McGill Restoration v. Lion Place Condo. Assn.
309 Neb. 202
| Neb. | 2021Background
- McGill Restoration performed $25,000 of masonry/ facade repair work for Lion Place Condominium Association in 2009, invoiced Lion, and was not paid.
- Lion sued McGill with counterclaims alleging defective, unworkmanlike repairs; the case was tried in district court after transfer from county court.
- At a February 2015 hearing Lion’s new counsel orally agreed to a bench trial; Lion later sought to withdraw that waiver two weeks before trial. The court concluded Lion waived its jury right and denied withdrawal.
- The court excluded certain witnesses’ expert opinions (Markuson, Moore) and barred a settlement/compromise letter (exhibit 34) under Neb. Evid. R. § 27-408; it also found Lion’s proposed expert (Michael) lacked sufficient foundation.
- The bench found McGill substantially performed and acted in a workmanlike manner, entered judgment for $25,000 plus 12% prejudgment interest, and awarded McGill $5,920 in attorney fees as sanctions under Neb. Rev. Stat. § 25-824. Lion appealed.
Issues
| Issue | McGill's Argument (plaintiff) | Lion's Argument (defendant) | Held |
|---|---|---|---|
| Whether Lion waived its right to a jury trial | Oral consent by Lion’s counsel in open court constituted waiver; withdrawal would prejudice McGill | No journaled oral waiver; request to withdraw should have been allowed | Waiver found: oral consent in open court satisfied §25-1126; court did not abuse discretion denying withdrawal |
| Admissibility of compromise/settlement communications (Ex. 34) | Excluded under §27-408; statements made during settlement negotiations are inadmissible | Statements were admissions or admissible for impeachment or another purpose | Ex. 34 and related testimony excluded under §27-408; not admissible for impeachment or as admissions against interest |
| Exclusion/limitation of Markuson’s and Moore’s testimony | Limitation proper because they lacked foundation to offer expert opinions on McGill’s work; their bids did not demonstrate they were addressing McGill’s repairs | Their lay observations and repair bids showed McGill’s work had to be redone and were relevant | Court did not abuse discretion: foundation lacking; evidence did not reliably connect bids/observations to the exact work McGill performed |
| Necessity and exclusion of expert testimony; qualification of Michael | Expert testimony was required given technical nature; Michael was qualified | Michael’s opinions lacked foundation, relied on ground-level observation and temporal correlation only | Expert testimony was required; trial court did not abuse discretion in finding Michael unqualified—his opinions were unreliable |
| Prejudgment interest award and procedural pleading | Interest allowable (statute); complaint requested interest and Lion had opportunity to be heard | McGill failed to meet pleading rule §6-1108(a) so interest improper | Award affirmed; court permissibly relied on statutory basis (likely §45-104); strict form of §6-1108(a) not dispositive |
| Attorney fees as sanction under §25-824 | Fees warranted because Lion proceeded to trial without a viable expert and persisted in frivolous defenses | Defense/claims were not frivolous at outset; fees excessive | Fees affirmed: court did not abuse discretion in finding Lion’s post-discovery persistence frivolous and in the fee amount awarded |
Key Cases Cited
- Maloley v. Central Neb. Pub. Power & Irr. Dist., 303 Neb. 743 (bench-trial factual findings reviewed for clear error)
- Jaeger v. Jaeger, 307 Neb. 910 (definition and review of abuse of discretion)
- Pitts v. Genie Indus., 302 Neb. 88 (legal standard for admitting expert testimony)
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148 (expert must have "good grounds"; temporal correlation alone is unreliable for causation)
- Pioneer Enterprises v. Edens, 216 Neb. 672 (jury-waiver principles)
- VRT, Inc. v. Dutton-Lainson Co., 247 Neb. 845 (plaintiff must show substantial performance to prevail on contract)
- McCully, Inc. v. Baccaro Ranch, 284 Neb. 160 (appellate review of bench-trial evidence; do not reweigh evidence)
- Jacobson v. Shresta, 288 Neb. 615 (court’s discretion to permit withdrawal of jury-waiver and timeliness considerations)