de Vries v. L & L Custom Builders
968 N.W.2d 64
Neb.2021Background
- Tabe and Bonnie de Vries contracted with L&L Custom Builders to build a house substantially completed November 2012 on a lot adjoining an 80–150 foot river bluff.
- Drywall and foundation cracking first appeared in 2014; L&L and geotechnical consultants (TD2 and others) monitored and produced reports through May 2016 identifying multiple mechanisms of distress and recommending further study/monitoring.
- The de Vrieses discovered earlier TD2 preconstruction reports and observed bluff failures in May 2016; they sued L&L and TD2 on February 15, 2017 (claims for breach of contract/warranties and defective workmanship).
- TD2 settled and was dismissed before trial; the trial court barred evidence of that settlement from the jury and excluded the plaintiffs’ theory of "stigma" damages.
- The jury returned a general verdict for the de Vrieses, rejected L&L’s statute-of-limitations defense (special verdict on that issue), and awarded $418,175; L&L appealed on limitations, setoff, excessive damages, jury instructions, and evidentiary rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations (§25-223 discovery period) | de Vrieses: claims timely because discovery did not occur until May 2016 and L&L’s conduct lulled them into inaction | L&L: plaintiffs knew of defects earlier (by 2014–2015) so discovery period expired; judgment as matter of law warranted | Jury could reasonably find for plaintiffs; court correctly left discovery/estoppel for jury—no JNOV or directed verdict error |
| Equitable estoppel – pleading requirement | de Vrieses: estoppel may be proven to rebut affirmative defense without formal pleading | L&L: estoppel was not pled so plaintiffs could not rely on it | Court: estoppel need not be formally pled when used to rebut an asserted affirmative defense; admitting estoppel evidence was proper |
| Jury instruction specificity on limitations (dates) | de Vrieses: statutory instruction correctly quoted law and covered issues | L&L: instruction should have specified dates/told jury when discovery should have occurred | Objection was too vague and no requested alternative offered; instruction was legally sufficient; general verdict rule defeats the claim of prejudice |
| Setoff for TD2 settlement | de Vrieses: settlement with TD2 does not automatically offset recovery from L&L; plaintiffs produced no evidence that settlement covered identical damages | L&L: entitled to pro tanto setoff because TD2 settlement compensated same injury | Court denied setoff; L&L failed to produce settlement evidence at hearing and record did not show amount or allocation—denial upheld |
| Damages/remittitur (recoverable costs) | de Vrieses: investigation, remediation estimates, and incurred repairs are recoverable; amount supported by evidence | L&L: award excessive; many costs were litigation-related or duplicated and verdict should be limited to contractor estimate ($289,845) | Court upheld award; investigation/diagnostic expenses are recoverable and award was supported by evidence—no remittitur required |
| Exclusion of stigma damages | de Vrieses: expert would testify repairs performed yet market value remains diminished (stigma) | L&L: stigma theory speculative and premised on reputation rather than lingering physical defect | Court excluded stigma evidence because plaintiffs’ offer of proof showed purely reputational stigma absent residual physical defect; recovery for pure stigma is speculative and properly barred |
Key Cases Cited
- Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 (standard for directed verdict/JNOV and appellate review)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d 156 (sufficiency of evidence for jury verdict)
- Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (general verdict rule and presumptions)
- "L" Investments, Ltd. v. Lynch, 212 Neb. 319, 322 N.W.2d 651 (measure of damages for repairs vs. diminution in value)
- Jones v. Elliott, 172 Neb. 96, 108 N.W.2d 742 (application of repair-cost and diminution measures depending on facts)
- Reifschneider v. Nebraska Methodist Hosp., 233 Neb. 695, 447 N.W.2d 622 (equitable estoppel principles and plaintiff diligence)