McGill Restoration v. Lion Place Condo. Assn.
309 Neb. 202
| Neb. | 2021Background
- McGill Restoration performed repair work for Lion Place Condominium Association in 2009 and invoiced $25,000; Lion refused payment and McGill sued for breach of contract/quantum meruit.
- Lion counterclaimed alleging McGill’s repairs were deficient and unworkmanlike; the case was transferred to district court and set for a bench trial after counsel stated the trial would be to the court.
- Pretrial discovery disputes arose over expert disclosures; the court limited two contractor witnesses (Markuson, Moore) to lay factual testimony and reserved ruling on Lion’s proffered expert (Michael); McGill moved in limine to exclude compromise communications (Exhibit 34).
- At trial McGill’s owner Richard testified to performance and methodology; Lion’s witnesses described deterioration but the court found Lion offered no adequate expert proof linking failures to McGill’s work; the court excluded Exhibit 34 as settlement communications.
- The court entered judgment for McGill for $25,000, awarded prejudgment interest at 12% from November 1, 2009, and awarded $5,920 in attorney fees, finding Lion’s post‑2015 litigation conduct frivolous; Lion appealed.
Issues
| Issue | McGill's Argument | Lion's Argument | Held |
|---|---|---|---|
| Waiver of jury trial | Lion’s counsel explicitly agreed in open court to a bench trial; waiver valid | Waiver not properly recorded; Lion never authorized waiver | Waiver occurred by oral consent in open court under §25‑1126(3); court did not abuse discretion denying withdrawal |
| Exclusion of settlement evidence (Exhibit 34) | Exhibit 34 and meeting statements were settlement/compromise communications and inadmissible under §27‑408 | Statements were admissions against interest or admissible for impeachment | Exclusion affirmed: statements were part of compromise negotiations and not admissible for impeachment or as admissions |
| Exclusion/limitation of Markuson & Moore testimony | Lay observations allowed but expert opinions/explanations requiring foundation were properly excluded | Their lay testimony and bids showed McGill’s work had to be redone and thus was defective | Court did not abuse discretion; witnesses lacked foundation to opine that bids repaired the same work McGill did; exclusion proper |
| Need for expert proof / Michael’s qualification as expert | Expert proof was required to establish technical causation and workmanship; Michael lacked foundation | Lay observations (and Michael) sufficient to show work failed (no expert needed) | Expert testimony required given technical issues and multiple possible causes; Michael’s opinion lacked sufficient foundation and was properly excluded |
| Prejudgment interest & attorney fees | Prejudgment interest and fees were statutory/appropriate given facts; Lion litigated without necessary expert | Prejudgment interest improperly claimed; fees improper and defense not frivolous | Award of prejudgment interest (12% from Nov.1,2009) and attorney fees affirmed; fee award not an abuse of discretion |
Key Cases Cited
- Maloley v. Central Neb. Pub. Power & Irr. Dist., 303 Neb. 743 (bench‑trial factual‑findings standard)
- Pitts v. Genie Indus., 302 Neb. 88 (legal standard for admitting expert testimony)
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (review of expert‑admission standards)
- Jacobson v. Shresta, 288 Neb. 615 (timeliness and withdrawal of trial waiver)
- Baker v. Blue Ridge Ins. Co., 215 Neb. 111 (scope and public‑policy basis of compromise‑evidence exclusion)
- McCully, Inc. v. Baccaro Ranch, 284 Neb. 160 (appellate review of bench‑trial findings)
- VRT, Inc. v. Dutton‑Lainson Co., 247 Neb. 845 (substantial performance requirement for contract recovery)