McGill Restoration v. Lion Place Condo. Assn.
309 Neb. 202
| Neb. | 2021Background
- McGill Restoration contracted orally in 2009 to repair part of Lion Place Condominium’s façade for $25,000, completed the work, invoiced Lion, and was not paid.
- Lion later alleged the repairs were defective and asserted counterclaims; the case migrated from county to district court because of the counterclaim size.
- Pretrial, Lion’s new counsel told the court the matter would be a bench trial; Lion later sought a jury, but the court found Lion had waived the jury right and refused withdrawal due to prejudice/delay.
- Lion identified several contractors as expert/fact witnesses but provided limited expert disclosures; the court excluded proposed expert opinions by Markuson and Moore and later found Michael Henery’s proffered expert opinion lacked adequate foundation.
- The court excluded a post-filing meeting letter and related testimony as compromise/settlement communications under Neb. Rev. Stat. § 27-408. The judge found McGill’s work was performed in a workmanlike manner, entered judgment for $25,000, awarded prejudgment interest, and assessed limited attorney fees to McGill as sanctions for frivolous defenses.
Issues
| Issue | McGill’s Argument (Plaintiff) | Lion’s Argument (Defendant) | Held |
|---|---|---|---|
| Waiver of jury trial | Lion consented in open court to bench trial; waiver valid | No written waiver; counsel later revoked understanding and requested jury | Waiver occurred by oral consent on the record; court did not abuse discretion refusing withdrawal |
| Admissibility of settlement communications (Ex. 34) | Ex. 34 was a compromise and inadmissible under § 27-408 | Statements were admissions or admissible for impeachment/other purpose | Statements were part of settlement negotiations and excluded; "another purpose" exception did not apply |
| Need for expert proof on workmanship / Michael’s qualifications | Expert needed; McGill argued Lion had no competent expert | Lion argued lay testimony and Michael’s testimony sufficed to show unworkmanlike work | Expert testimony was required given technical issues; Michael lacked foundation and his causation opinion was unreliable |
| Exclusion/limitation of Markuson & Moore | Their lay factual observations and bids would show McGill’s work later had to be redone | They were contractors and could give lay observations and explain bids | Court properly limited testimony because witnesses lacked foundation to opine that bids addressed McGill’s prior work; no abuse of discretion |
| Attorney fees as sanction | Fees warranted because Lion persisted without a viable expert and defense became frivolous | Lion contended defenses were reasonable and pursued in good faith | Court did not abuse discretion in awarding fees under § 25-824; Lion should have known it could not prevail without expert proof |
| Prejudgment interest | McGill sought statutory interest; requested start date tied to invoice | Lion argued claim unliquidated and pleading rules not strictly complied with | Court awarded interest (12% from Nov. 1, 2009) under § 45-104; procedural pleading rule noncompliance was not dispositive |
Key Cases Cited
- Maloley v. Cent. Neb. Pub. Power & Irr. Dist., 303 Neb. 743 (bench-trial factual findings are treated like a jury verdict)
- Pitts v. Genie Indus., 302 Neb. 88 (standards for admitting expert testimony)
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (expert testimony foundation and reliability requirements)
- Jacobson v. Shresta, 288 Neb. 615 (court may permit withdrawal of jury-waiver request only when timely and not prejudicial)
- Baker v. Blue Ridge Ins. Co., 215 Neb. 111 (compromise/settlement negotiations are inadmissible under the exclusionary rule)
- VRT, Inc. v. Dutton-Lainson Co., 247 Neb. 845 (elements of contract claims and substantial performance)