Coffey v. Mann

Citation585 N.W.2d 518,7 Neb.App. 805
Decision Date20 October 1998
Docket NumberNo. A-97-569,A-97-569
PartiesRay and Velda COFFEY, Appellees and Cross-Appellants, v. Don MANN, d/b/a Mann Custom Homes, Inc., Appellant and Cross-Appellee.
CourtCourt of Appeals of Nebraska

Page 518

585 N.W.2d 518
7 Neb.App. 805
Ray and Velda COFFEY, Appellees and Cross-Appellants,
v.
Don MANN, d/b/a Mann Custom Homes, Inc., Appellant and Cross-Appellee.
No. A-97-569.
Court of Appeals of Nebraska.
Oct. 20, 1998.

Page 520

Syllabus by the Court

1. Motions to Dismiss. In ruling on a motion to dismiss, a trial court may sustain the motion only by resolving the controversy as a matter of law, and may do so only when the facts are such that reasonable minds can draw but one conclusion.

2. Directed Verdict. The party against whom the motion is directed is entitled to have every controverted fact resolved in his or her favor and to have the benefit of every reasonable inference which can be drawn therefrom.

3. Judgments: Verdicts. On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of every proper inference deducible from the evidence.

4. Contracts: Principal and Agent: Liability. If a contract is made with a known agent acting within the scope of his or her authority for a disclosed principal, the contract is that of the principal only and the agent cannot be held personally liable thereon.

5. Judgments: Pleadings: Proof. The pleadings and the proof must agree in order for a party to receive a judgment.

[7 Neb.App. 806] 6. Contracts: Proof. In the absence of a statute requiring a signature or an agreement by the parties that a contract shall not be binding until it is signed, signatures of the parties are not essential for establishing a binding contract if manifestation of mutual assent is otherwise shown.

7. Contracts. Even if neither party signs a contract, it may still be binding if there has been mutual assent.

8. Trial: Expert Witnesses. The weight to be given to expert testimony, and the credibility of witnesses, is a fact question to be decided by the fact finder at trial.

9. Motions for New Trial: Appeal and Error. The decision of whether to grant or deny a motion for new trial is within the discretion of the trial court, and the court's decision in that regard will be upheld on appeal absent an abuse of discretion.

Alan L. Plessman, of Plessman Law Offices, Lincoln, for appellant.

David H. Hahn, of Hahn Law Office, Lincoln, for appellees.

IRWIN, C.J., and HANNON and INBODY, JJ.

IRWIN, Chief Judge.

I. INTRODUCTION

Don Mann, doing business as Mann Custom Homes, Inc. (hereinafter referred to as "Mann"), appeals from an order of the district court granting Mann's motion for new trial, but denying his alternative motion for judgment notwithstanding the verdict in this breach of contract action, wherein the jury assessed damages of $71,361 against Mann. Ray and Velda Coffey cross-appeal from the court's order granting Mann a new trial. For the reasons stated herein, we affirm.

II. BACKGROUND

In 1987, the Coffeys purchased land between Lincoln and Hickman, Nebraska. In

Page 521

late 1988, the Coffeys entered into an agreement with Mann to have Mann build a new house on the property. Mann provided the Coffeys with a written contract setting out the terms of the parties' agreement. The evidence at trial indicated that no one ever signed the written contract, but that the parties agreed that the writing embodied the terms of their agreement. Mann constructed the house pursuant to the terms of the written contract.

[7 Neb.App. 807] After the Coffeys had been residing in the house for more than 1 year, they hired a contractor to finish the basement in the house. At that time, they discovered that several 2 by 4's composing the loadbearing wall in the basement had severely bowed and that Mann had used untreated lumber in making the sill plate on the foundation of the house.

On August 23, 1993, the Coffeys filed a petition against Mann. Mann filed an answer on September 24. The Coffeys filed an amended petition on October 5, 1995, upon which the case proceeded to trial. In the amended petition, the Coffeys alleged five causes of action. In essence, the Coffeys alleged that Mann breached the contract between the parties. The Coffeys alleged that the contract provided that Mann was to gain approval of the building plans from the city building department and that he failed to do so. The Coffeys alleged that had Mann gained such approval, proper construction of the load-bearing wall and the use of treated lumber for the sill plate of the foundation would have been ensured. Additionally, the Coffeys alleged that Mann's construction of the house constituted a breach of both a provision in the contract and an implied warranty for good, substantial, and "workmanlike" construction. A copy of the unsigned contract was attached to the petition.

At the conclusion of the trial, Mann moved to have the case dismissed or, in the alternative, to have a directed verdict entered in Mann's favor. The court overruled the motion. The jury returned a verdict in favor of the Coffeys in the amount of $71,361, which represents the cost of having the house raised and the load-bearing wall and sill plate replaced.

On March 3, 1997, Mann filed posttrial motions. Mann moved the court for a judgment notwithstanding the verdict or, in the alternative, a new trial. Mann listed 13 reasons for a new trial being granted, such as "[i]rregularity in the proceedings," "[i]rregularity in Orders of the court," "[m]isconduct of the jury and the opposing party(ies)," "[e]rror in the assessment of the amount of recovery," "[t]he verdict and decision are contrary to law," "[e]rror of law occurring at the trial," "[t]he Court's instructions to the jury were not supported by the evidence and did not constitute proper statements of the law," and "[t]he Court erred in overruling the undersigned party(ies) objections." [7 Neb.App. 808] Mann did not specify the basis for any of these "reasons" or indicate what specific actions of the court constituted "irregularity" or "error."

On April 17, 1997, the trial court granted the motion for new trial. In essence, the court determined that error had been committed in instructing and allowing the jury to determine the effect of a provision of the 1985 edition of the Uniform Building Code, which allowed the city of Lincoln to permit the use of untreated lumber for sill plates under certain circumstances. The court determined that the Uniform Building Code provision did allow such exemptions from the requirement of treated lumber being used and that the Coffeys had the burden to prove that treated lumber was required. As a result, the court felt a new trial was warranted because the jury should not have been allowed to decide that issue. In a minute entry on April 28, the court noted that in light of the ruling on the motion for new trial, the motion for judgment notwithstanding the verdict was overruled. This appeal timely followed.

III. ASSIGNMENTS OF ERROR

In the direct appeal, Mann has assigned three errors. Mann asserts that the district court erred in overruling both the motion to dismiss and the motion for directed verdict at the end of the evidence, and in overruling the motion for judgment notwithstanding the verdict.

Page 522

In the cross-appeal, the Coffeys have assigned one error. The Coffeys assert that the district court erred in sustaining Mann's motion for new trial.

IV. ANALYSIS

1. DIRECT APPEAL

In the direct appeal, Mann has challenged the district court's order overruling Mann's motion to dismiss, motion for directed verdict, and motion for judgment notwithstanding the verdict. Mann has asserted that each ruling was erroneous for the same reasons. Mann asserts that each motion should have been sustained because (1) the Coffeys failed to properly plead the corporation, Mann Custom Homes, as a defendant; (2) the Coffeys pled that the case was based on a written contract, but proved [7 Neb.App. 809] the existence only of an oral contract; (3) the Coffeys failed to properly plead the municipal ordinance upon which the alleged violations of the Uniform Building Code were based; and (4) the Coffeys failed to prove any violations of the Uniform Building Code.

We note that the record does not indicate that Mann made any of these arguments to the trial court, but, rather, made the various motions, which were overruled with argument.

In ruling on a motion to dismiss, a trial court may sustain the motion only by resolving the controversy as a matter of law, and may do so only when the facts are such that reasonable minds can draw but one conclusion. Robinson v. Bleicher, 251 Neb. 752, 559 N.W.2d 473 (1997); Bonge v. County of Madison, 5 Neb.App. 760, 567 N.W.2d 578 (1997), rev'd on other grounds 253 Neb. 903, 573 N.W.2d 448 (1998)....

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