Ulferts v. Prokop

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
ULFERTS V. PROKOP
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).
MARK ULFERTS, APPELLEE,
V.
ROBERT J. PROKOP, APPELLANT.
Filed January 24, 2017. No. A-15-651.
Appeal from the District Court for Nance County: RACHEL A. DAUGHERTY, Judge.
Affirmed.
Robert J. Prokop, pro se.
Darren S. Wright, of Bird & Wright, P.C., for appellee.
MOORE, Chief Judge, and INBODY and PIRTLE, Judges.
PIRTLE, Judge.
INTRODUCTION
Mark Ulferts brought a complaint against Robert J. Prokop for breach of contract when
Prokop declined to pay the final bill for farming services rendered by Ulferts during the 2010
contract year. Prokop appeals from an order of the district court for Saline County, entering
judgment based on a unanimous jury verdict in favor of Ulferts in the amount of $5,348.76.
BACKGROUND
Prokop and Ulferts entered into a custom farming agreement in 1998. A written contract
was prepared, but was not signed by the parties. Ulferts asserted there were multiple oral
amendments to the farming agreement, the terms of which were agreed upon by both parties, but
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never set forth in writing. The agreement between the parties continued on a year-by-year basis
through 2010.
In November 2010, Prokop sent Ulferts notice, by certified mail, that he was terminating
their agreement. In January 2011, Ulferts submitted a “final bill” to Prokop for unreimbursed
expenses and services rendered during the 2010 farming year. Ulferts subtracted from the final bill
the amounts he owed to Prokop for pasture rights and hay. When Prokop did not make the final
payment, Ulferts brought this action for $5,348.76, the amount charged in the final bill.
Prokop filed a counterclaim which was summarily dismissed on November 7, 2014. Due
to Prokop’s failure to comply with pretrial orders, the court ordered that he not be permitted to
introduce evidence which was not disclosed in his responses to Ulferts’ interrogatories. He was
also barred from calling witnesses who were not identified in his responses to Ulferts’
interrogatories.
A jury trial was held on June 15 and 16, 2015 in the district court for Nance County. Ulferts
testified that he submitted the final bill to Prokop by mail on January 10, 2011 and the mailing
included receipts for the items purchased on Prokop’s behalf. He sent the bill again, by first class
mail, in February and March. He sent the bill by certified mail in May 2011. Ulferts offered Exhibit
6, a return receipt signed by Prokop on May 10. Ulferts testified that Prokop never paid him for
the charges included in the bill.
The unsigned contract prepared in 1998 was entered into evidence as Exhibit 7. The
document provides that payment for Ulferts’ farming efforts would be paid in installments on May
15, July 15, and “November 1 or when harvest is completed.” Ulferts testified that each year
Prokop made payments on May 15, July 15, and in the fall, after the corn was harvested. The
amount of these bills were an “average” of how much was owed “based on the amount of acres,
corn and soybeans were planted.” Ulferts added that he would send a “final bill sometime in
December or early January.” The final bill included the cost of labor and a detailed list of his
out-of-pocket expenses. He specifically testified that he received four payments from Prokop each
year of the agreement prior to 2010. He stated that Prokop never expressed any concern that bills
were not arriving on time, and Prokop did not dispute the type of expenses or the labor charges
calculated in the final bills.
Ulferts testified that the expenditures and labor set out in the 2010 final bill were typical
of the arrangement with Prokop and were the costs incurred for Prokop’s benefit. Prokop never
contacted Ulferts about the final bill; he did not acknowledge receipt of the bill, or state whether
he intended to pay it.
Prokop testified that he signed one copy of the contract for the custom farming agreement.
He stated that he provided it to Ulferts, but it was never returned with Ulferts’ signature. Prokop
testified that he operated “as much as possible under that agreement,” letting Ulferts “do the basic
farming,” and doing the rest himself. Prokop testified that the “fundamental portion” of the
agreement did not change over time. He testified that Ulferts’ specific duties did change over time,
and these changes were not recorded.
Prokop said that he provided the necessary supplies for the agreement, but said there were
“a few” expenses that Prokop reimbursed Ulferts for, beyond the agreed upon price per acre. As
far as Prokop was concerned there was never any agreement or contract regarding Ulferts’ rental
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of pasture or stalks, or purchase of hay. He was aware that Ulferts used his land for pasture from
1998 to 2010, and stated that Ulferts always said that he subtracted these items from his expenses.
Prokop testified that he did not recall receiving bills, such as Ulferts’ 2010 final bill, during
the three previous years. He testified that he did not receive the final bill by mail in January or
February 2011. He said he became aware of Ulferts’ claim for approximately five thousand dollars
in February 2011 when he came in contact with Ulferts while stopped on a country road with a flat
tire. Prokop testified that he received a certified demand letter from Ulferts, but that the letter did
not contain an itemized list representing the amount due.
The case was submitted to the jury, who found that Ulferts met his burden of proof. The
jury assessed damages for the full amount of Ulferts’ claim. Prokop timely appeals.
ASSIGNMENTS OF ERROR
Prokop’s asserts that (1) Ulferts failed to present factual evidence; (2) Ulferts breached the
contract; (3) Ulferts failed to follow the rules of discovery; (4) the Court exhibited bias and
prejudice toward him; and, (5) he had inadequate legal counsel. Prokop also filed a document titled
“Cross Appeal and Appellate Brief” which contains additional “issues presented for review.”
ANALYSIS
SUFFICIENCY OF EVIDENCE
Prokop asserts that Ulferts failed to present sufficient factual evidence to support the
findings of the jury. He argues that Ulferts did not offer “acceptable” evidence including “invoices,
phone records, record of work schedule and where, general documentary evidence [sic].”
The Nebraska Supreme Court has stated that “in determining the sufficiency of the
evidence to sustain a verdict in a civil case, an appellate court considers the evidence most
favorably to the successful party and resolves evidentiary conflicts in favor of such party, who is
entitled to every reasonable inference deducible from the evidence.” Pierce v. Landmark Mgmt.
Group, 293 Neb. 890, 880 N.W.2d 885 (2016).
While additional evidence might have been beneficial, the jury concluded that the facts, as
presented, supported a finding in Ulferts’ favor. Upon our review of the evidence, we conclude
that the evidence was sufficient to support the jury’s verdict.
Prokop also argues that Ulferts did not provide proper or sufficient foundation for the
evidence provided and that Ulferts relied on “general heresay [sic] in what the Plaintiff considered
evidenciary [sic] material.” Prokop’s citation to the record corresponds with his objection to
Exhibit 5 on the basis that there was “no proper and sufficient foundation” showing that the letter
was “posted and received.” Prokop’s objection was sustained.
Following Prokop’s objection, Ulferts testified that he prepared the document on January
10, 2011 and sent it to Prokop by first class mail on the same day. Ulferts testified that he provided
sufficient postage and he did not receive the letter back as being undelivered. The document was
received as Exhibit 5, over Prokop’s renewed objection. Ulferts’ testimony provided foundation
for the document and was not hearsay. Thus the court did not err in overruling Prokop’s renewed
objection. Prokop does not specifically identify or argue that there were any additional
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foundational objections which should have been sustained. To the extent that Prokop argues that
the court erred in receiving Exhibit 5, we find that this assignment of error is without merit.
BREACH OF CONTRACT
Prokop asserts that Ulferts made an initial breach of the clear terms of the contract. He
states that the court determined that he breached the contract when he failed to pay Ulferts in
January, and argues that Ulferts’ alleged breach occurred first. Prokop argues that Ulferts’ breach
would have absolved him of any obligation under the contract and he argues that the court’s
findings were arbitrary, capricious, and biased.
Any argument regarding Ulferts’ alleged breach was not presented at trial, and Prokop did
not offer or request a jury instruction on this issue. Pro se litigants, like any other, may not present
issues, arguments and theories for the first time on appeal. Friedman v. Friedman, 290 Neb. 973,
863 N.W.2d 153 (2015). In the absence of plain error, when an issue is raised for the first time in
an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in
resolving an issue never presented and submitted to it for disposition. Woodle v. Commonwealth
Land Title Ins. Co., 287 Neb. 917, 844 N.W.2d 806 (2014). We find no plain error in the jury’s
finding in Ulferts’ favor.
RULES OF DISCOVERY
Prokop asserts that Ulferts failed to follow the rules of discovery. Specifically he asserts
Ulferts failed to provide Exhibit 7 to him for inspection prior to trial. He argues that he was only
allowed ten minutes to review the contract on the day of trial. Prokop does not indicate that he
made any objection at trial to Ulfert’s alleged failure to follow the discovery rules. A lower court
cannot commit error in resolving an issue never presented and submitted to it for disposition.
Friedman v. Friedman, supra. The district court was not provided with an opportunity to rule on
this issue. In the absence of plain error, this assignment of error is waived.
Ultimately Exhibit 7 was offered into evidence by Prokop, and both parties testified
regarding its contents. Even if it was not provided to Prokop prior to trial, the introduction of
Exhibit 7 into evidence was not prejudicial to Prokop and we find no plain error. Thus, this
assignment of error is without merit.
JUDICIAL BIAS
Prokop asserts the district court exhibited prejudice and bias toward him during the
proceedings. He argues that there appeared to be “collusion between the Court and the Plaintiff”
and that his hands were tied by the court’s ruling that he was not allowed to conduct discovery.
Prokop refers to matters discussed at a pretrial hearing, however a transcript of the hearing was
not provided to this court for review. As a general proposition, it is incumbent upon the appellant
to present a record supporting the errors assigned; absent such a record, an appellate court will
affirm the lower court’s decision regarding those errors. Pierce v. Landmark Mgmt. Group, supra.
The record is insufficient to support his assigned errors regarding proceedings held before trial.
Prokop asserts the trial court’s rulings regarding pretrial discovery were prejudicial to him.
The Nebraska Supreme Court has stated that “it is generally too late to raise the issue of
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disqualification after the matter is submitted for decision” based on the principle that a party may
not gamble on a favorable decision. Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554
(2013). The issue of disqualification is timely if submitted at the earliest practicable opportunity
after the disqualifying facts are discovered. Id. Prokop was obligated to make a timely objection
to any perceived misconduct or bias by the trial judge, and if the judge’s fairness of impartiality
regarding pretrial matters was called into question, Prokop should have made a motion for recusal
before or during trial. Prokop made no such objection or motion, therefore the issue of
disqualification was waived.
Prokop also asserts the trial court allowed hearsay evidence which was prejudicial to him.
He does not refer to any specific instances of hearsay or indicate that he made any hearsay
objections. As previously stated, a lower court cannot commit error in resolving an issue never
presented and submitted to it for disposition. Friedman v. Friedman, supra.
ADEQUACY OF LEGAL COUNSEL
Prokop asserts that he had inadequate legal representation because counsel failed to “ask
for appropriate legal remedies” on several occasions during trial. This court has held that in
Nebraska, the claim of ineffective assistance of counsel is reserved for a defendant in a criminal
action. In re Interest of Azia B., 10 Neb. Ct. App. 124, 626 N.W.2d 602 (2001). A lawsuit for
malpractice is the usual remedy for one dissatisfied with counsel’s performance in a civil action.
The district court had no part in retention of Prokop’s legal counsel, therefore there is no
action for this court to review on appeal.
PROKOP’S “CROSS APPEAL”
Prokop filed a document titled “Cross Appeal and Appellate Brief” on December 3, 2015.
This document contains additional assignments of error. The Nebraska Supreme Court rules do
not allow an appellant to file a cross-appeal, or to raise additional errors outside of an appellant’s
brief. Only an appellee is specifically permitted to file a cross appeal, and even then it must be
undertaken in the manner provided by the Nebraska Supreme Court rules. See Neb. Ct. R. App. P.
§ 2-109(D)(4).
The rule governing the appellant’s brief states that “Each assignment of error shall be
separately numbered and paragraphed, bearing in mind that consideration of the case will be
limited to errors assigned and discussed.” Neb. Ct. R. App. P. § 2-109(D)(1)(e). Accordingly, the
errors assigned in Prokop’s purported cross-appeal will not be addressed.
CONCLUSION
We affirm the order of the district court, entering judgment in favor of Ulferts in the amount
of $5,348.76.
AFFIRMED.
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