McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202

Background

McGill Restoration performed $25,000 of masonry/ facade repair work for Lion Place Condominium Association in 2009, invoiced Lion, and was not paid. McGill sued for breach of contract/quantum meruit.
Lion counterclaimed alleging McGill’s repairs were unworkmanlike and unnecessary; the case moved from county to district court due to counterclaim size.
Pretrial, Lion’s new counsel orally confirmed a bench (non‑jury) trial; Lion later moved for a jury trial, which the district court denied as a waiver and because withdrawal would prejudice McGill.
Lion designated three persons as experts/fact witnesses (Markuson, Moore, Michael); the court limited Markuson and Moore to lay/fact testimony and later excluded Michael’s expert opinions for lack of foundation.
The court excluded a post‑complaint settlement/compromise letter (Exhibit 34) under Neb. Rev. Stat. § 27‑408. After a bench trial the court found for McGill, awarded $25,000 plus prejudgment interest (12% from Nov. 1, 2009) and $5,920 in attorney fees, finding Lion’s defenses frivolous for lack of expert proof. Lion appealed; this Court affirmed.

Issues

Issue	Plaintiff's Argument (McGill)	Defendant's Argument (Lion)	Held
Did Lion waive its right to a jury trial?	McGill: Yes — Lion’s counsel expressly consented in open court to a bench trial; waiver entered on the journal.	Lion: No — no formal journal entry showing an oral waiver; new counsel lacked authority/was mistaken.	Waiver found under §25‑1126(3): oral consent in open court by Lion’s counsel constituted waiver; trial court did not abuse discretion refusing withdrawal.
Were settlement communications (Exhibit 34 and related testimony) admissible?	McGill: Exclude — communications were compromise negotiations protected by §27‑408.	Lion: Admit — statements were admissions against interest or usable for impeachment/other purpose.	Exclusion affirmed: statements were part of compromise negotiations and not admissible for impeachment or as admissions under §27‑408.
Could Markuson and Moore testify about defects and repair bids as lay witnesses / should their excluded evidence be admitted?	McGill: Limit/exclude expert opinions — they lacked expert designation/foundation and discovery notice.	Lion: They were fact witnesses whose observations and bids showed McGill’s work needed replacement (lay evidence of poor workmanship).	Court did not abuse discretion: testimony/opinions on technical deficiencies and reasonableness of bids required expert foundation; offers of proof were insufficient or not pursued.
Was expert testimony required to prove unworkmanlike performance, and did Michael qualify as an expert?	McGill: Expert needed given technical nature; Michael lacked foundation and was unreliable.	Lion: No expert necessary — lay observations and temporal failure show breach; Michael was a qualified expert.	Expert testimony was necessary under these facts; Michael lacked sufficient qualifications, testing, knowledge of materials/scope, and causation support, so his opinions were excluded.
Were prejudgment interest and attorney fees properly awarded?	McGill: Yes — interest under §45‑104 (12% from billing) and fees under §25‑824 because Lion persisted without expert support.	Lion: Interest statutes/pleading rules not satisfied; fees inappropriate because defense not frivolous.	Affirmed: court permissibly awarded prejudgment interest (statutory basis and notice) and attorney fees (no abuse of discretion given Lion’s continued, unsupported litigation after discovery).

Key Cases Cited

Maloley v. Central Neb. Pub. Power & Irr. Dist., 303 Neb. 743 (Neb. 2019) (bench‑trial factual findings carry the effect of a jury verdict; appellate review limited).
Jacobson v. Shresta, 288 Neb. 615 (Neb. 2014) (trial court discretion to permit withdrawal of jury waiver if timely and not prejudicial).
Baker v. Blue Ridge Ins. Co., 215 Neb. 111 (Neb. 1983) (statutory exclusion and public‑policy basis for excluding compromise/settlement negotiations).
Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (Neb. 2015) (expert testimony needed for technical matters beyond ordinary experience and standards for expert admissibility).
VRT, Inc. v. Dutton‑Lainson Co., 247 Neb. 845 (Neb. 1995) (elements of breach and substantial performance in contract actions).