McGill Restoration v. Lion Place Condo. Assn.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/25/2021 12:09 AM CDT
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202McGill Restoration, Inc., a Nebraska corporation,
appellee, v. Lion Place Condominium
Association, an unincorporated
association, appellant.
___ N.W.2d ___
Filed May 14, 2021. No. S-20-416.
1. Judgments: Appeal and Error. In a bench trial of a law action, a trial
court’s factual findings have the effect of a jury verdict and will not be
set aside on appeal unless clearly wrong.
2. ____: ____. After a bench trial of a law action, an appellate court does
not reweigh evidence, but considers the evidence in the light most favor-
able to the successful party and resolves evidentiary conflicts in favor of
the successful party.
3. Trial: Evidence: Appeal and Error. Judicial discretion is allowed to
determine the relevancy of evidence, and such determination will not be
disturbed on appeal unless it constitutes an abuse of discretion.
4. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
de novo whether the trial court applied the correct legal standards for
admitting an expert’s testimony, but a trial court’s ruling in receiving
or excluding an expert’s testimony which is otherwise relevant will be
reversed only when there has been an abuse of discretion.
5. ____: ____: ____. An appellate court reviews de novo whether the trial
court applied the correct legal standards for admitting an expert’s tes-
timony, and an appellate court reviews for abuse of discretion how the
trial court applied the appropriate standards in deciding whether to admit
or exclude an expert’s testimony.
6. Pretrial Procedure: Appeal and Error. Generally, the control of
discovery is a matter for judicial discretion, and decisions regard-
ing discovery will be upheld on appeal in the absence of an abuse
of discretion.
7. Judgments: Words and Phrases. A judicial abuse of discretion exists
when a judge, within the effective limits of authorized judicial power,
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202elects to act or refrain from acting, but the selected option results in a
decision which is untenable and unfairly deprives a litigant of a substan-
tial right or a just result in matters submitted for disposition through a
judicial system.
8. Damages: Appeal and Error. The amount of damages to be awarded is
a determination solely for the fact finder, and the fact finder’s decision
will not be disturbed on appeal if it is supported by the evidence and
bears a reasonable relationship to the elements of the damages proved.
9. Attorney Fees: Appeal and Error. On appeal, a trial court’s deci-
sion awarding or denying attorney fees will be upheld absent an abuse
of discretion.
10. ____: ____. When an attorney fee is authorized, the amount of the fee
is addressed to the discretion of the trial court, whose ruling will not be
disturbed on appeal in the absence of an abuse of discretion.
11. Contracts: Breach of Contract. As a contract consists of a binding
promise or set of promises, a breach of contract is a failure, without
legal excuse, to perform any promise that forms the whole or part of
a contract.
12. Contracts: Actions: Substantial Performance: Proof. To success-
fully bring an action on a contract, a plaintiff must first establish that
the plaintiff substantially performed the plaintiff’s obligations under
the contract.
13. Contracts. As a general rule, every contract for work or services
includes an implied duty to perform the work or services skillfully, care-
fully, diligently, and in a workmanlike manner.
14. Contracts: Words and Phrases. In a “workmanlike manner” connotes
work in the same manner that a person skilled in doing such work would
do it, and in a manner generally considered skillful by those capable of
judging such work in the community of the performance.
15. Constitutional Law: Jury Trials. The right to a jury trial is guaranteed
by Neb. Const. art. I, § 6.
16. Jury Trials: Waiver: Statutes. A waiver of a jury trial in district
court is statutorily governed by Neb. Rev. Stat. § 25-1126 (Reissue
2016), which provides an exclusive list of the manners in which a
waiver occurs.
17. Attorney and Client. The right of an attorney to enter an appearance
for a party can be called in question only by the party.
18. Attorney and Client: Presumptions. When an attorney appears in an
action as the representative of a party to the action, the presumption of
the law is that the attorney appears by the authority of the party whom
the attorney assumes to represent.
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 20219. Attorney and Client: Negligence. A client is bound by the acts,
omissions, neglect, and fraud of the client’s attorney if such conduct
is within the attorney’s scope of express, implied, apparent, or osten-
sible authority.
20. Attorney and Client. From the nature of the attorney-client relationship
itself, a lawyer derives authority to manage the conduct of litigation on
behalf of a client, including the authority to make certain procedural or
tactical decisions.
21. Attorney and Client: Jury Trials: Waiver. A lawyer’s authority to
manage the conduct of litigation on behalf of a client encompasses the
choice, in a civil action as opposed to a criminal action, to waive a
jury trial.
22. Rules of Evidence: Compromise and Settlement: Appeal and Error.
A court’s determination of preliminary questions of fact conditioning
the applicability of the exclusionary rule set forth in Neb. Rev. Stat.
§ 27-408 (Reissue 2016) are reviewed for clear error.
23. Claims: Evidence: Compromise and Settlement: Public Policy. The
inadmissibility of evidence of negotiations and compromise or settle-
ment of a claim reflects a public policy consideration favoring compro-
mise of disputes.
24. Claims: Evidence: Compromise and Settlement. Evidence of nego-
tiations and compromise or settlement of a claim is irrelevant because
the transaction is motivated by a desire for peace rather than from the
strength or weakness of a claim.
25. Rules of Evidence: Compromise and Settlement: Impeachment:
Public Policy. To use conduct or statements in compromise negotia-
tions for impeachment would tend to swallow the exclusionary rule and
impair the public policy of promoting settlements; therefore, admis-
sibility as an inconsistent statement does not fall under the “another
purpose” exception to the exclusionary rule of Neb. Rev. Stat. § 27-408(Reissue 2016).
26. Claims: Evidence: Compromise and Settlement. An admission against
interest concerning an element of the disputed claim is not an exception
to the general inadmissibility of conduct or statements made in settle-
ment negotiations.
27. Appeal and Error. In order to be considered by an appellate court, the
party asserting the alleged error must both specifically assign and spe-
cifically argue it in the party’s initial brief.
28. Breach of Contract: Evidence. Evidence of a deficiency is immate-
rial without the identity of the person charged with responsibility for
the work.
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Cite as 309 Neb. 20229. Expert Witnesses: Testimony. Findings of fact as to technical matters
beyond the scope of ordinary experience are usually not warranted in the
absence of expert testimony supporting such findings.
30. Breach of Contract: Contractors and Subcontractors. Whether a
skilled contractor breached a contract to render services in the practice
of the trade by failing to conduct the work in a workmanlike manner
depends on whether the contractor exercised the skill and knowledge
normally possessed by members of the trade in good standing in simi-
lar communities.
31. Breach of Contract: Expert Witnesses: Proof. Ordinarily, the standard
of care for the rendering of services in the practice of a trade is outside
the common knowledge and experience of ordinary persons and must,
therefore, be established by expert testimony.
32. ____: ____: ____. Expert testimony is not necessarily required to estab-
lish a breach by the failure to achieve a particular result that can be
shown by lay witness observations, but that is when the contract explic-
itly guarantees a certain result and not just to perform in a workmanlike
fashion according to industry standards.
33. Trial: Expert Witnesses. It is within the trial court’s discretion to deter-
mine whether there is sufficient foundation for an expert witness to give
his or her opinion about an issue in question.
34. Expert Witnesses. An expert must have good grounds for the expert’s
belief in every step of the analysis.
35. Words and Phrases. The term “good grounds” means an inference
or assertion derived by scientific method and supported by appropri-
ate validation.
36. Evidence. It is a logical fallacy to assume that temporal correlation
equals causation.
37. ____. A causation opinion based solely on a temporal relationship is
unreliable, because it is not derived from the scientific method and is
not based upon sufficient facts or data.
38. Attorney Fees: Costs. In determining whether to assess attorney fees
and costs and the amount to be assessed against offending attorneys
and parties, the court considers a number of factors, including, but
not limited to, the 10 factors listed in Neb. Rev. Stat. § 25-824.01(Reissue 2016).
39. Attorney Fees: Claims. Neb. Rev Stat. § 25-824(5) (Reissue 2016)
contemplates that attorney fees may be assessed when a party persists in
asserting a claim after it knows or reasonably should know it would not
prevail on the claim.
40. Prejudgment Interest: Appeal and Error. Awards of prejudgment
interest are reviewed de novo.
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 20241. Rules of the Supreme Court: Pleadings: Prejudgment Interest:
Notice. Compliance with Neb. Ct. R. Pldg. § 6-1108(a) is not determi-
native where entitlement to interest is based on statute and the adverse
party had notice and an opportunity to be heard prior to judgment.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.
Jodie Haferbier McGill, of McGill Law, P.C., L.L.O., for
appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
In an appeal from a judgment in a bench trial in favor of a
contractor against the homeowners’ association that hired it to
conduct repair work, the homeowners’ association argues that
the court erred in finding it had waived, by one of the methods
described in Neb. Rev. Stat. § 25-1126 (Reissue 2016), its right
to a jury trial. The homeowners’ association disagrees with
the lower court’s conclusion that it had to present expert tes-
timony to support its defense and counterclaims asserting that
the repair work was done in an unworkmanlike manner. It also
argues the court erred in excluding lay testimony of other con-
tractors, in finding its expert witness lacked foundation for his
opinions, and in excluding testimony relating to what the court
found to be compromise negotiations. Finally, the homeowners’
association challenges the court’s award of prejudgment inter-
est and attorney fees. We affirm.
II. BACKGROUND
McGill Restoration, Inc. (McGill), sued Lion Place Con­
do­minium Association (Lion) for breach of a series of oral
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202contracts whereby Lion was to pay $25,000 to McGill for
materials and services performed on a building managed by
Lion in Omaha, Nebraska. The work entailed, for a specified
portion of the facade, repairs to prior repairs by another con-
tractor. In its complaint against Lion, McGill asserted breach
of contract and quantum meruit. McGill sought $25,000,
together with costs, prejudgment interest, postjudgment inter-
est, and such other and further relief as the court deemed just
and proper.
Lion denied the allegations and pled the affirmative defenses
of failure to state a claim, estoppel, laches, failure to per-
form, failure of consideration, lack of consideration, breach of
express warranty, and breach of implied warranty and offset.
Lion counterclaimed for breach of contract, breach of implied
and express warranties, and negligence.
The case had been filed in county court but was trans-
ferred on August 23, 2012, to district court due to the amount
of Lion’s counterclaim. In response to McGill’s requests for
admissions, Lion admitted that it had requested McGill to
perform repair work on the Lion building, McGill conducted
repair work on the Lion building in 2009, McGill sent Lion an
invoice for the work, and Lion has not paid McGill the amount
reflected in the invoice.
1. Waiver of Jury Trial
During a pretrial hearing on February 13, 2015, on several
motions, including a motion by Lion’s first counsel, Michael
Kennedy, to withdraw, Lion’s new counsel stated to the bench
that he was appearing at the hearing on Lion’s behalf. New
counsel stated he would be “becoming the new counsel of
record assuming that you allow . . . Kennedy to withdraw.”
He had, however, already filed on Lion’s behalf a motion to
disqualify McGill’s counsel. Lion’s new counsel was the main
advocate for Lion during the lengthy hearing, but Kennedy
also participated.
The court set the matter for trial to the bench on March 16,
2015. The court specifically asked the parties’ attorneys, “I
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202assume it’s to the bench?” Both McGill’s counsel and Lion’s
new counsel stated that was correct. Kennedy did not state
anything to the contrary.
The court granted Kennedy’s motion to withdraw. McGill
had objected to the motion to withdraw on the grounds that it
could delay trial for Lion to switch counsel at that short junc-
ture, but Lion’s new counsel stated, “I do believe that there is a
good chance that I could be ready to go at trial on March 16th,
which I understand that it’s set for.”
Subsequently, on February 23, 2015, Lion’s new counsel
requested a jury trial and denied that Lion had previously
waived its right to a jury trial. A hearing on the matter was
held on March 2, approximately 2 weeks before the scheduled
bench trial.
At the hearing, Lion’s new counsel acknowledged that he had
answered in the affirmative at the prior hearing regarding hav-
ing a bench trial, but explained that he had been under the false
impression a jury trial had already been affirmatively waived.
New counsel conceded that his discussions with Kennedy had
given him that impression. New counsel explained that in a
conversation with his client at some later date, he learned his
impression was wrong.
New counsel submitted an affidavit by Michael Henery, who
was Lion’s president at that time, averring that he “was never
advised that the matter was scheduled for a bench trial” and
that “[a]t no time was [Lion], or members of the Executive
Board, including myself, advised of the requirement to elect
between a jury trial or bench trial.” Lion also submitted an
affidavit by Kennedy, averring he “did not waive [Lion’s] right
to a jury trial in any way whatsoever,” elaborating that he “did
not file any written waivers of [Lion’s] right to a jury trial on
behalf of [Lion], and never affirmatively waived [Lion’s] right
to a jury trial in any court proceeding.”
Kennedy acknowledged a conversation he had with the
court bailiff asking “to take this case off of the jury trial set-
ting scheduled for March 2-3, 2015,” but Kennedy said he did
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202not during that conversation “indicate that [Lion] did not want
a jury trial, or desired a bench trial.”
McGill’s counsel explained that there had been a telephonic
hearing on November 11, 2014, in which two dates were
offered—one for a jury trial and one for a bench trial. Kennedy
did not know at that time whether Lion wished to waive the
right to a jury trial and said he would find out and get back to
the court within a week to let it know. Kennedy did not do so,
and the bailiff had to attempt several times to contact Kennedy.
Eventually, Kennedy contacted the bailiff, directing the bailiff
to set trial for the bench trial date.
The court explained from the bench and in its order deny-
ing the motion for a jury trial that it had given Lion the choice
between a jury trial to commence on March 2, 2015, or a bench
trial to commence on March 16. Lion selected the bench trial.
The court explained that if it were to continue trial in order to
hold a jury trial, the matter would be delayed for another 5 or
6 months, which would be prejudicial to McGill.
2. Exclusion of Expert Testimony
McGill moved in limine to exclude witnesses based on Lion’s
conduct during discovery and the alleged lack of foundation for
proposed expert testimony. Lion had listed in a “Designation of
Experts,” Mark Markuson III, Craig Moore, and Michael as
the expert witnesses it was formally ­designating and intending
to call at trial. McGill’s amended motion in limine asserted
that while Lion had eventually identified three witnesses as its
experts, Lion had failed to adequately disclose the foundation
and subject matter of their expected testimony.
In Lion’s supplemental answers to McGill’s interrogatories
filed November 25, 2014, Lion identified Michael as a per-
son who has knowledge of any discoverable matter and that
the subject matter on which he has knowledge was of “work
performed, contract, and deficiencies in performing the work.”
Likewise, Markuson was identified as having knowledge “of
work performed and the issues with [McGill’s] deficiencies
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202in performing the work” and Moore was identified as having
knowledge “of work performed and the issues with [McGill’s]
deficiencies in performing the work.”
In response to interrogatories asking for the subject matter
on which each expert was expected to testify, the substance
of the facts and opinions to which the expert is expected to
testify, and a summary of grounds for each opinion the expert
is expected to give, Lion stated with regard to both Markuson
and Moore: “while [he] is expected at trial to give his expert
opinions; he has not been retained as an expert in this matter.
He is both a witness of fact and an expert.” He “will give his
qualified and expert opinions concerning the building” and the
“improper work done” thereon. Markuson and Moore were
each “contacted by [Lion] to inspect and give a bid concern-
ing [McGill’s] deficient work on the subject building.” Each
is a contractor and “has looked over the work performed by
[McGill] and has deemed it sub-standard and the work per-
formed was not in line with the standards of construction in the
Omaha metropolitan area.”
Lion described Michael as having “40 years of experience in
construction.” Michael was expected to testify as to McGill’s
“improper work done on the condominium building.” Lion set
forth that Michael “has looked over the work performed by
[McGill] and has deemed it sub-standard and the work per-
formed was not in line with the standards of construction in the
Omaha metropolitan area.”
At the hearing on the amended motion in limine, McGill
referred to exhibit 5, in which Moore averred that he was not
an expert for Lion or anyone else in the case, had no intention
of voluntarily acting as an expert in the case, and until recently,
had no knowledge that he had been identified as an expert
in the case. Further, Moore averred that he had not formed
any opinions or conclusions contrary to McGill or its work
conducted on the Lion building and that the bid to perform
repair work was not intended to offer opinions or conclusions
regarding McGill or its work on the building. Finally, Moore
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202averred that he lacked knowledge as to what work McGill had
conducted on the Lion building or what work was conducted
by other contractors on the building and was without sufficient
information to formulate any opinions as to the work com-
pleted by McGill as an expert in the case.
McGill also referred to exhibit 4, in which Markuson simi-
larly averred that he never inspected the Lion building for
deficiencies, was not aware of what work McGill or other
contractors had performed on it, was not hired by Lion as an
expert witness in this matter, and had not formed any opin-
ions or conclusions contrary to McGill or its work conducted
for Lion.
When asked about the affidavits of Markuson and Moore,
Lion explained:
I believe the — the better way to classify these individ­
uals is they are . . . contractors, they did come out to give
replacement work, repair work bids for the Lion . . . prop-
erty, and therefore they will testify as factual witnesses as
to basically what they saw. Whether they saw cracking,
whether they saw flaking, whether they saw all that.
....
. . . So we don’t need to designate them as an expert
witness.
Lion explained that a person with specialized knowledge who
is merely testifying as to the work visible to the naked eye is
giving lay testimony.
The court explained that “[t]hey can testify what I did and
what I saw, but if they start giving opinions as to why this
is the situation and what the problem with this is, that’s an
expert.” The court accordingly granted McGill’s motion in
limine in part as to expert testimony by witnesses Markuson
and Moore.
The court denied McGill’s motion in limine to exclude
Michael’s testimony, stating that it would determine during
trial whether Michael had the qualifications to be an expert.
Following trial, the court found that Michael’s testimony
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202revealed that he had no expertise in the work performed by
McGill and did not adequately review the work. Michael did
not know the standard by which to judge the work, the scope
of McGill’s work, what work exactly was done, or what area of
the building McGill performed work on. Therefore, Michael’s
testimony “did not rise to the degree necessary for him to have
an accepted expert opinion as to the work performed.”
3. Evidence Presented at Trial
(a) Richard McGill
At trial, McGill adduced the testimony of Richard McGill
(Richard), who was a co-owner of McGill. Richard testi-
fied that McGill had an agreement with Lion to fix improper
repairs that had been done previously by a different contrac-
tor. Richard explained that he observed that the previous
contractor had not properly prepared the area before doing
“patchwork.”
Richard testified that in 2009, McGill fully completed its
obligations under the contract with Lion. McGill also com-
pleted some additional repairs outside the scope of the contract
without charging for them. Richard supervised McGill’s work
and reviewed the work after completion. He testified that
“[e]verything looked good when we walked away from the
project.” Richard testified that the bill sent to Lion in October
2009 represented less than the value of the work performed and
that McGill never received payment from Lion or any commu-
nications about the bill until the present suit was filed.
Richard testified that they discovered early on the issues
with the prior repair were much worse than anticipated and
“deep repairs” were required. Although Richard observed other
areas of the building’s facade that required work, Richard said
that Lion did not wish to contract McGill to repair those areas,
so McGill’s job was limited to a 600-square-foot area. McGill
attempted to fix as many issues as it could without billing Lion
for them because McGill did not “want to go and leave the new
repairs exposed to wide open areas of deterioration.”
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202Following Lion’s presentation of evidence in support of
its counterclaim, McGill recalled Richard as a rebuttal wit-
ness concerning the scope and quality of the work performed.
Richard described in detail his expertise in the area of masonry
and concrete building restoration, including various profes-
sional certifications and licenses. Richard also described in
more detail the restoration McGill was hired to do at the Lion
building. McGill was hired to “sound test” all the stone on the
building and to repair 400 feet of stone on the south side. The
repair extended around the building to the east side only, “[o]n
the one little corner.” McGill did not use concrete in its repairs,
but, rather, “Thoropatch.” McGill used lasers to determine the
ambient temperature and never applied the product below its
specified ambient temperature.
Richard opined within a reasonable degree of certainty,
based on his training, education, and experience, that McGill
met the standard for the skill and knowledge of those in the
masonry restoration trade when it conducted work on the Lion
building in 2009. Richard explained that McGill did every-
thing that it was hired to do. Richard again explained that he
discovered that there “were far more extensive issues than
[McGill] thought” and advised Lion of that fact. McGill there-
after “modified the scope to go and accomplish what we could
accomplish with the money that they had.”
Richard testified that he advised Lion of other things that
needed to be done in the future to protect the south elevation
and complete the work on the east elevation, which Richard
testified McGill never touched. Richard testified that he would
expect deterioration of the Lion building since 2009 if Lion
had failed to hire out further repairs. Richard explained that
the “majority of the work that was completed by the previ-
ous contractor was never addressed” through Lion’s contract
with McGill and “[McGill knew that that was defective.”
Further, McGill had “pointed out many other areas that needed
to be addressed in order to protect the work that was being
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.
Cite as 309 Neb. 202repaired.” Because Lion did not wish to hire anyone to make
those repairs,
water would have continued to get back behind the newly
patched materials and the new areas would begin to start
falling apart and the already loose materials would con-
tinue to deteriorate. And as more and more water got
in there and more and more freeze-thaw cycles happened
in the winter, the amount of water turning to ice in there
would continue to grow, and at some point there would be
large pieces starting to fall off of the building.
Richard testified that the presence of cracks in the stone of
the exterior of the Lion building did not necessarily indicate
the applicator had failed to meet industry standards. Richard
explained that a lot of different things can cause cracks, includ-
ing shrinkage and movement, some of which may occur no
“matter what was put in there, who put that in there.” Richard
summarized, “a crack may be just a crack or a crack may be
evidence of a problem.”
Richard testified that he had recently looked at the Lion
building. It appeared to him that the south side looked much
better than the east side. Further, on the south side, the areas
that McGill had concentrated on looked much better than the
areas that McGill did not concentrate on. On cross-­examination,
Richard was presented with photographs of the Lion building’s
facade taken during and after McGill’s repair work and entered
into evidence by Lion, which showed obvious deterioration.
Richard did not recognize any of the areas represented in the
photographs as places McGill was hired to perform repair
work on.
(b) Trevor Henery
Lion called Trevor Henery (Trevor), who was the presi-
dent of Lion in 2009 and the operator of a pub in the Lion
building. He was present in certain meetings with McGill to
discuss the contract with McGill and the nature of the work
it was to perform. Trevor described it as “tuck pointing work
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Cite as 309 Neb. 202[involving] the south side for sure.” He did not recall “the
particular scope [of the work to be performed] over the whole
building.”
After McGill completed the work, Trevor observed crack-
ing, peeling, and flaking on parts of the Lion building. As
of the date of trial, Trevor described the building as being
in “bad shape,” explaining that “[w]e had to have quite a bit
of material taken off of the building because of the danger it
presented to people on the sidewalk, and it cost quite a bit of
money to do that.”
(c) Brandon Henery
Brandon Henery (Brandon), who was the secretary and
treasurer of Lion and the manager of the restaurant on the
main floor of the Lion building, also testified on Lion’s behalf.
Brandon testified he was not a member of the board at the time
negotiations took place with McGill or when McGill performed
work on the building, but had since familiarized himself with
the situation.
Brandon testified that in November or December 2009,
shortly after McGill completed its work on the Lion build-
ing, pieces of stone fell off on its east side. Brandon had seen
McGill working on both the south and east sides of the build-
ing and had noticed building scaffolding around the southeast
corner. The pieces falling off the building were initially small,
but in 2014, a piece the size of a manhole cover fell off the east
side of the building.
Subsequent to that incident, Brandon obtained bids to repair
the facade. Brandon testified that Markuson performed some
repair work, “but they decided that they did not want to
continue with it,” and that thereafter, Western Waterproofing
Company (Western) finished the repair work.
(d) Mark Markuson III
Lion called Markuson, who was the owner of Markuson
Construction. The court sustained McGill’s renewed objection
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Cite as 309 Neb. 202to any expert testimony concerning the quality of McGill’s
work. McGill’s counsel argued that if Markuson were allowed
to walk the court through his repair bid, it would become
evident the same exact work McGill did had to be replaced
by another contractor, and that therefore, implicitly, the work
was done improperly. The court, however, found any proposed
expert testimony lacking in foundation unless it was clear
that Markuson proposed a bid to repair the work that McGill
improperly conducted. The court explained, “Just because
McGill did work on the business, this guy did a bid on the
business, but that doesn’t mean that he’s doing a bid on the
work that McGill did.” The court also sustained McGill’s
objection to Markuson’s testimony as a fact witness concern-
ing “factual observations as to what he saw,” explaining that
what Markuson “saw and why he saw it all comes about
because he’s an expert looking into this and making a bid on
that matter.”
Lion made an offer of proof as to Markuson’s excluded
testimony as follows: “[E]ven if . . . Markuson’s bid does not
get into the record[,] Markuson can testify as a lay witness, a
factual witness, as to his observations of the building, what he
saw needed repaired, and his conclusions as to what was neces-
sary to rectify that.”
On cross-examination, Markuson testified that McGill had
an excellent reputation in the industry.
(e) Craig Moore
Lion next called Moore, who was a project manager at
Western. Moore had worked at Western for the past 11⁄2 years.
Moore testified that he gave a bid for a project at the Lion
building in May 2014.
When asked about the nature of the work he provided a
bid for, McGill renewed the objections that were the subject
of its motion in limine. Noting exhibit 5, the court ruled that
Moore’s testimony was to be limited to that of a fact witness
as to the work that he performed. Moore was not to testify as
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Cite as 309 Neb. 202to any deficiencies in McGill’s work. Also, Moore was not
allowed to testify concerning the cost of the bid and whether it
was fair and reasonable, because that requires an expert’s opin-
ion. Lion did not make an offer of proof concerning Moore’s
excluded testimony.
Moore was permitted to testify that Western performed
work on the east side of the Lion building. Brandon instructed
Western to peel off all the loose stone material off the east
facade above the first floor. Workers took approximately 1
week to finish the contracted-for work.
On cross-examination, Moore testified that McGill is one of
the best known local restoration companies and that its “cus-
tomers are usually satisfied with [McGill’s] work.”
(f ) Michael Henery
Michael testified for Lion, stating that he was its president
for the past year and associated with it for the previous 20
years as the Lion building’s co-owner. Michael described that
McGill was hired to fix faulty work performed by the previous
contractor, which involved frozen concrete that was peeling
off the building. McGill was to remove the concrete that was
installed improperly, to “get to the bottom of it and replace it
with a material that would adhere to the building so the build-
ing could be restored.”
Michael testified that he had an opportunity to observe from
ground level some of the work while McGill performed it. He
also inspected the property, from ground level, subsequent to
McGill’s performing the work. The Lion building is five stories
high. Michael testified to his observations of what he described
as McGill’s short workdays, scaffolding in disarray, and pour-
ing what he believed to be concrete when it was freezing at
night. Michael testified that McGill’s work was not performed
in a workmanlike manner, because it poured concrete when it
would freeze before having fully set, which resulted in pieces
later falling off the building. Michael testified he observed on
mornings after freezes that the concrete poured the day before
had cracked.
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Cite as 309 Neb. 202In laying foundation for his expert testimony, Michael
described his experience in concrete work and as a home-
builder, stating he was familiar with all phases of construction.
Michael described that he started a business in grading and
landscaping in 1959, and “through that first eight or nine years,
I achieved the knowledge to do concrete work.” Thereafter,
from 1968 to 1981, he was in the housebuilding business. After
that, he was vice president of an excavating company, as well
as engaged in the restaurant and real estate businesses. He has
owned numerous commercial properties.
During voir dire, Michael testified that he had not conducted
any testing in connection with the case, has never publicly
declared himself an expert in restoration work, and did not hold
any specific license or certificates relating to restoration work.
On cross-examination, Michael testified he was not a mem-
ber of any organizations or institutes involving the masonry
restoration industry and did not know what the prominent
organizations are for the masonry restoration field. He was not
an approved applicator for any masonry restoration materials.
His experience in masonry work primarily involved a 3-month
period in 1959.
Michael testified that he did not know the standards of peo-
ple in the concrete and masonry restoration industry in 2009.
And he did not know what products McGill used in its work
for Lion. Michael was not involved in the contract negotiations
with McGill and did not know the scope of the work McGill
agreed to undertake. Still, Michael testified that whatever
McGill had done or however McGill had done it, the work
was not in his estimation done in the proper way—because “it
didn’t stick on the building [and] fell off.”
4. Exclusion of Exhibit 34
and Related Testimony
Before trial, the court had granted McGill’s motion in
limine pursuant to Neb. Rev. Stat. § 27-408 (Reissue 2016)
to exclude any communications in compromise negotiations.
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Cite as 309 Neb. 202The court sustained McGill’s objection at trial to the introduc-
tion of exhibit 34 on the grounds that it was a compromise
negotiation. Exhibit 34 was a letter from McGill to Lion. At
trial, the court also sustained McGill’s objections to testimony
concerning what was said during the meeting referred to in
the letter.
In the letter, Richard, on behalf of McGill, states that “[p]er
our meeting, I submit the following information in an attempt
to resolve the issues between McGill . . . and Lion . . . .”
Thereafter, Richard recognized in the letter:
[T]here are some warranty repair work that we would
have completed, had a warranty gone into effect. In
attempt to compromise and resolve the lawsuit between
us, McGill . . . will complete the “warranty work” at no
additional cost to [Lion] after we are paid the full amount
that is currently due and owing.
Richard further explained in the letter that “[a]s the first step
to begin work on the building,” he would have certain experts
view the failed areas and obtain recommendations from them
for the best repair methods. He also outlined procedures to
limit interference with the business traffic of the building and
to get the repairs done quickly. He closed with, “Please review
this with the board of directors and hopefully we can resolve
this issue.”
The meeting referred to in the letter took place in front of
the Lion building in the fall of 2011, after Lion’s complaint
had been filed, and was organized by McGill’s counsel. Both
McGill’s counsel and Lion’s counsel, Kennedy, were present.
Also present were Richard and Trevor. The meeting lasted
about 20 minutes.
5. Verdict
At the close of McGill’s case, Lion moved for a directed
verdict against McGill on its breach of contract claim. Lion
did not renew its motion at the close of all the evidence.
Lion argued that the discussion between the parties of “all
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Cite as 309 Neb. 202the different numbers” and “all the different square footages”
demonstrated there was never a true meeting of the minds
to form a contract in the first instance. The court denied the
motion. Following 3 days of trial, the judge, as the trier of
fact, found in favor of McGill in its breach of contract action
and entered judgment in its favor. In a subsequent order, the
court explicitly found against Lion in its counterclaims and
dismissed them.
The court specifically found that repairs by another contrac-
tor had been done on the building before entering into any
agreement with McGill. Lion had been dissatisfied with those
repairs and subsequently entered into an oral agreement with
McGill to conduct repairs for $25,000. McGill completed the
work by October 2009, and despite additional work being
done outside of the original agreement, McGill sent an invoice
to Lion for the original bid amount of $25,000. Lion refused
to pay the invoice. There were no complaints about the work
until about 3 years later.
The court found that McGill completed the work properly
and in a workmanlike manner, that the work completed was
necessary, and that McGill complied with the terms and con-
ditions of the contract it had with Lion. The court noted that
Lion provided no expert testimony to support its defenses that
the work performed by McGill was improper, unnecessary, or
performed in an unworkmanlike manner.
6. Prejudgment Interest
The judgment in favor of McGill was in the amount of
$25,000, plus prejudgment interest at a rate of 12 percent per
year commencing November 1, 2009, for a total prejudgment
interest amount of $38,875.
7. Attorney Fees
Following a separate hearing, the court additionally awarded
McGill attorney fees. McGill’s counsel pointed out at the hear-
ing on the motion that the case began in 2011 with a simple
collection case that McGill filed in county court. Lion filed
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Cite as 309 Neb. 202a counterclaim that moved the case to district court and that
required expert testimony, especially with regard to Lion’s
counterclaims. McGill’s attorney argued that in the many years
before a trial finally took place, Lion had plenty of opportunity
to realize it did not have an expert to support its cause of action
and that it would therefore fail.
In its order granting the fees, the court observed that there
was a considerable discovery process and that the case was
submitted to the court for various motions, including Lion’s
attorney’s motion to withdraw, which the court granted, and
Lion’s motion to disqualify McGill’s attorney, which the court
denied. The court found that Lion was liable for attorney fees,
because its defense and counterclaim were frivolous due to
the fact that it proceeded to trial without a legitimate expert.
Without an expert, the court explained, “there was no way
[Lion] could be successful in this matter, which [Lion] knew or
should have known.” The court found that all actions taken by
Lion on and after February 2, 2015, were frivolous.
McGill introduced an affidavit outlining $14,000 in attorney
fees in relation to the defense of Lion’s counterclaim, begin-
ning in September 2011. Approximately $5,000 in fees and
expenses were itemized as incurred after February 2015. The
court awarded McGill $5,920 in attorney fees, representing 34
hours of time expended by McGill’s attorney in the litigation of
this case and the resulting judgment.
III. ASSIGNMENTS OF ERROR
Lion assigns that the district court erred in (1) excluding
testimony from witnesses Lion had designated as fact and
expert witnesses; (2) concluding Lion needed expert witness
testimony to respond to or rebut McGill’s claims; (3) deny-
ing the admission of exhibit 34 and preventing trial counsel
from making further inquiry relative to exhibit 34; (4) entering
judgment in the amount of $25,000; (5) awarding prejudg-
ment interest at the rate of 12 percent per year commencing
November 1, 2009; (6) finding that the defense of Lion was
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Cite as 309 Neb. 202frivolous and awarding attorney fees; and (7) denying Lion a
jury trial.
IV. STANDARD OF REVIEW
[1] In a bench trial of a law action, a trial court’s factual
findings have the effect of a jury verdict and will not be set
aside on appeal unless clearly wrong. 1
[2] After a bench trial of a law action, an appellate court
does not reweigh evidence, but considers the evidence in the
light most favorable to the successful party and resolves evi-
dentiary conflicts in favor of the successful party. 2
[3] Judicial discretion is allowed to determine the relevancy
of evidence, and such determination will not be disturbed on
appeal unless it constitutes an abuse of discretion. 3
[4,5] We review de novo whether the trial court applied the
correct legal standards for admitting an expert’s testimony, but
a trial court’s ruling in receiving or excluding an expert’s tes-
timony which is otherwise relevant will be reversed only when
there has been an abuse of discretion. 4 Stated another way, we
review de novo whether the trial court applied the correct legal
standards for admitting an expert’s testimony, and we review
for abuse of discretion how the trial court applied the appro-
priate standards in deciding whether to admit or exclude an
expert’s testimony. 5
[6] Generally, the control of discovery is a matter for judicial
discretion, and decisions regarding discovery will be upheld on
appeal in the absence of an abuse of discretion. 6
1
Maloley v. Central Neb. Pub. Power & Irr. Dist., 303 Neb. 743, 931
N.W.2d 139 (2019).
2
Id.3
Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020).
4
Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019).
5
Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015),
disapproved on other grounds, Weyh v. Gottsch, 303 Neb. 280, 929
N.W.2d 40 (2019).
6
Yeransian v. Willkie Farr, 305 Neb. 693, 942 N.W.2d 226 (2020).
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Cite as 309 Neb. 202[7] A judicial abuse of discretion exists when a judge, within
the effective limits of authorized judicial power, elects to act or
refrain from acting, but the selected option results in a decision
which is untenable and unfairly deprives a litigant of a substan-
tial right or a just result in matters submitted for disposition
through a judicial system. 7
[8] The amount of damages to be awarded is a determination
solely for the fact finder, and the fact finder’s decision will not
be disturbed on appeal if it is supported by the evidence and
bears a reasonable relationship to the elements of the dam-
ages proved. 8
[9,10] On appeal, a trial court’s decision awarding or deny-
ing attorney fees will be upheld absent an abuse of discretion. 9
When an attorney fee is authorized, the amount of the fee is
addressed to the discretion of the trial court, whose ruling
will not be disturbed on appeal in the absence of an abuse of
discretion. 10
V. ANALYSIS
[11-14] Lion appeals the judgment against it for breach of
contract. As a contract consists of a binding promise or set
of promises, a breach of contract is a failure, without legal
excuse, to perform any promise that forms the whole or part
of a contract. 11 To successfully bring an action on a contract,
a plaintiff must first establish that the plaintiff substantially
performed the plaintiff’s obligations under the contract. 12 It
is well recognized that, as a general rule, every contract for
work or services includes an implied duty to perform the work
7
Dick v. Koski Prof. Group, 307 Neb. 599, 950 N.W.2d 321 (2020).
8
TNT Cattle Co. v. Fife, 304 Neb. 890, 937 N.W.2d 811 (2020).
9
Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).
10
Id.11
23 Richard A. Lord, A Treatise on the Law of Contracts by Samuel
Williston § 63:1 (4th ed. 2018).
12
VRT, Inc. v. Dutton-Lainson Co., 247 Neb. 845, 530 N.W.2d 619 (1995).
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Cite as 309 Neb. 202or services skillfully, carefully, diligently, and in a workman-
like manner. 13 In a “workmanlike manner” connotes work in
the same manner that a person skilled in doing such work
would do it, and in a manner generally considered skillful by
those capable of judging such work in the community of the
performance. 14
Lion challenges the district court’s rulings excluding certain
testimony of Markuson and Moore concerning what they did,
what they observed, and their bids or invoices, which Lion
argues constituted relevant lay testimony to show McGill’s
work was not performed in a workmanlike manner. Lion gener-
ally asserts that the district court was wrong in reasoning that
Lion needed expert testimony to establish that McGill’s work
was done in an unworkmanlike manner. However, Lion also
argues the court erred in “strik[ing]” and “not giv[ing] any
consideration” to the expert testimony of Michael that McGill’s
work was not done in a workmanlike manner. 15 Lion argues
that the court erred in excluding evidence relating to the 2011
meeting as compromise negotiations. Lion also asserts that its
right to a jury trial was violated and that the district court erred
in awarding McGill prejudgment interest and attorney fees. We
address each of these arguments in turn.
1. Jury Trial
[15,16] The right to a jury trial is guaranteed by Neb. Const.
art. I, § 6. The court found that Lion had waived the right
13
Pioneer Enterprises v. Edens, 216 Neb. 672, 345 N.W.2d 16 (1984).
14
See, Burnett & Bean v. Miller, 205 Ala. 606, 88 So. 871 (1921); Brown
v. Eakins, 220 Or. 122, 348 P.2d 1116 (1960); Sundance Develop., Inc. v.
Standard Lbr. & Hard. Co., 520 P.2d 1056 (Colo. App. 1974); McKinley
v. Brandt Constr., Inc., 168 Ohio App. 3d 214, 859 N.E.2d 572 (2006);
Flying J Inc. v. Meda, Inc., 373 S.W.3d 680 (Tex. App. 2012). See, also,
Schwarz v. Platte Valley Exterminating, 258 Neb. 841, 606 N.W.2d 85(2000); Helterbrand v. Five Star Mobile Home Sales, 48 S.W.3d 649 (Mo.
App. 2001).
15
Brief for appellant at 20.
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Cite as 309 Neb. 202to a jury trial and that McGill would be prejudiced if the court
were to allow Lion to withdraw that waiver. A waiver of a
jury trial in district court is statutorily governed by § 25-1126,
which provides an exclusive list of the manners in which a
waiver occurs. 16 Relevant here is § 25-1126(3), “by oral con-
sent in open court entered on the journal.”
During the hearing on February 13, 2015, Lion’s new coun-
sel affirmed that the trial would be to the bench, stating,
“That’s correct, Your Honor.” Lion’s withdrawing counsel,
Kennedy, who was also present and participating in the conver-
sation, appeared to be in agreement.
[17,18] Lion does not argue on appeal that its new attorney
who entered an appearance at the hearing did not actually rep-
resent it, and the right of an attorney to enter an appearance
for a party can be called in question only by the party. 17 In any
event, when an attorney appears in an action as the representa-
tive of a party to the action, the presumption of the law is that
the attorney appears by the authority of the party whom the
attorney assumes to represent. 18
[19-21] A client is bound by the acts, omissions, neglect,
and fraud of the client’s attorney if such conduct is within the
attorney’s scope of express, implied, apparent, or ostensible
authority. 19 From the nature of the attorney-client relation-
ship itself, a lawyer derives authority to manage the con-
duct of litigation on behalf of a client, including the author-
ity to make certain procedural or tactical decisions. 20 That
authority is not absolute; it does not, for example, encompass
settlement of a claim without a client’s specific consent or
silence in open court. 21 But it encompasses the choice, in
16
See Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).
17
Baldwin v. Foss, 14 Neb. 455, 16 N.W. 480 (1883).
18
See Cave v. Reiser, 268 Neb. 539, 684 N.W.2d 580 (2004).
19
See VRT, Inc. v. Dutton-Lainson Co., supra note 12.
20
Luethke v. Suhr, 264 Neb. 505, 650 N.W.2d 220 (2002).
21
See id.- 226 -
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Cite as 309 Neb. 202a civil action as opposed to a criminal action, 22 to waive a
jury trial. 23
In arguing that it did not waive its right to a jury trial, Lion
offers only the conclusory statement that “there is no record of
any ‘oral consent in open court entered on the journal’ attesting
to any waiver of a jury trial by [Lion].” 24 We find, however,
that the explicit statement of Lion’s new counsel in open court
that it was correct that they would be having a bench trial
qualified as consent to a bench trial. And, in an order filed on
March 3, 2015, the court found that Lion’s counsel had waived
the right to a jury trial. This qualified as having been entered
on the journal. Lion waived its right to a jury trial pursuant
to § 25-1126(3).
The court has discretion to permit an application to with-
draw the waiver if it is timely made and has not been acted
on to the prejudice of another party. 25 The district court here
found that to allow Lion to withdraw its waiver would delay
the matter and prejudice McGill. An abuse of discretion occurs
when a trial court’s decision or reasoning is clearly untenable,
unfairly depriving a litigant of a substantial right and deny-
ing just results in matters submitted for disposition. 26 We find
22
See Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987(1983) (decisions in criminal case of whether to plead guilty, whether to
waive jury trial, whether to testify, and whether to appeal are fundamental
and personal to defendant; almost all other decisions are considered
strategic or tactical decisions and fall within lawyer’s control).
23
See id. See, also, Middleton v. Stavely, 124 Colo. 88, 235 P.2d 596 (1951);
McLyman v. Miller, 52 R.I. 374, 161 A. 111 (1932); Smith v. Barnes, 9
Misc. 368, 29 N.Y.S. 692 (N.Y. Sup. 1894); Beal v. Doe, 987 S.W.2d 41(Tenn. App. 1998). But see, Blanton v. Womancare, Inc., 38 Cal. 3d 396,
696 P.2d 645, 212 Cal. Rptr. 151 (1985); Graves v. P. J. Taggares Co., 94
Wash. 2d 298, 616 P.2d 1223 (1980).
24
Brief for appellant at 35.
25
Jacobson v. Shresta, supra note 16. See, also, McKinney v. County of Cass,
180 Neb. 685, 144 N.W.2d 416 (1966).
26
Jaeger v. Jaeger, supra note 3.
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Cite as 309 Neb. 202that the district court did not abuse its discretion in refusing to
allow Lion to withdraw its waiver.
2. Exclusion of Exhibit 34
Turning to the trial, we address Lion’s argument that the
court erred in excluding exhibit 34 and in excluding testimony
relating to Richard’s statements made in the meeting referred
to in exhibit 34. The court found that the exhibit and the
testimony at issue were inadmissible under § 27-408, which
governs compromise and offers to compromise. Lion asserts
Richard’s statements at the meeting and in the letter were
admissible “for another purpose,” pursuant to § 27-408, as
either (1) admissions against interest that the work was done
in an unworkmanlike manner or (2) to impeach Richard’s tes-
timony that the work had been done in a workmanlike manner
and that $25,000 was reasonable for the work performed.
[22] If a statement violates the Nebraska Evidence Rules
governing compromise and offers to compromise, a trial court
does not have discretion to admit the statement. 27 However, a
court’s determination of preliminary questions of fact condi-
tioning the applicability of the exclusionary rule set forth in
§ 27-408 are reviewed for clear error. 28
Section 27-408 provides:
Evidence of (1) furnishing or offering or promising
to furnish, or (2) accepting or offering or promising
to accept, a valuable consideration in compromising or
attempting to compromise a claim which was disputed as
to either validity or amount, is not admissible to prove
27
See Pribil v. Koinzan, 11 Neb. App. 199, 647 N.W.2d 110 (2002), reversed
on other grounds 266 Neb. 222, 665 N.W.2d 567 (2003).
28
See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011). See, also,
Pierce v. F.R. Tripler & Co., 955 F.2d 820 (2d Cir. 1992); Affiliated Mfrs.,
Inc. v. Aluminum Co. of America, 56 F.3d 526 (3d Cir. 1995); Trans
Union Credit Info. v. Assoc. Credit Services, 805 F.2d 188 (6th Cir. 1986);
E.E.O.C. v. Gear Petroleum, Inc., 948 F.2d 1542 (10th Cir. 1991); First
Interstate Bank of Billings v. U.S., 61 F.3d 876 (Fed. Cir. 1995).
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Cite as 309 Neb. 202liability for or invalidity of the claim or its amount.
Evidence of conduct or statements made in compromise
negotiations is likewise not admissible. This rule does
not require the exclusion of any evidence otherwise dis-
coverable merely because it is presented in the course of
compromise negotiations. This rule also does not require
exclusion when the evidence is offered for another pur-
pose, such as proving bias or prejudice of a witness, nega-
tiving a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.
(Emphasis supplied.)
[23,24] The inadmissibility of evidence of negotiations and
compromise or settlement of a claim reflects a public policy
consideration favoring compromise of disputes. 29 Furthermore,
evidence of negotiations and compromise or settlement of a
claim is irrelevant because the transaction is motivated by a
desire for peace rather than from the strength or weakness of a
claim. 30 The exclusion set forth in § 27-408 extends to settle-
ments, negotiations, and offers to compromise made by either
of the parties with or to third persons concerning a cause of
action relative to the same transaction or same subject mat-
ter involved in the litigation at hand. 31 The exclusion set forth
in § 27-408 does not distinguish between offers to settle and
admissions of fact made during settlement negotiations. 32
At trial, Richard explained there was a meeting in front of
the Lion building in the fall of 2011. The meeting was orga-
nized by his trial counsel. It was undisputed that at the time of
the meeting, the complaint against Lion by McGill had been
filed. In the letter marked as exhibit 34, Richard, on behalf of
McGill, states that “[p]er our meeting, I submit the following
29
See Baker v. Blue Ridge Ins. Co., 215 Neb. 111, 337 N.W.2d 411 (1983).
30
See id.31
See id.32
See Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652 (4th Cir. 1988).
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Cite as 309 Neb. 202information in an attempt to resolve the issues between McGill
. . . and Lion . . . .” (Emphasis supplied.) Richard then
acknowledged to Lion its obligations to complete “warranty
repair work . . . had a warranty gone into effect” and offered
to begin such work within 2 days of receiving the payment it
considered due for the work it had completed.
Kennedy testified that the purpose of the meeting was “so
the parties actually have the ability to go through what was
wrong with the building.” Trevor testified that the purpose
of the fall 2011 meeting with Richard that was arranged by
McGill’s counsel was to “see if we could get some deficien-
cies fixed.” Trevor denied that the purpose of the meeting
was for “any sort of settlement.” According to Kennedy, there
were no specific offers of settlement made during the meeting
and Richard had made admissions that warranty work should
have been done on the property. Nevertheless, in his affidavit,
Kennedy also stated that Richard, during the meeting, “stated
he would not perform any work without being paid in full, but
was open to compromising on the matter after an inspection of
the [Lion building].”
Whether a particular writing, conduct, or statement is made
in or a product of compromise negotiations is largely a ques-
tion of fact. 33 We find that the district court did not clearly err
in determining that Richard’s statements concerning the condi-
tion of the building, its possible causes, and an offer to conduct
warranty repairs were statements made during, or a product of,
compromise negotiations. Further, we find that the court did
not err in determining that the letter contained in exhibit 34
was an attempt to compromise a disputed claim.
The letter and statements Lion sought to adduce were not
evidence otherwise discoverable and excluded merely because
they were presented in the course of compromise negotiations.
Section 27-408 mirrors the original version of Fed. R. Evid.
33
See, Goon v. Gee Kung Tong, Inc., 544 A.2d 277 (D.C. App. 1988); J.C.
Compton Co. v. Brewster, 185 Or. App. 382, 59 P.3d 1288 (2002).
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Cite as 309 Neb. 202408, which became effective in 1975. In enacting federal rule
408, the statement that the rule does not require exclusion of
any evidence otherwise discoverable merely because it is pre-
sented in the course of compromise negotiations was added
to ensure that evidence, such as documents, were not immu-
nized from admissibility by being strategically presented in the
course of compromise negotiations. 34 This provision of federal
rule 408 also ensures that a fact presented during compromise
negotiations is not immunized from admissibility if that fact
sought to be presented at trial was obtained from sources
independent of the compromise negotiations. 35 The statements
at issue were not obtained from sources independent of the
compromise negotiations and were not documents that merely
happened to be presented during compromise negotiations.
Instead, they were part and parcel of the attempt to compro-
mise a disputed claim.
We find no merit to Lion’s argument that the evidence
did not fall under the exclusionary rule of § 27-408 because
it was admissible for “another purpose.” Lion describes this
other purpose as either an admission against interest regarding
whether McGill performed the work in a workmanlike manner
or impeachment of Richard’s testimony that the work was done
in a workmanlike manner and that the contract price was rea-
sonable for the work performed.
[25] It has long been recognized that to use conduct or state-
ments in compromise negotiations for impeachment would
tend to swallow the exclusionary rule and impair the public
policy of promoting settlements; therefore, admissibility as an
inconsistent statement does not fall under the “another pur-
pose” exception to the exclusionary rule of § 27-408. 36 In fact,
amendments to federal rule 408(a) in 2006 explicitly clarify
34
See 3 Michael H. Graham, Handbook of Federal Evidence § 408:1 (9th ed.
2020).
35
See id.
36
See 2 McCormick on Evidence § 266 (8th ed. 2020).
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Cite as 309 Neb. 202that conduct or statements made in settlement negotiations are
not admissible for “another purpose” to impeach a prior incon-
sistent statement. As one authority has explained, “The use of
inconsistent statements made in compromise negotiations for
general impeachment of the testimony of a party is fraught
with danger of misuse of the statements to prove liability,
threatens frank interchange of information during negotiations,
and generally should not be permitted.” 37
[26] Similarly, an admission against interest concerning an
element of the disputed claim is not an exception to the general
inadmissibility of conduct or statements made in settlement
negotiations. 38 Allowing such an exception would swallow the
exclusionary rule premised on the idea that settlement nego-
tiations would be inhibited if the parties knew that statements
made in the course of compromise negotiations might later be
used against them as admissions of liability. 39
The statements at issue directly concerned elements of
McGill’s cause of action and of its defense to Lion’s counter-
claims. They were made in the course of compromise nego-
tiations for the purpose of reaching an agreement that would
avoid litigation. Regardless of whether they would otherwise
qualify as admissions against interest or impeachment, ques-
tions we need not decide here, they fell under the exclusionary
rule of § 27-408. The court did not err in excluding exhibit
34. Nor did the court err in excluding witness testimony as
to statements Richard made during the 2011 meeting between
the representatives of Lion and McGill and their respec-
tive attorneys.
37
Id., § 266 at 356.
38
See Idaho State Bar v. Frazier, 136 Idaho 22, 28 P.3d 363 (2001). See,
also, Matter of Estate of Ruediger, 83 Wis. 2d 109, 264 N.W.2d 604(1978).
39
See U. S. v. Contra Costa County Water Dist., 678 F.2d 90 (9th Cir. 1982).
See, also, Central Soya Co., Inc. v. Epstein Fisheries, Inc., 676 F.2d 939(7th Cir. 1982); Hulter v. C.I.R., 83 T.C. 663 (1984).
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Cite as 309 Neb. 2023. Exclusion of Markuson’s and
Moore’s Testimony
Lion next argues that the district court erred in limiting
Markuson’s and Moore’s allegedly lay testimony. Lion does
not argue that Markuson and Moore were expert witnesses
and that the court erred in disallowing their expert testimony;
Lion affirmatively asserts that they “were not experts.” 40 Lion
asserts that the testimony should have been allowed in these
witnesses’ capacity as fact witnesses concerning what they did,
what they observed, and their bids or invoices. Lion asserts
such testimony was helpful to a clear understanding of “why
was a bid to redo work recently performed appropriate, or why
it was necessary to perform concrete repairs and what the rea-
sonable charges for such repairs would be.” 41
[27] We note that while Lion also argues that the district
court erred in excluding exhibits 36 through 38, which con-
tained Markuson’s and Moore’s bids, Lion does not assign the
exclusion of those exhibits as error. In order to be considered
by an appellate court, the party asserting the alleged error must
both specifically assign and specifically argue it in the party’s
initial brief. 42
At trial, the court sustained McGill’s objections to
Markuson’s and Moore’s testimony as to any alleged defi-
ciencies in McGill’s work and the cost of their bids. Their
testimony would be limited to describing the work they per-
formed. Moore thereafter testified that Western peeled off all
loose stone material from the east facade above the first floor.
Markuson effectively did not testify.
While Lion made an offer of proof concerning Moore’s
bid and a companion document of his general observations
and recommendations for repair, which were contained in
exhibits 36 and 37, Lion did not make an offer of proof as to
40
Brief for appellant at 17.
41
Id. at 19.
42
Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
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Cite as 309 Neb. 202Moore’s testimony. Concerning Markuson’s testimony, Lion
made an offer of proof that, as a lay witness, Markuson would
testify “as to his observations of the building, what he saw
needed repaired, and his conclusions as to what was necessary
to rectify that.”
Under Neb. Rev. Stat. § 27-103 (Reissue 2016), error may
not be predicated upon a ruling which admits or excludes evi-
dence unless a substantial right of the party is affected and,
where the ruling is one excluding evidence, the substance of
the evidence was made known to the judge by offer or was
apparent from the context within which questions were asked.
It appears from the context that the excluded testimony by
Moore was similar to that outlined in the offer of proof for
Markuson—the amount of the bids and the deficiencies that
created a need for their repairs.
Judicial discretion is allowed to determine the relevancy
of evidence, and such determination will not be disturbed on
appeal unless it constitutes an abuse of discretion. 43 We con-
clude that the district court did not abuse its discretion.
In limiting the testimony, the court relied less on the discov-
ery sanction and more on the fact that it found Markuson and
Moore lacked foundation to opine on whether McGill’s work
was deficient or that the bids were a reflection of the costs to
repair McGill’s deficient work. The court explained that there
was no evidence Markuson and Moore had proposed bids to
repair the repair work done by McGill. To the contrary, both
witnesses had averred that they were unaware of what work
had been done by prior contractors and had not formed any
opinions or conclusions concerning McGill’s prior work for
Lion, because they lacked sufficient information to do so.
Lion did not contest this point but believed that the court
could piece together an inference of deficient performance
through a combination of Markuson’s and Moore’s testimonies
and the other evidence in the case. The combined evidence,
43
Jaeger v. Jaeger, supra note 3.
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Cite as 309 Neb. 202according to Lion, would show that “the same exact work that
McGill did had to be replaced by another contractor and, there-
fore, implicitly the work was done improperly.”
[28] But ultimately, there was little other evidence presented
at trial that adequately demonstrated the work Markuson and
Moore were asked to fix was the same work done by McGill
previously. Richard testified that the work Lion contracted
them for was limited to a 600-square-foot area mainly on the
east side that extended in one small corner on the south side.
While numerous photographs were admitted into evidence
showing deterioration of the building’s facade, Richard did not
recognize any of the areas photographed as areas McGill was
hired to perform work on. Brandon testified that stone later fell
off the east side of the building, but he was not privy to what
precise area McGill had been hired to work on. Trevor testified
as to his observations of cracking, peeling, and flaking on the
Lion building’s facade, which was a danger to the public, and
he said that it “cost quite a bit of money” to have that mate-
rial removed, but he did not recall the particular scope of the
work McGill was hired to perform. Evidence of a deficiency
is immaterial without the identity of the person charged with
responsibility for the work. 44
In addition to the lack of evidence clearly connecting the
600-foot area McGill was contracted to repair with the evi-
dence of general failures of the facade, it was, as we discuss
next, outside the scope of ordinary experience to determine
whether the failures of the facade demonstrated McGill’s poor
workmanship or were attributable to some other cause.
4. Need for Expert Testimony and Whether
Michael’s Testimony Qualified
Lion generally assigns and argues that the court erred in
entering judgment against it and, in doing so, determining it
could not prove McGill acted in an unworkmanlike manner
44
See Mitchell v. Eyre, 190 Neb. 182, 206 N.W.2d 839 (1973).
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Cite as 309 Neb. 202without expert testimony. This error, argues Lion, was com-
pounded by the court’s order “strik[ing]” Michael’s expert
testimony. 45
[29,30] Findings of fact as to technical matters beyond the
scope of ordinary experience are usually not warranted in
the absence of expert testimony supporting such findings. 46
Whether a skilled contractor breached a contract to render
services in the practice of the trade by failing to conduct
the work in a workmanlike manner depends on whether the
contractor exercised the skill and knowledge normally pos-
sessed by members of the trade in good standing in similar
communities. 47
[31] Ordinarily, the standard of care for the rendering of
serv­ices in the practice of a trade is outside the common
knowledge and experience of ordinary persons and must,
therefore, be established by expert testimony. 48 Nevertheless,
Lion argues that the facts of this case are akin to a situation
where, for example, someone contracts for a leaking roof
and the roof continues to leak immediately after the repairs.
Making arguments reminiscent of the negligence doctrine of
res ipsa loquitur, 49 Lion asserts that the failure to perform in
a workman­like manner in such a scenario is not beyond the
comprehension of lay people and that no expert testimony is
required to prove breach of contract.
45
Brief for appellant at 20.
46
Roskop Dairy v. GEA Farm Tech., supra note 5.
47
See, Schwarz v. Platte Valley Exterminating, supra note 14; Topil v. Hub
Hall Co., 230 Neb. 151, 430 N.W.2d 306 (1988); Schuster v. Baumfalk,
229 Neb. 785, 429 N.W.2d 339 (1988); Doupnik v. Usher Pest Control
Co., 217 Neb. 1, 346 N.W.2d 699 (1984); Zimmer v. Brandon, 134 Neb.
311, 278 N.W. 502 (1938). See, also, Bargmann v. Soll Oil Co., 253 Neb.
1018, 574 N.W.2d 478 (1998).
48
See Bargmann v. Soll Oil Co., supra note 47.
49
See McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386(2011).
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Cite as 309 Neb. 202[32] It is true that expert testimony is not necessarily required
to establish a breach by the failure to achieve a promised par-
ticular result that can be shown by lay witness observations, 50
but that is when the contract explicitly guarantees a certain
result and not just to perform in a workmanlike fashion accord-
ing to industry standards. 51 While Lion makes reference to
Richard’s testimony concerning warranties and the excluded
testimony and letter regarding the same, there is no indication
in the evidence admitted or excluded that the warranty, if any,
would be to ensure that the areas on the building worked on
would not fail or deteriorate due to any cause.
It was undisputed that a prior contractor had performed defi-
cient work on the building’s facade, and there was evidence
that McGill was only contracted to repair some of that deficient
work. There was evidence that McGill informed Lion that more
repair work needed to be conducted on the surrounding areas
and that Lion’s failure to do so would have jeopardized the
integrity of McGill’s repairs. McGill did not have exclusive
control and management over the building. No other work was
done on the facade until 2014.
Under these facts, it cannot be surmised merely from the
deterioration of the facade—even if there had been testimony
directly proving the failures were of the areas McGill had con-
tracted to repair—that McGill failed to substantially comply
with its implied duty to complete the contracted-for repairs in a
workmanlike manner. Leaving aside whether expert ­testimony
would be necessary under different facts, expert testimony
was necessary in this case to determine the technical suf-
ficiency of McGill’s structural work and installations. 52 The
50
See Hone v. Advanced Shoring & Underpinning, 291 P.3d 832 (Utah App.
2012).
51
See id.52
See CCC Group, Inc. v. South Cent. Cement, Ltd., 450 S.W.3d 191 (Tex.
App. 2014).
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Cite as 309 Neb. 202technical nature of the repair work and the number of potential
factors affecting its durability were outside the scope of ordi-
nary experience.
[33] Lion argues that Michael provided such expert testi-
mony and that the court erred in disregarding it. We disagree.
The trial court is given discretion in determining whether
or not a witness is qualified to state an expert opinion, and
such determination will not be disturbed on appeal absent an
abuse of discretion. 53 It is within the trial court’s discretion to
determine whether there is sufficient foundation for an expert
witness to give an opinion about an issue in question. 54 The
court found that Michael’s testimony “did not rise to the degree
necessary for him to have an accepted expert opinion as to the
work performed.”
The district court did not abuse its discretion. Michael
opined that McGill performed its work in an unworkmanlike
manner by pouring concrete during the day when it would
freeze at night before the concrete had set. But, on cross-
examination, Michael admitted he did not know the scope of
the work McGill had agreed to undertake under the contract
nor what products McGill had used on the Lion building.
Richard testified that McGill did not use concrete but, rather,
“Thoropatch,” and that McGill used lasers to determine the
ambient temperature and never applied the product below its
specified ambient temperature.
Michael admitted he had observed the facade only from
the ground level and had never conducted any testing in rela-
tion to the case. Michael also admitted that his experience
in masonry work primarily involved a short period decades
before and that he did not know the standard of people in the
concrete and masonry industry in 2009, when McGill per-
formed its work.
53
Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996).
54
Liberty Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 23, 751 N.W.2d
608 (2008).
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Cite as 309 Neb. 202[34,35] In the end, Michael testified that McGill must not
have done the work in a workmanlike manner, “because it
didn’t stick on the building. It falls off the building. So, con-
sequently, whatever they’ve done and however it was done
was wrong . . . .” An expert must have good grounds for the
expert’s belief in every step of the analysis. 55 The term “good
grounds” means an inference or assertion derived by scientific
method and supported by appropriate validation. 56
[36,37] Michael did not know whether the exact areas
repaired by McGill failed. And, as we have stated in other
cases, it is a logical fallacy to assume that temporal correlation
equals causation. 57 Simply because the facade demonstrated
deterioration after McGill performed its work does not mean
it was a failure by McGill to substantially comply with its
duties under the contract that caused the deterioration. It is
well settled that a causation opinion based solely on a temporal
relationship is unreliable, because it is not derived from the
scientific method. 58 Such an opinion is also unreliable because
it is not based upon sufficient facts or data. 59
The court’s verdict was not tainted by an error at law or any
abuse of discretion in its exclusion of evidence. Nor was it
clearly erroneous. The trial court’s factual findings in a bench
trial of an action at law have the effect of a jury verdict and
will not be set aside unless clearly erroneous. 60 In review-
ing a judgment awarded in a bench trial of a law action, an
appellate court does not reweigh evidence, but considers the
evidence in the light most favorable to the successful party
and resolves evidentiary conflicts in favor of the successful
55
Roskop Dairy v. GEA Farm Tech., supra note 5.
56
Id.
57
See id.
58
Id.
59
Id.
60
McCully, Inc. v. Baccaro Ranch, 284 Neb. 160, 816 N.W.2d 728 (2012).
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Cite as 309 Neb. 202party, who is entitled to every reasonable inference deducible
from the evidence. 61 The court did not clearly err in finding
that McGill completed the work properly and in a workman-
like manner, that the work completed was necessary, and that
McGill complied with the terms and conditions of the contract
it had with Lion.
5. Attorney Fees
We turn to the question of whether, because of the lack
of expert testimony by Lion that McGill performed its work
in an unworkmanlike manner, Lion’s defense of the breach
of contract claim and its assertion of its counterclaims were
friv­olous. The district court concluded that without an expert,
“there was no way [Lion] could be successful in this matter,
which [Lion] knew or should have known.”
Neb. Rev. Stat. § 25-824 (Reissue 2016) provides in rel-
evant part:
(2) Except as provided in subsections (5) and (6) of
this section, in any civil action commenced or appealed
in any court of record in this state, the court shall award
as part of its judgment and in addition to any other costs
otherwise assessed reasonable attorney’s fees and court
costs against any attorney or party who has brought or
defended a civil action that alleges a claim or defense
which a court determines is frivolous or made in bad faith.
(3) When a court determines reasonable attorney’s
fees or costs should be assessed, it shall allocate the pay-
ment of such fees or costs among the offending attorneys
and parties as it determines most just and may charge
such amount or portion thereof to any offending attorney
or party.
(4) The court shall assess attorney’s fees and costs if,
upon the motion of any party or the court itself, the court
finds that an attorney or party brought or defended an
61
Hooper v. Freedom Fin. Group, 280 Neb. 111, 784 N.W.2d 437 (2010).
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Cite as 309 Neb. 202action or any part of an action that was frivolous or that
the action or any part of the action was interposed solely
for delay or harassment. If the court finds that an attorney
or party unnecessarily expanded the proceedings by other
improper conduct, including, but not limited to, abuses
of civil discovery procedures, the court shall assess attor-
ney’s fees and costs.
(5) No attorney’s fees or costs shall be assessed if a
claim or defense was asserted by an attorney or party in a
good faith attempt to establish a new theory of law in this
state or if, after filing suit, a voluntary dismissal is filed
as to any claim or action within a reasonable time after
the attorney or party filing the dismissal knew or reason-
ably should have known that he or she would not prevail
on such claim or action.
Neb. Rev. Stat. § 25-824.01 (Reissue 2016) provides:
In determining the amount of a cost or an attorney’s
fee award pursuant to subsection (2) of section 25-824,
the court shall exercise its sound discretion. When grant-
ing an award of costs and attorney’s fees, the court shall
specifically set forth the reasons for such award and
shall, in determining whether to assess attorney’s fees
and costs and the amount to be assessed against offend-
ing attorneys and parties, consider the following factors,
including, but not limited to: (1) The extent to which any
effort was made to determine the validity of any action
or claim before the action was asserted; (2) the extent of
any effort made after the commencement of an action to
reduce the number of claims or defenses being asserted
or to dismiss claims or defenses that have been found
not to be valid; (3) the availability of facts to assist the
party to determine the validity of a claim or defense; (4)
the relative financial position of the parties involved; (5)
whether or not the action was prosecuted or defended in
whole or in part in bad faith; (6) whether or not issues
of fact, determinative of the validity of a party’s claim
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Cite as 309 Neb. 202or defense, were reasonably in conflict; (7) the extent
to which the party prevailed with respect to the amount
of and number of claims in controversy; (8) the amount
or conditions of any offer of judgment or settlement in
relation to the amount or conditions of the ultimate relief
granted by the court; (9) the extent to which a reasonable
effort was made to determine prior to the time of filing of
a claim that all parties sued or joined were proper parties
owing a legally defined duty to the plaintiff or defendant;
and (10) the extent of any effort made after the com-
mencement of an action to reduce the number of parties
in the action.
[38] In determining whether to assess attorney fees and costs
and the amount to be assessed against offending attorneys and
parties, the court considers a number of factors, including,
but not limited to, the 10 factors listed in § 25-824.01. 62 On
appeal, a trial court’s decision awarding or denying attorney
fees and the amount thereof will be upheld absent an abuse
of discretion. 63
[39] The term “frivolous” connotes an improper motive or
legal position so wholly without merit as to be ridiculous. 64
Section 25-824(5) contemplates that attorney fees may be
assessed when a party persists in asserting a claim after it
knows or reasonably should know it would not prevail on the
claim. 65 While Lion’s defense and counterclaims may not have
begun as frivolous, the district court did not abuse its discretion
in determining that after several years of discovery and pretrial
motions and hearings, Lion reasonably should have known
it would not prevail without expert testimony with proper
62
In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).
63
See White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013). See, also,
§ 25-824.01.
64
Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
65
George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
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Cite as 309 Neb. 202foundation establishing that McGill’s work was not done in a
workmanlike manner. Likewise, we do not find that the district
court abused its discretion in determining the amount of the
fees and expenses to be awarded.
6. Prejudgment Interest
[40] Finally, we turn to the question of prejudgment inter-
est. The judgment in favor of McGill was in the amount of
$25,000, plus prejudgment interest at a rate of 12 percent per
year commencing November 1, 2009, for a total prejudgment
interest amount of $38,875. Awards of prejudgment interest are
reviewed de novo. 66
Neb. Rev. Stat. §§ 45-103.02(1) and (2) and 45-104 (Reissue
2010) provide alternate and independent means of recov-
ering prejudgment interest. 67 All three of these statutory provi-
sions establish different criteria for the recovery of prejudg-
ment interest, and none makes the recovery of prejudgment
interest contingent on proof of another. 68
Section 45-103.02(1) provides for prejudgment interest of
unliquidated claims:
Except as provided in section 45-103.04, interest as pro-
vided in section 45-103 shall accrue on the unpaid balance
of unliquidated claims from the date of the plaintiff’s first
offer of settlement which is exceeded by the judgment
until the entry of judgment if all of the following condi-
tions are met:
(a) The offer is made in writing upon the defendant by
certified mail, return receipt requested, to allow judgment
to be taken in accordance with the terms and conditions
stated in the offer;
66
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212(2020).
67
See Weyh v. Gottsch, supra note 5.
68
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Cite as 309 Neb. 202(b) The offer is made not less than ten days prior to the
commencement of the trial;
(c) A copy of the offer and proof of delivery to the
defendant in the form of a receipt signed by the party or
his or her attorney is filed with the clerk of the court in
which the action is pending; and
(d) The offer is not accepted prior to trial or within
thirty days of the date of the offer, whichever occurs
first. 69
The purpose of § 45-103.02 is to encourage settlement of tort
cases by authorizing the recovery of prejudgment interest when
a reasonable settlement demand is refused. 70
Section 45-103.02(2) authorizes the recovery of prejudg-
ment interest of liquidated claims 71 and provides: “Except as
provided in section 45-103.04, interest as provided in sec-
tion 45-104 shall accrue on the unpaid balance of liquidated
claims from the date the cause of action arose until the entry
of judgment.”
Section 45-104 authorizes the recovery of prejudgment
interest on four categories of contract-based claims without
regard to whether the claim is liquidated or unliquidated. 72
Those four categories are (1) on any instrument in writing; (2)
on settlement of the account from the day the balance shall
be agreed upon; (3) on money received to the use of another
and retained without the owner’s consent, express or implied,
from the receipt thereof; and (4) on money loaned or due and
withheld by unreasonable delay of payment. Section 45-104
provides:
Unless otherwise agreed, interest shall be allowed at
the rate of twelve percent per annum on money due
on any instrument in writing, or on settlement of the
69
See, also, id.
70
Id.
71
See id.
72
Id.
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Cite as 309 Neb. 202account from the day the balance shall be agreed upon, on
money received to the use of another and retained without
the owner’s consent, express or implied, from the receipt
thereof, and on money loaned or due and withheld by
unreasonable delay of payment. Unless other­wise agreed
or provided by law, each charge with respect to unsettled
accounts between parties shall bear interest from the date
of billing unless paid within thirty days from the date
of billing.
The court did not explicitly state under which statute it was
awarding prejudgment interest. It awarded interest commenc-
ing November 1, 2009, however, which was just 2 days after
October 30, the date McGill presented Lion with an invoice for
the work performed. In that respect it appears the court relied
on § 45-104.
Lion makes several arguments on appeal that the claim
was not liquidated for purposes of prejudgment interest under
§ 45-103.02(2) and that McGill failed to establish the statutory
preconditions for prejudgment interest under § 45-103.02(1)
for an unliquidated claim. McGill does not dispute, however,
that its claim was unliquidated, and it does not assert that it
was entitled to prejudgment interest for an unliquidated claim
under § 45-103.02(1). McGill instead argues that the require-
ments of § 45-104 were clearly satisfied.
Lion’s only challenge on appeal to an award of prejudgment
interest pursuant to § 45-104 is that McGill failed to comply
with Neb. Ct. R. Pldg. § 6-1108(a), which states:
(a) Claims for Relief. A pleading which sets forth a
claim for relief, whether an original claim, counterclaim,
cross-claim, or third-party claim, shall contain (1) a cap-
tion, (2) a short and plain statement of the claim showing
that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks. Relief
in the alternative or of several different types may be
demanded. If the recovery of money be demanded, the
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Cite as 309 Neb. 202amount of special damages shall be stated but the amount
of general damages shall not be stated; and if interest
hereon be claimed, the time from which interest is to be
computed shall also be stated.
(Emphasis supplied.)
[41] Lion argues that McGill did not comply with § 6-1108(a),
because the complaint did not identify a date for commence-
ment of prejudgment interest. The complaint did ask for pre-
judgment interest, and Lion had an opportunity to be heard on
the issue before it was decided. We have held that compliance
with § 6-1108(a) is not determinative where entitlement to
interest is based on statute and the adverse party had notice and
an opportunity to be heard prior to judgment. 73 Therefore, we
find no merit to Lion’s assertion that McGill’s failure to strictly
comply with § 6-1108(a) precluded the district court’s award of
prejudgment interest.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
Affirmed.
Miller-Lerman, J., not participating.
Cassel, J., concurs in the result.
73
AVG Partners I v. Genesis Health Clubs, supra note 66.