Village of Doniphan v. Starostaka Group Unlimited

Decisions of the Nebraska Court of Appeals
464 22 NEBRASKA APPELLATE REPORTS
handguns were designed or had the ability to expel a projectile
by the action of the explosive black gunpowder. Clearly, the
evidence was sufficient for the jury to find Tharp guilty of both
counts of felon in possession of a firearm. This assignment of
error is without merit.
CONCLUSION
In conclusion, Tharp failed to preserve the issue of the
motion to suppress for appellate review, and given the plain
language of § 28-1201, the evidence presented at trial was suf-
ficient for the jury to convict Tharp of two counts of felon in
possession of a firearm. Tharp’s assignments of error are with-
out merit, and as such, we affirm.
Affirmed.
Village of Doniphan, a municipal corporation, appellant,
v.Starostka Group Unlimited, Inc.,
a Nebraska corporation, appellee.
___ N.W.2d ___
Filed October 21, 2014. No. A-13-658.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a
motion for directed verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
2. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
3. Judgments: Verdicts. On a motion for judgment notwithstanding the verdict,
the moving party is deemed to have admitted as true all the relevant evidence
admitted that is favorable to the party against whom the motion is directed, and,
further, the party against whom the motion is directed is entitled to the benefit of
all proper inferences deducible from the relevant evidence.
4. ____: ____. To sustain a motion for judgment notwithstanding the verdict, the
court resolves the controversy as a matter of law and may do so only when the
facts are such that reasonable minds can draw but one conclusion.
Decisions of the Nebraska Court of Appeals
VILLAGE OF DONIPHAN v. STAROSTKA GROUP UNLIMITED 465
Cite as 22 Neb. Ct. App. 464
5. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of discretion.
6. Verdicts: Juries: Appeal and Error. A jury verdict will not be set aside unless
clearly wrong, and it is sufficient if any competent evidence is presented to the
jury upon which it could find for the successful party.
Appeal from the District Court for Hall County: Teresa K.
Luther, Judge. Affirmed.
Austin L. McKillip, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., and James H. Truell, of Truell, Murray &
Associates, for appellant.
Larry E. Welch, Jr., of Welch Law Firm, P.C., for appellee.
Irwin, Moore, and Pirtle, Judges.
Pirtle, Judge.
INTRODUCTION
The Village of Doniphan, a municipal corporation, appeals
from an order of the district court for Hall County, which
entered judgment upon the verdict of the jury finding that
Doniphan’s breach of contract claim against Starostka Group
Unlimited, Inc. (Starostka Group), a Nebraska corporation, was
barred by the statute of limitations. Doniphan contends that
the trial court erred in failing to grant its motion for directed
verdict and erred in failing to grant its motion for judgment
notwithstanding the verdict or, in the alternative, a motion for
new trial. Based on the reasons that follow, we affirm the judg-
ment of the district court.
BACKGROUND
This action arises from a breach of contract claim brought
by Doniphan against Starostka Group. Specifically, in August
2005, Starostka Group entered into an agreement with
Doniphan to construct a sanitary sewer system and water lines
according to prescribed specifications for a new residential
development known as Hoffman subdivision. In the spring
of 2006, the subdivision experienced significant drainage and
standing water problems which caused sinking and damage to
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466 22 NEBRASKA APPELLATE REPORTS
the paving above the sanitary sewer system and water lines
constructed by Starostka Group.
On February 11, 2010, Doniphan commenced this action
to recover damages, alleging that Starostka Group breached
the construction contract by failing to comply with the speci-
fications for the design and construction of the project. In its
amended answer filed October 21, Starostka Group raised the
affirmative defense that Doniphan’s claims were barred by the
applicable statute of limitations.
Starostka Group filed a motion for summary judgment,
which the trial court overruled. The court found that the sub-
stantial completion date of the project presented a genuine
issue of material fact.
The case proceeded to a jury trial on the issue of when sub-
stantial completion of the project occurred, thereby determining
whether Doniphan’s claim against Starostka Group was barred
by the statute of limitations. The evidence presented showed
that Doniphan and Starostka Group entered into a written con-
struction contract whereby Starostka Group agreed to complete
the work necessary for “[t]he installation of water and sewer
mains for the proposed [s]ubdivision as well as the earthwork
needed to bring the site to the proposed elevations.” The con-
tract listed a start date in August 2005, listed the total price
for Starostka Group’s work on the project as $197,475.34, and
provided for progress payments of the total contract price as
the work was completed. The contract named JEO Consulting
Group, Inc. (JEO Consulting), as the project engineer and
authorized it to act as Doniphan’s representative. The contract
specifically stated that JEO Consulting would act as the initial
interpreter of the requirements of the contract and the judge of
the acceptability of the work thereunder. As such, upon receipt
of an application for progress payment from Starostka Group,
JEO Consulting inspected the work completed by Starostka
Group before it recommended that Doniphan make partial pay-
ments under the contract.
The contract also addressed the specifications for disin-
fection of the water distribution system and required that
Starostka Group disinfect the water lines and document that
the lines had passed two consecutive bacteriological tests. The
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 464
contract further provided that separate payment for disinfec-
tion and bacteriological testing of the water lines would not be
made and that such work is considered subsidiary to the work
indicated in the project.
On or about August 29, 2005, Starostka Group was given
a notice to proceed by Doniphan to construct the project’s
sewer system and water lines. At the end of September,
Starostka Group submitted its first “Contractor Application for
Payment” to JEO Consulting requesting payment in the amount
of $142,144.63 for work on the project completed through
September 29.
At the October 2005 meeting of Doniphan’s board of trust-
ees (the Board), Dale Sall, who served as the project engi-
neer for JEO Consulting, presented Starostka Group’s payment
request for approval by the Board. Upon unanimous approval
by the Board, Doniphan issued to Starostka Group a check in
the amount requested.
On October 31, 2005, Starostka Group submitted its sec-
ond “Contractor Application for Payment” to JEO Consulting
requesting payment in the amount of $46,163.84 for work
on the project completed through October 28. At the Board’s
November 2005 meeting, Sall presented Starostka Group’s sec-
ond payment request for approval. The Board decided to post-
pone payment of the second payment request until Starostka
Group could sanitize the water system and provide passing
bacteriological tests.
On December 5, 2005, Starostka Group submitted its
third and final “Contractor Application for Payment” to JEO
Consulting requesting payment in the amount of $13,324.10
for work completed on the project through December 5. At
the Board’s December 12 meeting, Sall presented Starostka
Group’s third and final pay request for approval. According
to the Board’s meeting minutes, Sall also reported that the
water lines constructed by Starostka Group had now success-
fully passed the water tests. The Board unanimously approved
payment of Starostka Group’s second payment request, in the
amount of $46,163.84, which had been postponed the previ-
ous month. The Board also agreed to approve final payment
of all but $2,000 of the total contract price. The $2,000 was
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468 22 NEBRASKA APPELLATE REPORTS
withheld to ensure that Starostka Group finished two items
on the final “punch list,” which included the valve boxes and
sealing of the electrical and the lift station. The money with-
held did not have anything to do with sanitizing the water or
water testing.
In addition to submitting Starostka Group’s third and final par-
tial payment application for approval at the Board’s December
12, 2005, meeting, Sall also submitted a “Recommendation
of Acceptance” of Starostka Group’s completed work on the
project. Sall testified that he did not prepare a separate cer-
tificate of substantial completion for the Board’s approval,
because when Starostka Group submitted its third and final
payment request, it was for 100 percent of all the items in the
contract. Sall testified, “Instead of issuing one for substantial
and another one that was final, we just issued the one, the
final Pay Application or pay request and a final acceptance.”
Although the Board had approved final payment, less $2,000,
the “Recommendation of Acceptance” was not signed by the
parties at that time.
On December 20, 2005, Mike Schultes, a JEO Consulting
employee, sent an e-mail to Mike Huffaker, a Starostka Group
employee, stating that the Department of Health and Human
Services was requesting copies of the final bacteriological
testing results and that JEO Consulting did not have copies of
the results for two locations. Schultes asked Huffaker to fax
the missing results to JEO Consulting. On February 27, 2006,
Huffaker sent Schultes a fax indicating that the fax included
copies of the bacteriological testing results for the two loca-
tions that Schultes asked for in December. The test results
included in the fax had been performed in February.
During the spring of 2006, at Doniphan’s request, Starostka
Group performed additional sanitization work and bacteriologi-
cal testing on the water line in the southeast quadrant of the
project. There had been problems with contamination of that
water line, and Starostka Group was made aware that the water
quality in the southeast quadrant had to be improved before
final acceptance of the project would occur. After flushing and
chlorinating the line proved unsuccessful, another method for
cleaning out the line was used.
Decisions of the Nebraska Court of Appeals
VILLAGE OF DONIPHAN v. STAROSTKA GROUP UNLIMITED 469
Cite as 22 Neb. Ct. App. 464
In May 2006, Huffaker, on behalf of Starostka Group, sent
a fax to Schultes with passing test results from the southeast
quadrant and asking for immediate approval of the project in
its entirety. The Department of Health and Human Services
approved the water system in May 2006, when it received
proof of all the necessary passing water tests.
At the Board’s June 12, 2006, meeting, Schultes presented
the “Recommendation of Acceptance” of all work completed
by Starostka Group in the project. The Board unanimously
approved and signed the “Recommendation of Acceptance.”
Evidence was also presented at trial specifically in regard
to substantial completion. Sall testified that he considered
Starostka Group’s work to be substantially complete as of
December 12, 2005, when all but two punch list items were
complete and when Doniphan had paid Starostka Group all but
$2,000 of the total contract price. He testified that when he
signed the final application for payment in December 2005, he
believed the project was “100 percent complete” at that time.
He added that the two punch list items that were incomplete
could be done under the warranty. Sall testified that prior to
the Board’s December 2005 meeting, he did a walk-through
of the total project with Marc Starostka, an owner of Starostka
Group, and a Doniphan representative, and that they all agreed
everything had been completed according to the contract. He
further testified that at the Board’s December meeting, he told
the Board that the water tests had passed and that the Board
should now pay the second application for payment, which
it had previously delayed. Sall testified that at the end of the
Board’s December meeting, the Board wanted Starostka Group
to complete the two remaining punch list items, but that there
was no request for additional water testing. Sall testified that
he did not remember why additional water tests were done
after December 2005.
Starostka testified that at the time of the Board’s December
2005 meeting, the water lines and sanitary sewer system were
capable of being put to effective use. He testified that there
was one house in the subdivision at that time that was using a
portion of the water lines. Starostka testified that he considered
the additional sanitization work and bacteriological testing
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470 22 NEBRASKA APPELLATE REPORTS
done in the spring of 2006 to be warranty work. However,
Starostka acknowledged that pursuant to the contract, Starostka
Group’s 1-year warranty commenced when Doniphan signed a
“Recommendation of Acceptance.”
Francis Hannon, the maintenance supervisor for Doniphan,
testified that Starostka Group’s work was completed by
December 2005, with the assumption that the water samples
had passed testing. Hannon testified that he tests Doniphan’s
water lines for bacteria on a monthly basis as part of his
maintenance-related functions. Hannon testified that in
January 2006, he ran water tests from various locations and
discovered that several water samples did not pass. He testi-
fied that Starostka Group was notified and became involved
in trying to get the water lines to pass testing. Hannon stated
that Doniphan was able to utilize the entire work done by
Starostka Group only after getting passing water tests in
May 2006.
Doniphan called two witnesses to testify at trial: Daniel
Treat, a member of the Board, and Dana Peterson, a civil
engineer called as an expert witness. Treat testified that at
the Board’s December 2005 meeting, it was his understand-
ing that the water tests had passed. He testified that after the
Board’s meeting, it was discovered that the water tests had
not passed. Treat testified that Doniphan could not utilize
Starostka Group’s entire work until after the water tests passed
in May 2006.
Peterson testified that based on industry standards, substan-
tial completion occurs when the project has been sufficiently
completed such that it can serve its intended purpose. He
testified that in his opinion, the project at issue was substan-
tially completed in May 2006, because that is when all the test
results passed. Peterson also testified that the water test results
were not a minor and unimportant aspect of the project, but,
rather, were a critical part of the project. Peterson testified that
there is no guarantee that a section of water line that passes
testing will not later become contaminated such that the section
does not pass testing.
At the close of Starostka Group’s case in chief, both par-
ties moved for a directed verdict. The trial court overruled
Decisions of the Nebraska Court of Appeals
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Cite as 22 Neb. Ct. App. 464
both motions. After Doniphan presented its evidence, both
parties renewed their motions for directed verdict, which
were overruled.
The jury returned a verdict in favor of Starostka Group,
finding that Starostka Group substantially completed its work
under the contract prior to February 11, 2006, more than 4
years prior to the filing of the complaint. The trial court entered
judgment upon the verdict of the jury, found that Doniphan’s
breach of contract claim was barred by the statute of limita-
tions, and dismissed Doniphan’s claim.
Doniphan subsequently filed a motion for judgment notwith-
standing the verdict pursuant to Neb. Rev. Stat. § 25-1315.02
(Reissue 2008) or, in the alternative, a motion for new trial
under Neb. Rev. Stat. § 25-1144.01 (Reissue 2008). The trial
court overruled the motions.
ASSIGNMENTS OF ERROR
Doniphan assigns that the trial court erred in (1) failing to
grant its motion for directed verdict and (2) failing to grant
its motion for judgment notwithstanding the verdict or, in the
alternative, for new trial.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Wulf v. Kunnath, 285 Neb.
472, 827 N.W.2d 248 (2013).
[2] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can draw
but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law. Id.
[3,4] On a motion for judgment notwithstanding the ver-
dict, the moving party is deemed to have admitted as true all
the relevant evidence admitted that is favorable to the party
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472 22 NEBRASKA APPELLATE REPORTS
against whom the motion is directed, and, further, the party
against whom the motion is directed is entitled to the benefit
of all proper inferences deducible from the relevant evidence.
Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434
(2007). To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law
and may do so only when the facts are such that reasonable
minds can draw but one conclusion. Id.
[5] A motion for new trial is addressed to the discretion of
the trial court, whose decision will be upheld in the absence of
an abuse of discretion. R & D Properties v. Altech Constr. Co.,
279 Neb. 74, 776 N.W.2d 493 (2009).
ANALYSIS
Doniphan assigns that the trial court erred in failing to
grant its motion for directed verdict and its motion for judg-
ment notwithstanding the verdict or, in the alternative, a new
trial. Doniphan argues that the court erred because, based on
the evidence presented, reasonable minds can draw only one
conclusion—that substantial completion of the project did not
occur until May 2006. It contends that because the lawsuit
was filed on February 11, 2010, less than 4 years thereafter,
its breach of contract claim cannot be barred by the statute
of limitations.
The parties stipulated at trial that Doniphan’s claims were
controlled by the 4-year statute of limitations period that
applies to actions against builders and contractors arising from
construction activities. See Neb. Rev. Stat. § 25-223 (Reissue
2008). The parties further agreed that the 4-year statute of
limitations commenced to run from the date of substantial
completion of Starostka Group’s work under the contract. The
instructions submitted to the jury defined the term “substantial
completion” as follows:
In a construction contract, substantial completion is
shown when all the essential elements necessary for the
full accomplishment of the purposes of the contract have
been performed with such an approximation to complete
performance that the owner obtains substantially what is
called for by the contract and the resultant work can be
Decisions of the Nebraska Court of Appeals
VILLAGE OF DONIPHAN v. STAROSTKA GROUP UNLIMITED 473
Cite as 22 Neb. Ct. App. 464
put to its intended purpose. Thus, to establish substantial
completion, any deviations from the contract must be
relatively minor and unimportant.
See, Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507
N.W.2d 465 (1993); Pioneer Enterprises v. Edens, 216 Neb.
672, 345 N.W.2d 16 (l984).
The contract at issue also provided a definition of the term
“substantial completion” and a process by which substantial
completion could have been determined for the project:
Substantial Completion—The time at which the Work (or
a specific part thereof) has progressed to the point where,
in the opinion of ENGINEER, the Work (or a specified
part thereof) is sufficiently complete, in accordance with
the Contract Documents, so that the Work (or a specified
part thereof) can be utilized for the purposes for which it
is intended.
The contract further provided that “[w]hen CONTRACTOR
considers the entire Work ready for its intended use
CONTRACTOR shall notify OWNER and ENGINEER in
writing that the entire Work is substantially complete (except
for items specifically listed by CONTRACTOR as incomplete)
and request that ENGINEER issue a certificate of Substantial
Completion.”
Although the contract provided a process that could have
been used for determining the substantial completion date, the
process was not initiated by Starostka Group, no substantial
completion was ever declared, and no certificate of substan-
tial completion was ever issued. Sall testified that it was not
unusual for a certificate of substantial completion to not be
issued and to move forward to final completion. Starostka
testified that Starostka Group typically does not ask that a
certificate of substantial completion be issued. Because there
was no substantial completion date determined by the parties,
it became a question of fact for the jury to decide, ultimately
leading to a determination of whether Doniphan’s cause of
action against Starostka Group was filed within the 4-year stat-
ute of limitations.
The jury had to determine whether the date of substantial
completion of the project was in December 2005, as argued by
Decisions of the Nebraska Court of Appeals
474 22 NEBRASKA APPELLATE REPORTS
Starostka Group, or was in May 2006, as argued by Doniphan.
Doniphan argues that substantial completion did not occur until
May 2006, because the water line in the southeast quadrant
did not have passing bacteriological test results until then,
and therefore, the entire water system could not be used for
its intended purpose before May 2006. It further suggests that
Starostka Group’s contractual work of disinfecting the water
lines and obtaining passing bacteriological test results was
critical to Doniphan’s ability to use the water system and not a
“minor and unimportant” deviation from the contract.
A provision in the contract specifically required Starostka
Group to disinfect the water system and provide passing bacte-
riological tests for the entire system. The specification required
two consecutive passing test results taken in a set at least 24
hours apart, from various stations, so as to ensure that the entire
system had been properly tested and sanitized. In the event of
a bacteriological test failure, Starostka Group was required to
repeat the disinfection process and repeat the testing. Doniphan
contends that Starostka Group’s work in meeting this specifi-
cation continued into the spring of 2006, because portions of
the system remained contaminated by coliform, specifically the
southeast quadrant, and no passing tests were achieved on that
quadrant until May 2006.
There was evidence presented that Starostka Group was
sanitizing and testing the water line in the southeast quad-
rant in the spring of 2006 and that passing test results were
obtained in May 2006. In May 2006, Starostka Group sent
JEO Consulting a fax containing passing tests for the southeast
quadrant and asking for immediate approval of the project in
its entirety. The “Recommendation of Acceptance” was not
approved and signed by Doniphan until June 2006, after the
southeast quadrant had passing tests. Further, the Department
of Health and Human Services did not approve the water
system until May 2006, when it received proof of all passing
water tests. Hannon and Treat testified that Doniphan was able
to utilize the entire work done by Starostka Group only after
getting passing water tests in May 2006. In addition, Peterson
testified that in his opinion, the project was substantially com-
pleted in May 2006.
Decisions of the Nebraska Court of Appeals
VILLAGE OF DONIPHAN v. STAROSTKA GROUP UNLIMITED 475
Cite as 22 Neb. Ct. App. 464
Although there is evidence to support Doniphan’s position
that substantial completion did not occur until May 2006, there
is also evidence to support Starostka Group’s position that
substantial completion occurred in December 2005. An exhibit
was entered into evidence containing two consecutive passing
tests from the water line in the southeast quadrant in the fall
of 2005, specifically November 10 and 16. Doniphan contends
that these two passing tests do not satisfy the contract provi-
sion because they are not part of the same set. Doniphan also
points out that the exhibit contains another water test from
November 17 that shows a failed result. However, there is no
indication in the evidence as to whether or not the subsequent
failed test rendered the two passing tests void. On the face
of the testing provision in the contract, the two consecutive
tests result in the segment’s passing the testing requirement.
Peterson, Doniphan’s own expert, testified that there is no
guarantee that a water line that passes bacteriological testing
at one point will never be contaminated in the future. Peterson
agreed that the purpose of Hannon’s performing monthly tests
of the water lines in Doniphan was to ensure that the water had
not been compromised.
Further, even if there were no passing tests from the water
line in the southeast quadrant in accordance with the contract
until May 2006, there was other evidence presented such that
reasonable minds could differ and draw more than one conclu-
sion from the evidence in regard to when substantial comple-
tion occurred.
First, the contract specifically stated that disinfection of the
water lines and bacteriological testing were not considered pri-
mary to the work indicated in the project.
Second, in December 2005, the Board approved Starostka
Group’s second payment request, which it had postponed
the month before until Starostka Group could sanitize the
water system and provide passing bacteriological tests. The
Board approved the second payment request based on Sall’s
report that the water lines had passed water tests. The $2,000
that was withheld in December 2005 related to the third
and final request for payment and had nothing to do with
the testing of the water lines. At this point, the Board had
Decisions of the Nebraska Court of Appeals
476 22 NEBRASKA APPELLATE REPORTS
approved payment of all but $2,000 on a $200,000 contract.
The “Recommendation of Acceptance” submitted by Sall at
the Board’s December 2005 meeting was denied based only on
the two punch list items that needed to be completed for which
the $2,000 was withheld.
Third, Sall testified that he considered Starostka Group’s
work to be substantially complete as of December 12, 2005,
when all but two punch list items were complete and when
Doniphan had paid Starostka Group all but $2,000 of the total
contract price. Pursuant to the contract, Sall, on behalf of JEO
Consulting, had a duty to inspect Starostka Group’s work and
judge the work completed before submitting his recommenda-
tion to Doniphan for final acceptance. Sall testified that when
he signed the final application for payment in December 2005,
he believed the project was complete at that time, with the
exception of two small punch list items. He also testified that
prior to the Board’s December meeting, he did a walk-through
of the total project with Starostka and a Doniphan representa-
tive, and that they all agreed that everything had been com-
pleted according to the contract.
Fourth, Starostka testified that at the time of the Board’s
December 2005 meeting, the water lines and sanitary sewer
system were capable of being put to effective use. He also
testified that a newly constructed home in the subdivision was
receiving service from the water lines constructed by Starostka
Group at that time. Although the home was not using the entire
water system, its use is still evidence that the water lines were
being used for their intended purpose.
A directed verdict is proper only when reasonable minds can
draw but one conclusion from the evidence, where an issue
should be decided as a matter of law. See Bellino v. McGrath
North, 274 Neb. 130, 738 N.W.2d 434 (2007). Similarly, to
sustain a motion for judgment notwithstanding the verdict, the
court resolves the controversy as a matter of law and may do
so only when the facts are such that reasonable minds can draw
but one conclusion. Id. The jury in the instant case was pre-
sented with the question of fact as to when substantial comple-
tion of the contract occurred. Both parties submitted evidence
supporting their opposing positions as to when substantial
Decisions of the Nebraska Court of Appeals
VILLAGE OF DONIPHAN v. STAROSTKA GROUP UNLIMITED 477
Cite as 22 Neb. Ct. App. 464
completion occurred. Because reasonable minds could differ
and draw more than one conclusion from the evidence, includ-
ing a conclusion that substantial completion occurred prior
to February 11, 2006, the trial court did not err in overruling
Doniphan’s motion for directed verdict or its motion for judg-
ment notwithstanding the verdict.
[6] In regard to Doniphan’s alternative motion for new trial,
a motion for new trial is addressed to the discretion of the trial
court, whose decision will be upheld in the absence of an abuse
of discretion. See R & D Properties v. Altech Constr. Co., 279
Neb. 74, 776 N.W.2d 493 (2009). Doniphan argues that it was
entitled to a new trial because the jury’s verdict and the judg-
ment entered thereon were not supported by sufficient evidence
and were contrary to law. A jury verdict will not be set aside
unless clearly wrong, and it is sufficient if any competent evi-
dence is presented to the jury upon which it could find for the
successful party. Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d
248 (2013).
As set forth above, Starostka Group presented substantial
and competent evidence to support its position that it had sub-
stantially completed its work in December 2005. The trial court
did not abuse its discretion in overruling Doniphan’s motion
for new trial.
CONCLUSION
We conclude that the trial court did not err in overruling
Doniphan’s motion for directed verdict and motion for judg-
ment notwithstanding the verdict or, in the alternative, motion
for new trial. There was sufficient and competent evidence
presented for the jury to conclude that Starostka Group had
substantially completed its work under the contract prior to
February 11, 2006. Accordingly, the judgment of the dis-
trict court entering judgment on the verdict and dismissing
Doniphan’s breach of contract action against Starostka Group
as being barred by the statute of limitations is affirmed.
Affirmed.