McGill Restoration v. Lion Place Condo. Assn.
309 Neb. 202
| Neb. | 2021Background
- McGill Restoration contracted orally with Lion Place Condominium Association in 2009 to repair portions of the building facade for $25,000; McGill completed the work and invoiced Lion, which did not pay.
- Lion later counterclaimed alleging McGill’s work was unworkmanlike and sought damages; the case proceeded to district court after transfer from county court.
- At a February 2015 hearing Lion’s new counsel stated the case would be a bench trial; Lion later sought to withdraw that statement and demand a jury trial.
- McGill moved to exclude portions of Lion’s evidence: (a) certain witnesses’ expert opinions for lack of disclosure/foundation, and (b) a 2011 meeting letter and related statements as compromise evidence under Neb. Evid. R. 408.
- The court limited Markuson’s and Moore’s testimony to lay/fact testimony, excluded their expert opinions and exhibits where foundation was lacking, excluded the 2011 compromise communications, and found Lion’s designated expert (Michael) lacked adequate foundation.
- The bench found for McGill on breach of contract ($25,000), awarded prejudgment interest and limited attorney fees to McGill as sanctions for Lion’s pursuit of claims without necessary expert support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury-trial waiver | McGill: Lion’s counsel consented to bench trial at hearing | Lion: No valid waiver on the journal; new counsel didn’t intend to waive | Waiver found by oral consent in open court; court properly denied withdrawal as prejudicial to McGill |
| Need for expert proof of unworkmanlike work | McGill: technical issues require expert proof; Lion lacked expert | Lion: lay observations and subsequent failures show breach without expert | Court held expert testimony required here; bench reasonably credited absence of adequate expert proof |
| Qualification/exclusion of Michael (Lion’s expert) | Lion: Michael’s experience sufficed to opine on workmanship | McGill: Michael lacked relevant foundation, testing, and up-to-date expertise | Court excluded Michael’s expert opinions for insufficient foundation; no abuse of discretion |
| Exclusion of Markuson/Moore testimony and bids | Lion: their lay/fact testimony and bids show McGill’s poor work and need to redo | McGill: they lack foundation to opine about McGill’s specific repairs | Court limited them to lay observations and excluded expert/bid opinion where foundation missing; no abuse of discretion |
| Admission of 2011 meeting letter (Exhibit 34) | Lion: statements were admissions or impeachment material, not settlement | McGill: letter and statements were settlement negotiations protected by evidence rule | Court excluded the letter and related testimony under rule barring compromise evidence; no clear error |
| Prejudgment interest and attorney fees | McGill: entitled to interest and fees because Lion persisted without expert support | Lion: procedural defects and lack of statutory preconditions | Court awarded interest (under §45-104) and limited fees under §25-824 as Lion should have known it could not prevail without expert proof; awards affirmed |
Key Cases Cited
- Maloley v. Central Neb. Pub. Power & Irr. Dist., 931 N.W.2d 139 (2019) (bench-trial factual findings not set aside unless clearly wrong)
- Pitts v. Genie Indus., 921 N.W.2d 597 (2019) (review of legal standards for admitting expert testimony is de novo; trial court’s application reviewed for abuse of discretion)
- Roskop Dairy v. GEA Farm Tech., 871 N.W.2d 776 (2015) (expert must have good grounds for each step of analysis; opinion must be supported by sufficient facts/data)
- Jacobson v. Shresta, 849 N.W.2d 515 (2014) (trial court may permit withdrawal of a jury-trial waiver if timely and not prejudicial)
- Baker v. Blue Ridge Ins. Co., 337 N.W.2d 411 (1983) (evidence of compromise/settlement negotiations is inadmissible under the exclusionary rule)
- McCully, Inc. v. Baccaro Ranch, 816 N.W.2d 728 (2012) (appellate review of bench-trial findings; scope of inferences and credibility determinations)