized, that the district
court erred in (1) bifurcating trial rather than dismissing Planet
Bingo’s claims, (2) refusing to admit evidence, and (3) refusing
proposed jury instructions.
Planet Bingo assigns on cross-appeal that the district court
erred in awarding VKGS postjudgment interest.
III. STANDARD OF REVIEW
[1,2] Because authentication rulings are necessarily fact
specific, a trial court has discretion to determine whether
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VKGS v. PLANET BINGO
Cite as 309 Neb. 950evidence has been properly authenticated. 2 An appellate court
reviews the trial court’s ruling on authentication for abuse of
discretion. 3 A judicial abuse of discretion exists if the reasons
or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. 4
[3] A trial court’s decision to bifurcate claims for purposes
of trial is reviewed for abuse of discretion. 5
[4-6] A trial court has the discretion to determine the rele­
vancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion. 6 Apart from rulings under the residual hear-
say exception, an appellate court reviews for clear error the
factual findings underpinning a trial court’s hearsay ruling and
reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection or exclude evidence on
hearsay grounds. 7 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. 8
[7] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. 9
2
O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017);
State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016); State v. Nolan, 283
Neb. 50, 807 N.W.2d 520 (2012).
3
Id.4
Vyhlidal v. Vyhlidal, ante p. 376, 960 N.W.2d 309 (2021).
5
See, Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009);
Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792(2005).
6
Acklie v. Greater Omaha Packing Co., 306 Neb. 108, 944 N.W.2d 297(2020).
7
Cessna Aircraft Co., supra note 2.
8
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896
N.W.2d 156 (2017).
9
Acklie, supra note 6.
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VKGS v. PLANET BINGO
Cite as 309 Neb. 950[8] Statutory interpretation presents a question of law on
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 10
IV. ANALYSIS
1. VKGS’ Appeal
VKGS argues that its appeal is about what information is
confidential, what information is public, and who should have
access to what information. VKGS argues that these issues
determine the merits of Planet Bingo’s breach of contract
claim. Moreover, VKGS argues that Planet Bingo benefited
from a “monumental procedural error” 11 which prejudiced
VKGS in the presentation of its own claims and the defense
of the claims against it. Both VKGS’ substantive argument and
procedural argument focus on the court’s rulings regarding the
undisclosed 2001 Canadian patent application. In our analysis,
we explain that the court correctly excluded the patent applica-
tion from VKGS’ case and that it correctly refused to dismiss
Planet Bingo’s claims. We find no merit to VKGS’ arguments,
nor merit to VKGS’ remaining arguments that the court erred
in refusing other evidence and proposed jury instructions.
(a) Exclusion of Evidence in VKGS’ Case
[9] VKGS argues that the 2001 Canadian patent applica-
tion should have been admitted in its case in chief. However,
it is undisputed that VKGS failed to lay foundation for the
exhibit or properly authenticate the exhibit. Authentication
or identification of evidence is a condition precedent to its
admission and is satisfied by evidence sufficient to prove that
the evidence is what the proponent claims. 12 Neb. Rev. Stat.
10
Wayne L. Ryan Revocable Trust v. Ryan, 308 Neb. 851, 957 N.W.2d 481(2021).
11
Brief for appellant at 19.
12
Cessna Aircraft Co., supra note 2; Oldson, supra note 2.
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VKGS v. PLANET BINGO
Cite as 309 Neb. 950§ 27-901(1) (Reissue 2016) does not impose a high hurdle for
authentication or identification of proffered evidence as a con-
dition precedent to admissibility. 13 The requirement of authen-
tication or identification as a condition precedent to admissi-
bility may be satisfied by testimony that a matter is what it is
claimed to be, and proper authentication may also be attained
by evidence of appearance, contents, substance, internal pat-
terns, or other distinctive characteristics, taken in conjunction
with circumstances, sufficient to support a finding that the mat-
ter in question is what it is claimed to be. 14
Neb. Rev. Stat. § 27-902(4) (Reissue 2016) provides that
properly certified public records are self-authenticating. 15
Under Neb. Rev. Stat. § 27-1005 (Reissue 2016), the contents
of a copy of an official record may be admitted, if the copy of
the official record is certified or if a person is called and testi-
fies after comparing the copy with the original that it is correct
and accurate. 16
[10] At the first trial, VKGS failed to produce a certified
copy of the Canadian patent application and failed to lay
the necessary foundation through a witness. VKGS failed to
establish that the document was a publicly available official
document that contained source code for VIPick’em. While
not a high hurdle, it is still the burden of the proponent of the
evidence to provide the court with sufficient evidence that the
document or writing is what it purports to be. 17 On this record,
we find no abuse of discretion in excluding the exhibit for lack
of authentication.
(b) Bifurcation/Motion for Judgment
VKGS argues that the court erred in bifurcating the par-
ties’ claims, rather than simply dismissing Planet Bingo’s
13
State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).
14
State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).
15
State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).
16
State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983).
17
Id.- 960 -
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VKGS v. PLANET BINGO
Cite as 309 Neb. 950claims. VKGS argues that Planet Bingo had the Canadian
patent application in its possession and, with due diligence,
could have been timely prepared to address the evidence at
trial. VKGS further argues that bifurcation unfairly gave Planet
Bingo what was in effect an 8-month continuance to investi-
gate and prepare its claims.
[11,12] Bifurcation is a term used to describe the practice
of trying one or more of the issues in a case before trying the
remaining issues. 18 Bifurcation of a trial may be appropriate
where separate proceedings will do justice, avoid prejudice,
and further the convenience of the parties and the court. 19
Where a party is confronted with a multiclaim suit that is
unmanageable, that party can raise those concerns through a
motion to bifurcate the claims. 20 Additionally, trial courts have
the inherent power over the general conduct of a trial. 21
[13] In assessing VKGS’ arguments, we are given direc-
tion from the findings of the district court, which explained
the defects in VKGS’ presentation. During the second week
of trial, VKGS sought to introduce the previously undisclosed
Canadian patent application exhibit in its case in chief, yet the
exhibit was relevant only to VKGS’ defense against Planet
Bingo’s claims. The exhibit was not certified, and VKGS failed
to have a witness properly authenticate or identify the exhibit.
When the court did not admit the exhibit and denied VKGS’
motion to dismiss Planet Bingo’s claims, VKGS did not object
to bifurcation of the parties’ claims. In fact, VKGS offered
bifurcation as a resolution to the patent application dispute.
Under Nebraska law, a party cannot complain of error which
the party has invited the court to commit. 22 As such, VKGS
18
John P. Lenich, Nebraska Civil Procedure § 7:8 (2021).
19
Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920
N.W.2d 268 (2018).
20
Id.21
Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991).
22
Mahlendorf v. Mahlendorf, 308 Neb. 202, 952 N.W.2d 923 (2021).
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VKGS v. PLANET BINGO
Cite as 309 Neb. 950cannot now claim on appeal the trial court erred in bifurcat-
ing the trial. In actuality, VKGS’ argument on appeal goes
to the court’s refusal to dismiss Planet Bingo’s claims rather
than bifurcation.
After Planet Bingo indicated that it could not go forward
on its claims until it had an expert review the Canadian patent
application, VKGS argued that judgment should be granted in
its favor. VKGS argued that because Planet Bingo made its
software publicly available through the patent filing, as well as
through a copyright filing, EPIC seminars, and posting screen-
shots of EPIC on its website, the information was no longer
confidential. VKGS stated that Planet Bingo was “claiming
confidential information over a product that they placed the
most confidential part of on the internet.” VKGS argued that
the public availability of the software showed that Planet
Bingo’s claims had no merit and that the lawsuit was filed with
a wrongful intent to interfere with VKGS’ business. VKGS
reiterated these arguments in its written motion for judgment
or, in the alternative, to “sever” Planet Bingo’s counterclaim
filed with the court. VKGS claimed that “the revelation that
the source code for VIPick’em[] and very likely EPIC were
publicly available for anyone to see calls its entire theory of
its claims into question.” Our record does not include a written
court order on VKGS’ motion. However, the court had already
rejected VKGS’ argument in an earlier order denying VKGS’
motion for summary judgment.
In its earlier motion for summary judgment, VKGS asked
the court to adopt the approach taken by the U.S. Court of
Appeals for the Seventh Circuit, which enforces confidentiality
agreements only when the information sought to be protected is
actually confidential and reasonable efforts were made to keep
it confidential. 23 Neb. Rev. Stat. § 87-502(4) (Reissue 2014)
23
nClosures Inc. v. Block and Co., Inc., 770 F.3d 598 (7th Cir. 2014)
(applying Illinois law).
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Cite as 309 Neb. 950of Nebraska’s Trade Secrets Act 24 provides a similar definition
for “[t]rade secret.” 25 Planet Bingo argued that it implemented
safeguards to protect its confidential and proprietary informa-
tion through licensing agreements or confidentiality agree-
ments which restricted access and disclosure. Planet Bingo also
argued that EPIC was never made publicly available and could
not be purchased. The court, in ruling on the prior motion for
summary judgment, found that, assuming that the Seventh
Circuit’s standard applies, “there remains a question of fact as
to whether the information sought to be protected is confiden-
tial and whether Planet Bingo took reasonable efforts to keep
it confidential.”
We agree with the district court’s determination that Planet
Bingo’s breach of contract claim raised issues of fact for the
jury’s consideration, even under the legal standard proposed
by VKGS. VKGS’ legal argument is overstated because it
presumes without evidence that the entirety of EPIC’s source
code is not confidential and that no reasonable steps were
taken to protect EPIC’s confidentiality. The patent application,
for example, merely established the public availability of 158
pages of source code for one bingo game, in a 2001 application
that was rejected and abandoned. VKGS did not show that the
EPIC software is not confidential as a matter of law.
Later, during the trial of Planet Bingo’s claims, Planet
Bingo’s software expert testified that the source code from
the Canadian patent application contained approximately 3
percent of EPIC. Additionally, the application contained an
outdated version of VIPick’em and did not contain the entirety
of the source code for the game. Typically, the question of
whether reasonable measures were taken to keep information
24
Neb. Rev. Stat. §§ 87-501 et seq. (Reissue 2014).
25
First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465(2013). See, also, Compuware Corp. v. Serena Software Intern., Inc., 77 F.
Supp. 2d 816 (E.D. Mich. 1999).
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Cite as 309 Neb. 950confidential is an issue for a jury. 26 “‘[O]nly in an extreme
case can what is a “reasonable” precaution be determined [as a
matter of law], because the answer depends on a balancing of
costs and benefits that will vary from case to case.’” 27 Because
there were issues of fact as to whether EPIC’s source code was
confidential and whether VKGS violated the parties’ confi-
dentiality provision, the district court properly refused VKGS’
request for judgment on Planet Bingo’s claims and submitted
the claims to the jury.
(c) Exclusion of Evidence
in Planet Bingo’s Case
VKGS argues that the court erred by excluding a portion of
an exhibit showing Melange’s financial information during its
defense of Planet Bingo’s claims, which the court had admitted
in full during the trial of VKGS’ claims. VKGS argues that it
was prejudiced by the partial exclusion of the exhibit, because
VKGS sought to establish that Planet Bingo had installed its
software at hundreds of charity halls without their being sub-
ject to a confidentiality provision. VKGS argues the excluded
evidence goes to its defense that Planet Bingo’s software was
not confidential.
[14] Planet Bingo argues that the court did admit the part
of the evidence that was relevant to VKGS’ defense, over
Planet Bingo’s objection, and excluded the remaining portions
of the exhibit, which were not relevant to VKGS’ defense.
Based upon our review of the record, we conclude that VKGS
failed to show any error or prejudice based upon the court’s
evidentiary rulings. VKGS presented extensive evidence to
support its defense theory that Planet Bingo’s software was
26
See, Tax Track Systems Corp. v. New Investor World, 478 F.3d 783 (7th
Cir. 2007); Am. Center for Excellence v. Community College, 190 F. Supp.
3d 812 (N.D. Ill. 2016).
27
Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 725 (7th
Cir. 2003).
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Cite as 309 Neb. 950not confidential. Even if the remaining portions of the exhibit
were admitted, the jury was inevitably faced with the factual
question of whether any such public disclosure of software
would allow for copying or reverse engineering. Based on the
arguments presented by the parties, the district court correctly
found that reasonable minds may differ on the confidentiality
issues presented by the evidence in this case. A civil verdict
will not be set aside where evidence is in conflict or where rea-
sonable minds may reach different conclusions or inferences,
as it is within the jury’s province to decide issues of fact. 28 This
assignment of error is without merit.
(d) Jury Instructions
[15-17] VKGS’ final two arguments concern jury instruc-
tions. 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. 29 To establish
reversible error from a court’s failure to give a requested jury
instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3)
the appellant was prejudiced by the court’s failure to give the
requested instruction. 30 If the instructions given, which are
taken as a whole, correctly state the law, are not misleading,
and adequately cover the issues submissible to a jury, there is
no prejudicial error concerning the instructions and necessitat-
ing a reversal. 31
VKGS argues that the court erred in giving a breach of
contract jury instruction which allowed the jury to consider
together, as one breach of contract claim, the parties’ 2003
28
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).
29
Id.30
Id.31
Id.- 965 -
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Cite as 309 Neb. 950marketing agreement, the 2004 licensing agreement, a 2005
agreement which solidified the parties’ relationship and super-
seded the previous agreements, and a 2007 addendum. VKGS
argues that the jury should not have been permitted to consider
the 2003 and 2004 agreements, because the confidentiality
provision authored by VKGS was not put in place until 2005.
Therefore, according to VKGS, the 2003 and 2004 agreements
would have been superseded at the time of any alleged breach.
VKGS argues that because the 2003 and 2004 agreements
were superseded, they were “legally defunct at the time of the
alleged breach” 32 and should not have been considered by the
jury. We find no merit to this argument.
The trial evidence showed the parties’ contractual relation-
ship over time. The parties were not bound by the confiden­
tiality agreement until 2005. As such, in isolation the 2003 and
2004 agreements were of limited relevance to Planet Bingo’s
claim that VKGS misused contractual information. However,
VKGS has failed to show how including the contracts in one
instruction created any prejudice. VKGS cannot now argue on
appeal that the 2003 and 2004 agreements are legally defunct,
because VKGS asserted its rights under those agreements
since it filed its complaint in this case and attached the 2004
agreement, as well as the 2005 agreement, which incorporated
the entire 2003 agreement. Thus, the facts show that the par-
ties’ contracts were interrelated and cannot be easily separated
into different instructions as VKGS proposes. Further, VKGS
failed to show any prejudice as to how the jury was instructed.
Under our rule that we review the jury instructions as a whole
when analyzing prejudice, there is effectively no difference
between submitting the agreements to the jury separately and
doing so in one instruction. Because we find that the court’s
instructions correctly stated the law, were not misleading,
and adequately covered the issues, we conclude there was no
prejudicial error.
32
Brief for appellant at 35.
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Cite as 309 Neb. 950[18] VKGS also argues that because the jury rejected Planet
Bingo’s trade secret claim, the jury necessarily accepted Planet
Bingo’s breach of contract theory regarding the confidentiality
provision. VKGS argues that this is a legally improper result
and that the jury was required to specifically identify what
information was confidential and which contract was breached.
Because, as discussed, we do not view VKGS’ position that all
of EPIC was not confidential to be supported by the record, we
consider VKGS’ argument to be a sufficiency of the evidence
argument. A jury verdict may not be set aside unless clearly
wrong, and it is sufficient if there is competent evidence pre-
sented to the jury upon which it could find for the successful
party. 33 We conclude there was competent evidence presented
to the jury upon which it could find for Planet Bingo.
[19] Moreover, VKGS’ argument improperly speculates as
to the jury’s deliberation. On the verdict form for breach of
contract regarding the 2003, 2004, and 2005 agreements and
2007 addendum, the jury found that “Planet Bingo [has] met
[its] burden of proof with respect to its breach of contract claim
against VKGS . . . and the total amount of damages Planet
Bingo . . . has incurred as a result of [VKGS’] breach of con-
tract is $2,990,000.” When the jury returns a general verdict
for one party, an appellate court presumes that the jury found
for the successful party on all issues raised by that party and
presented to the jury. 34 Under an appropriate analysis of a jury
verdict by an appellate court, we conclude that the jury found
in favor of Planet Bingo on a valid breach of contract claim,
rather than on an invalid claim as VKGS argues.
Lastly, VKGS argues that the court should not have refused
its instruction for breach of implied covenant of good faith
and fair dealing. It is undisputed that under a choice of law
33
Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
34
Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 395 (2015); Heckman
v. Burlington Northern Santa Fe Ry. Co., 286 Neb. 453, 837 N.W.2d 532(2013).
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Cite as 309 Neb. 950provision, the parties’ agreements are governed by Michigan
law. Michigan does not recognize a separate cause of action for
breach of the implied duty of good faith and fair dealing. 35 As
such, the trial court could not have instructed the jury as VKGS
requested. Therefore, the court did not err in refusing VKGS’
instruction. VKGS’ appeal is without merit.
2. Planet Bingo’s Cross-Appeal
Planet Bingo argues that the trial court erred by awarding
VKGS postjudgment interest from the date the court accepted
the first jury’s verdict, because no judgment was entered after
the first trial and interest had not yet begun to accrue.
[20] 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. 36 Under Neb. Rev. Stat. § 45-103(Reissue 2010), postjudgment interest accrues on all “decrees
and judgments.” Under Neb. Rev. Stat. § 45-103.01 (Reissue
2010), interest accrues on decrees and judgments “from the
date of entry of judgment until satisfaction of judgment.”
Section 25-1315 states in part:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties
only upon an express determination that there is no just
reason for delay and upon an express direction for the
entry of judgment. In the absence of such determina-
tion and direction, any order or other form of decision,
35
Gorman v. American Honda Motor Co., 302 Mich. App. 113, 839 N.W.2d
223 (2013); Belle Isle Grill Corp. v. Detroit, 256 Mich. App. 463, 666
N.W.2d 271 (2003); Ulrich v. Federal Land Bank of St. Paul, 192 Mich.
App. 194, 480 N.W.2d 910 (1991).
36
Wayne L. Ryan Revocable Trust, supra note 10.
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Cite as 309 Neb. 950however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all
the parties shall not terminate the action as to any of the
claims or parties, and the order or other form of deci-
sion is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
Under Neb. Rev. Stat. § 25-1316 (Reissue 2016), “If a coun-
terclaim or setoff established at trial exceeds the plaintiff’s
claim so established, judgment for the defendant must be given
for the excess; or, if it appears that the defendant is entitled to
any affirmative relief, judgment should be given therefor.” The
practice in this state is that an action including a counterclaim
shall be tried as an entirety, and not as separate suits. 37
[21] In the present matter, although the parties’ claims were
joined pretrial, during the course of trial, offsetting claims and
counterclaims were bifurcated and tried separately. Though
VKGS’ claims and Planet Bingo’s claims were tried separately,
they were not tried as separate suits; nor did the trial court
certify the jury verdict from the first trial as a final judgment.
Absent such certification, orders adjudicating fewer than all
claims or the rights of fewer than all the parties are not final
and are subject to revision at any time before the entry of judg-
ment adjudicating all the claims and the rights and liabilities of
all the parties. 38 Final judgment in this case occurred after all
of the parties’ claims were adjudicated and both jury verdicts
were accepted by the district court. As postjudgment inter-
est accrues only on judgments, and § 25-1316 contemplates
only one “judgment,” the district court erred in awarding
VKGS postjudgment interest when interest had not begun to
accrue on VKGS’ claim and Planet Bingo’s claim exceeded
VKGS’ claim. The award of postjudgment interest to VKGS is
37
Miller v. McGannon, 79 Neb. 609, 113 N.W. 170 (1907).
38
Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
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Cite as 309 Neb. 950hereby reversed and the cause is remanded to the district court
with directions to modify the judgment in conformity with
this opinion.
V. CONCLUSION
The district court did not err in bifurcating trial of the
parties’ claims, nor did the court err in declining to dismiss
Planet Bingo’s claims or in refusing VKGS’ evidence and jury
instructions. The district court erred in awarding VKGS post-
judgment interest.
Affirmed in part, and in part reversed
and remanded with directions.
Papik, J., not participating.