Novacek v. Matthewson

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
NOVACEK V. MATTHEWSON
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
JODY L. NOVACEK, APPELLANT,
V.
BRIAN L. MATTHEWSON, APPELLEE.
Filed January 24, 2023. No. A-22-173.
Appeal from the District Court for Lincoln County: DONALD E. ROWLANDS and MICHAEL
E. PICCOLO, Judges. Affirmed.
Jody Novacek, pro se.
Bradley D. Holbrook and Jayme M. Krejci, of Jacobsen, Orr, Lindstrom & Holbrook, P.C.,
L.L.O., for appellee.
PIRTLE, Chief Judge, and ARTERBURN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Jody L. Novacek, acting pro se, appeals from the Lincoln County District Court’s order
dismissing her amended complaint against Brian Matthewson for breach of an alleged written
agreement to dissolve their common law marriage. For the reasons stated herein, we affirm.
STATEMENT OF FACTS
In December 2015, Novacek filed a complaint in the Lincoln County District Court, which
she later amended, relating to an October 2015 written agreement purporting to “dissolve” the
parties’ common-law marriage and divide the parties’ assets. The amended complaint alleged four
separate claims. Novacek’s first claim alleged that Matthewson had breached the parties’
agreement “by removing personal property from the residence, withdrawing money from the
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parties’ real estate account, changing locks on rental property, and refusing to allow [Novacek] to
perform the terms of the agreement.” Novacek’s second claim alleged that Matthewson had denied
the validity of the parties’ agreement and requested a declaratory judgment determining that the
parties’ agreement “is valid and binding” and ordering Matthewson “to perform the terms
thereunder.” Novacek’s third claim alleged that from approximately 2006 until October 2015,
Novacek and Matthewson “resided together and operated a business as a partnership,” that the
partnership was dissolved by agreement in October 2015, and that the partnership should be wound
up in accordance with Nebraska statutes. Fourth, Novacek alleged that certain real property was
purchased with partnership funds and was titled in Matthewson’s name and that Matthewson
“acquired legal title by actual or constructive fraud, misrepresentation, or abuse of an influential
or confidential relationship.” Novacek asserted that Matthewson’s “retention of the property is
wrongful and [Matthewson] would be unjustly enriched if permitted to retain the property” and
requested imposition of a constructive trust on the real properties for Novacek’s benefit.
Matthewson filed an answer and counterclaim wherein he denied signing the October 2015
agreement and requested declaratory judgment as to the validity and enforceability of that
agreement. Matthewson also alleged that Novacek’s first, third, and fourth claims failed to state
facts sufficient to constitute a cause of action, failed to state claims upon which relief could be
granted, and that those claims were barred by the statute of limitations.
A bifurcated trial was held over two days in February 2017 and December 2021. The
February 2017 trial governed Novacek’s first two claims under the marital dissolution agreement,
and the December 2021 trial governed her third and fourth claims to a partnership. Testimony was
adduced from Novacek; Matthewson; Kathy Carlson, a certified forensic document examiner; and
Charles Eggleston, a board-certified forensic document examiner.
Following the February 2017 trial, the district court issued an order dated March 3, 2017,
and dismissed claims one and two of the amended petition, finding that Matthewson did not sign
the agreement and that Novacek “attempted to pressure [Matthewson] into signing [the agreement]
by threatening to divulge sensitive sexual information about [Matthewson] and about his
advertising on Craig’s List [sic].”
Following the December 2021 trial, the district court entered an order dated February 14,
2022, which dismissed claims three and four of Novacek’s amended petition, found that there was
“no objective evidence of the existence of a partnership” between Novacek and Matthewson and,
because no partnership existed, there was no business to be wound up. Further, the court found
that Novacek failed to prove by clear and convincing evidence that the real property at issue was
obtained through fraud, misrepresentation, or abuse of an influential or confidential relationship.
On March 15, 2022, Novacek appealed from the district court’s final order but assigned
errors only in connection with the order dated March 3, 2017. Accordingly, this opinion will be
limited to the assignments of error associated with the district court’s dismissal of claims one and
two in the order that followed the February 2017 trial.
ASSIGNMENTS OF ERROR
Novacek assigns as error, restated, that the district court erred in (1) allowing Matthewson
to subpoena and call Eggleston as a witness at trial because Eggleston had been retained as a
consultant for Novacek and his testimony was privileged work product, (2) overlooking factual
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evidence presented at trial showing that Matthewson perjured himself regarding whether he signed
the agreement, and (3) rejecting the opinion of Novacek’s expert witness who opined that
Matthewson had signed the agreement.
STANDARD OF REVIEW
Suit for damages arising from breach of contract presents an action at law. Phipps v.
Skyview Farms, 259 Neb. 492, 610 N.W.2d 723 (2000).
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. McGill Restoration v. Lion Place Condo.
Assn., 309 Neb. 202, 959 N.W.2d 251 (2021). In reviewing 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 party, who is entitled to every reasonable inference deducible from the evidence. Id.An action for declaratory judgment is sui generis, and whether such action is to be treated
as one at law or one in equity is to be determined by the nature of the dispute. TNT Cattle Co. v.
Fife, 304 Neb. 890, 937 N.W.2d 811 (2020). In appellate review of an action for a declaratory
judgment in a law action, factual findings by the trier of fact will not be set aside unless they are
clearly erroneous. Id.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. McGill Restoration v. Lion Place Condo. Assn., supra. Stated another way, an
appellate court reviews de novo whether the trial court applied the correct legal standards for
admitting an expert’s testimony, and reviews for abuse of discretion how the trial court applied the
appropriate standards in deciding whether to admit or exclude an expert’s testimony. Id.When reviewing applicability of attorney-client privilege and/or work product doctrine, an
appellate court reaches conclusion independent of lower court’s ruling. Neb. Rev. Stat. § 27-503(Reissue 2016); Discovery Rule 26(b)(3). Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567
N.W.2d 560 (1997).
ANALYSIS
EGGLESTON TESTIMONY
In connection with the February 2017 trial, Matthewson subpoenaed Eggleston to testify
at trial. Novacek filed a motion to quash that subpoena arguing that Eggleston was employed by
her as a consulting expert not expected to be called to testify at trial, that Matthewson had obtained
Eggleston’s report improperly or inadvertently, and that Matthewson should be precluded from
calling Eggleston to testify. Following a hearing on the motion, the district court overruled the
motion finding that:
[Counsel for Novacek] employed . . . Eggleston as an expert who was not expected to
testify at trial. Pursuant to Nebraska Court Rule of Civil Discovery §6-326(b)(4)(B),
[Counsel for Matthewson] was allowed to discover the opinions of . . . Eggleston only upon
a showing of exceptional circumstances under which it was impractical for [Matthewson]
to obtain facts or opinions on the same subject by other means. However, the report of . . .
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Eggleston was obtained by [Matthewson] after a copy was left on the back seat of his 2015
Nissan. Presumably the report was left there by [Novacek]. [Novacek] has therefore waived
confidentiality and [Counsel for Matthewson] may subpoena Eggleston and require him to
testify and produce his report at trial.
Novacek assigns and argues that the district court erred in overruling her motion to quash
and her objection to Eggleston’s trial testimony. She argues that Eggleston’s report constituted
either attorney-client privileged information or information subject to the work product doctrine
and that the court’s decision to allow Eggleston to testify compromised that privileged information.
Novacek’s argument calls into question the right of a party to call as its own witness an
expert that has been retained and identified by the opposing party. That issue was analyzed by the
Nebraska Supreme Court in Seeber v. Howlette, 255 Neb. 561, 566-67, 586 N.W.2d 445, 449-50
(1998), wherein the Court held:
As a general rule, a party is not precluded from calling as its own witness an expert
who has been retained and identified by the opposing party. In IAFF, Local 831 v. City of
No. Platte, 215 Neb. 89, 337 N.W.2d 716 (1983), we held that where a city’s expert witness
in a dispute between it and a firefighters’ union possessed relevant information regarding
prevalent wages and fringe benefit rates, the Commission of Industrial Relations did not
err in allowing the union to call the city’s expert to testify in the union’s case in chief. The
witness was not called upon to make any additional investigation and was merely asked to
express opinions he had already formed prior to trial. Id. We reasoned that it ran contrary
to the truth-seeking function of trial “to suggest that unfavorable evidence in the form of
an expert’s opinion may be kept from either party in the interest of justice and to prevent
prejudice.” Id. at 98, 337 N.W.2d at 722.
But Novacek argues that a distinction should be made when the expert witness has been
retained as a consultant not to be called as a witness at trial. She argues that under such
circumstances, the opinions formulated by the expert should constitute attorney-client privileged
information or work product and should be protected from disclosure.
The plaintiff made a similar argument in Seeber v. Howlette, supra, contending that an
expert’s opinions should be excluded when the expert is retained as an expert not designated as a
trial witness. In response to that claim, the Nebraska Supreme Court stated:
This argument rests upon rule 26(b)(4)(B), which provides: “A party may discover
facts known or opinions held by an expert who has been retained or specially employed by
another party in anticipation of litigation or preparation for trial and who is not expected to
be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of
exceptional circumstances under which it is impracticable for the party seeking discovery
to obtain facts or opinions on the same subject by other means.”
Seeber v. Howlette, 255 Neb. 561, 567, 586 N.W.2d 445, 450 (1998).
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In determining whether this discovery rule dictates a similar limitation on the admissibility
of an expert’s opinion at trial, the Nebraska Supreme Court held:
While there may be circumstances in which the rationale underlying rule
26(b)(4)(B) would require an order under § 27-403 precluding a party from calling an
expert witness retained by the opposing party, such circumstances are not reflected in the
record of the present case. There is no showing that [the expert] was privy to the litigation
tactics or strategies of the [plaintiff’s] counsel. Although he examined x rays which had
been taken previously, [the expert’s] opinions were based primarily upon the history which
he obtained directly from [the plaintiff] and the orthopedic examination which [the expert]
conducted.
Seeber v. Howlette, 255 Neb. at 568, 586 N.W.2d at 450.
Novacek similarly asserts that the dictates of Rule 26(b)(4)(B) should have been applied
by the trial court when Novacek objected to Matthewson calling Eggleston as a live witness.
Novacek argues that because no exceptional circumstances were present here, Eggleston’s
opinions should have been considered attorney-client privileged information or subject to the work
product doctrine and protected from disclosure at trial. Inherent in Novacek’s argument is the
underlying premise that Eggleston’s opinions sought at trial were the subject of attorney-client
privilege or work product doctrine. However, the party asserting the attorney-client privilege or
work product doctrine has the burden of proving that the documents sought are protected.
Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997).
In connection with this appeal, Novacek failed to provide a record from the motion to quash
hearing in which she attempted to assert this privilege. In relation to whatever evidence was
received and considered by the court in connection with that hearing, the court found that the
privilege was waived because of Novacek’s disclosure of Eggleston’s report by leaving it in the
back seat of Matthewson’s vehicle. Without a record from this proceeding, we are unable to
determine whether the evidence supported a finding that the information Novacek sought to protect
was subject to the attorney-client privilege or work product doctrine, and if it was, whether that
privilege was waived by Novacek’s purported disclosure. It is incumbent upon an appellant to
supply a record which supports his or her appeal. State v. Custer, 292 Neb. 88, 871 N.W.2d 243(2015). Without that record, as in Seeber v. Howlette, supra, we cannot say that Eggleston was
privy to the litigation tactics or strategies of Novacek’s counsel or whether Novacek did in fact
waive any privilege in connection with her purported disclosure. Under those circumstances, we
cannot say that the district court abused its discretion in applying the general rule that a party is
not precluded from calling as its own witness an expert who has been retained and identified by
the opposing party. This assignment fails.
FACTUAL EVIDENCE OF PERJURY
Novacek next assigns that the district court “erred in overlooking that Matthewson perjured
himself with his own testimony and evidence submitted by . . . Matthewson, with direct regard to
the matter before the court, the signing of the agreement.” In furtherance of this assignment,
Novacek argues that in an October 20, 2015, recorded meeting, Matthewson provided admissions
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which differed from his in-court testimony and, as a result, the district court’s conclusions did not
align with the evidence presented at trial.
A suit for damages arising from breach of a contract presents an action at law. Bloedorn
Lumber Co. v. Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018). 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 erroneous. Henriksen v. Gleason, 263 Neb. 840, 643 N.W.2d 652 (2002). The
appellate court does not reweigh the evidence but considers the judgment in a light most favorable
to the successful party and resolves evidentiary conflicts in favor of the successful party, who is
entitled to every reasonable inference deducible from the evidence. Id.Here, Novacek filed a complaint wherein she requested the court enter a declaratory
judgment finding that the agreement was valid and binding and order Matthewson to perform
under the agreement. Novacek argues that the district court erred in making a factual finding that
Matthewson had not signed the contract because of the evidence within the recorded conversation.
We disagree.
Our review of the recorded conversation indicates that Matthewson specifically indicated
during the session that he would not sign the agreement discussed that day. At trial, Novacek
attempted to argue that the conversation recorded on October 20, 2015, was a discussion governing
Matthewson’s refusal to sign an addendum to the agreement, but that he had already signed the
original agreement prior to this meeting. Matthewson refuted this proposition, testifying that the
October 20, 2015, recorded conversation captured their discussion governing the original
agreement. There is nothing in the recorded conversation that necessarily refuted Matthewson’s
version of events. To the contrary, one of the discussion points recorded dealt with the couple’s
disagreement governing couple’s counseling which was part of the original agreement Novacek
alleged Matthewson previously signed. Where, as in this case, the credible evidence is in conflict
on a material issue of fact, the appellate court considers and may give weight to the fact that the
trial judge heard and observed the witnesses and accepted one version of the facts rather than
another. Noah’s Ark Processors v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72 (2022).
Accordingly, providing that weight here, we find no clear error in the district court’s determination
that Matthewson had not signed the agreement in light of the recorded conversation. This
assignment of error fails.
OPINION OF NOVACEK’S EXPERT
Novacek finally assigns that the district court erred in finding that Matthewson had not
signed the agreement, which disregarded Carlson’s testimony to the contrary.
Determining the weight that should be given expert testimony is uniquely the province of
the fact finder. Wayne L. Ryan Revocable Trust v. Ryan, 308 Neb. 851, 957 N.W.2d 481 (2021).
Where credible evidence is in conflict on material issues of fact, a reviewing court may consider
and give weight to the fact that the trial court observed the witnesses and accepted one version of
the facts over another. Id. A reviewing court gives significant weight to a trial court’s credibility
determination. Id.In its order, the district court found that:
[Novacek] employed . . . Carlson, a certified forensic document examiner from
Montrose, Colorado with seven years of experience. . . . Carlson has testified as an expert
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witness 23 times in the courts in Colorado, Utah, Washington, and Oregon. . . . Carlson
testified that the original document is preferred for forensic analysis, but in this day and
age copies are frequently the only documents which are available for review. After
analyzing a copy of Exhibit 7, and known samples of [Matthewson’s] handwriting, . . .
Carlson testified that [Matthewson’s] signature on Exhibit 7 is consistent with his known
writing samples to a reasonable degree of certainty within her field of expertise. In the
expert opinion of . . . Carlson, there are no signs that the signature was the result of a “cut
and paste” job. In her opinion, it was also significant that Exhibit 7 was signed and dated
with what appears to be similar ink.
....
Nebraska law is clear, that an expert’s testimony is purely advisory and is not
binding on the trier of fact. The fact finder, which in this case is the Court, is not required
to take expert opinion as binding. The weight to be given expert testimony is uniquely
within the province of the fact finder. See; NJI 2d Civ. Section 1.42-17. Likewise, the Court
as the trier of fact in this case is the sole judge of the credibility of the lay witnesses and
the weight to be given their testimony. In this case, the Court has considered the factors set
forth in NJI 2d Civ. Section 1.41, including my observations of [Novacek] and
[Matthewson] while testifying, and has determined as a matter of fact that the testimony of
[Matthewson] that he did not sign Exhibit 7 is more credible than the testimony of
[Novacek]. The opinion of [Novacek’s] expert, . . . Carlson, has been disregarded as . . .
Carlson did not have the original of Exhibit 7 to examine. The testimony of [Novacek] that
she did not threaten or pressure [Matthewson] in an attempt to have him sign Exhibit 7 is
neither reasonable nor credible. I accept the testimony of [Matthewson] that [Novacek]
attempted to pressure him into signing Exhibit 7 by threatening to divulge sensitive sexual
information about [Matthewson], and about his advertising on Craig’s List [sic].
Here, the district court found that Novacek’s expert’s opinion was not credible or was at
least less credible than the other testimony presented during the trial. Because we give weight to
the district court’s credibility determination, having directly heard and observed the expert
testimony, we find no error in the district court’s determination that Matthewson’s testimony was
more credible than Novacek’s. This assignment of error fails.
CONCLUSION
For the reasons stated above, we affirm the order of the district court.
AFFIRMED.
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