McGill Restoration v. Lion Place Condo. Assn.
959 N.W.2d 251
Neb.2021Background
- McGill Restoration performed $25,000 of masonry/concrete restoration work for Lion Place Condominium Association in 2009, invoiced Lion, and was not paid. McGill sued; Lion counterclaimed alleging defective, unworkmanlike repairs.
- The case moved from county to district court. At a pretrial hearing Lion’s newly-appearing attorney agreed to a bench trial; Lion later sought a jury but the court held Lion waived the right and denied withdrawal due to prejudice/delay.
- Lion designated three persons (Michael, Markuson, Moore) as witnesses with potential expert opinions; McGill moved to limit/exclude expert testimony for lack of disclosure/foundation. The court precluded Markuson and Moore from offering expert opinions and later found Michael not qualified to offer expert opinions.
- Lion attempted to introduce a 2011 letter and related meeting statements (Exhibit 34) by McGill as admissions; the court excluded that material under Nebraska’s compromise/settlement rule (§ 27-408).
- After a bench trial the court found McGill substantially performed and acted in a workmanlike manner, entered judgment for $25,000, awarded prejudgment interest, and assessed attorney fees against Lion as a frivolous defense for proceeding without a viable expert.
Issues
| Issue | Plaintiff's Argument (McGill) | Defendant's Argument (Lion) | Held |
|---|---|---|---|
| Jury-trial waiver | McGill: Lion’s counsel orally consented in open court to a bench trial, constituting waiver. | Lion: No formal journaled waiver; new counsel never intended to waive jury. | Court: Waiver occurred by oral consent in open court under §25-1126(3); refusal to allow withdrawal was not an abuse of discretion. |
| Admissibility of settlement communications (Exhibit 34) | McGill: communications were settlement offers and excluded by §27-408. | Lion: statements were admissions/impeachment material admissible for another purpose. | Court: Excluded under §27-408; statements were part of compromise negotiations and not admissible as admissions or for impeachment. |
| Admission of Markuson & Moore testimony | McGill: they were improperly disclosed as experts and lacked foundation; exclude expert opinions. | Lion: they were lay/fact witnesses who could describe observed defects and bids. | Court: Limited them to lay factual testimony about work they performed/observed; exclusion of expert opinion and bids was not an abuse of discretion given lack of foundation and discovery issues. |
| Need for expert proof of unworkmanlike workmanship; Michael’s qualification | McGill: technical issues require expert proof; Michael unqualified. | Lion: expert unnecessary where lay observations show failures; Michael’s experience sufficed. | Court: Expert testimony was required given technical nature and intervening causes; Michael lacked sufficient foundation, and his causation opinion (based on timing) was unreliable. |
| Attorney-fee award as sanction for frivolous claims | McGill: Lion persisted without expert and should pay fees under §25-824. | Lion: defense was made in good faith. | Court: Award of fees was within discretion; after prolonged discovery Lion should have known it could not prevail without expert proof. |
| Prejudgment interest award | McGill: entitled to prejudgment interest (court relied on §45-104). | Lion: procedural pleading rule §6-1108(a) not complied with; claim unliquidated. | Court: Award affirmed under §45-104; failure to state interest start date in complaint not fatal where defendant had notice and opportunity to be heard. |
Key Cases Cited
- Maloley v. Central Neb. Pub. Power & Irr. Dist., 303 Neb. 743, 931 N.W.2d 139 (Neb. 2019) (bench-trial factual-findings standard—will not be set aside unless clearly wrong)
- Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (Neb. 2020) (abuse-of-discretion review for relevancy/exclusion rulings)
- Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (Neb. 2019) (de novo review of legal standard for admitting expert testimony)
- Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (Neb. 2015) (expert must have good grounds and sufficient factual basis for causation opinions)
- VRT, Inc. v. Dutton-Lainson Co., 247 Neb. 845, 530 N.W.2d 619 (Neb. 1995) (plaintiff must show substantial performance to recover on contract)
- Baker v. Blue Ridge Ins. Co., 215 Neb. 111, 337 N.W.2d 411 (Neb. 1983) (application of compromise/settlement exclusion)
- Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (Neb. 2014) (withdrawal of jury-trial waiver and related discretion)
- AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 (Neb. 2020) (standards for prejudgment interest recovery)