Ipock v. Union Ins. Co.

Decision Date19 February 1993
Docket NumberNo. S-90-250,S-90-250
Citation495 N.W.2d 905,242 Neb. 448
PartiesDavid W. IPOCK, Doing Business as Millard Upholstery, Appellee, v. UNION INSURANCE COMPANY, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Convictions: Rules of Evidence. For the purposes of Neb.Evid.R. 609, Neb.Rev.Stat. § 27-609 (Reissue 1989), one has been convicted of a crime only after a finding of guilt, an imposition of a sentence, and the expiration of the time for appeal.

2. Pleas: Evidence. A plea of nolo contendere in a criminal action may not be used in evidence in a civil action against the party making the plea.

3. Motions for New Trial: Appeal and Error. A motion for new trial on the basis of newly discovered evidence is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

4. Motions for New Trial: Verdicts: Appeal and Error. A motion for new trial should be granted only where there is error prejudicial to the rights of the unsuccessful party. Unless such error appears, a party who has sustained the burden and expense of trial, and who has succeeded in securing a verdict on the facts in issue, has a right to keep the benefit of that verdict.

5. Motions for New Trial. A motion for new trial is entertained with reluctance and granted with caution, because of the manifest injustice in allowing a party to allege that which may be the consequence of its own neglect in order to defeat an adverse verdict, and, further, to prevent fraud and imposition which defeated parties may be tempted to practice to escape the consequences of an adverse verdict.

6. Motions for New Trial: Evidence: Proof. In order to make a sufficient showing for new trial upon the ground of newly discovered evidence, the proof in support thereof must show that such evidence was then available which neither the litigant nor counsel could have discovered by the exercise of reasonable diligence and that it was not merely cumulative, but competent, relevant, and material, and of such character as to reasonably justify a belief that its admission would probably bring about a different result if a new trial were granted.

Joseph S. Daly and Clark J. Vanskiver, of Sodoro, Daly & Sodoro, Omaha, for appellant.

Benjamin M. Belmont and Donald A. Roberts, of Lustgarten & Roberts, P.C., Omaha, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

HASTINGS, Chief Justice.

The defendant, Union Insurance Company, appeals a jury verdict and judgment entered against it in a lawsuit brought by plaintiff, David W. Ipock, doing business as Millard Upholstery, to recover under an insurance policy issued by the defendant to the plaintiff on the plaintiff's motor home, which was destroyed by theft and fire.

The defendant assigns as error the action of the trial court in excluding evidence of plaintiff's recent drug activity and in failing to grant defendant's motion for a new trial based on newly discovered evidence. We reverse, and remand for a new trial.

According to the plaintiff's testimony, he purchased a 1985 Southwind 27-foot self-contained motor home for $12,000 in January 1987. He said that he had received the money for the purchase from his father and that his father had held onto the title, but never titled it in his own name. The vehicle was used for one or more trips between January and October 1987, but no one had title to it during this time period. The plaintiff borrowed license plates from his brother's motor home to put on it so that he would not be stopped and ticketed while he was using the motor home. The plaintiff never legally licensed the vehicle. The vehicle was titled in the name of the plaintiff's business on October 14, 1987, and insurance coverage was purchased from the defendant 2 days later.

The plaintiff testified that the motor home disappeared from the plaintiff's place of business sometime between December 4 and 7, 1987. Approximately 2 weeks later, the plaintiff was notified that the motor home had been found near Glenwood, Iowa. It had been burned from the floor up and was totally destroyed by the fire. The plaintiff also testified that before its disappearance, the motor home had a value of around $35,000, while after the fire it was unrestorable and had no value.

Officer Kevin Parker of the Omaha Police Division testified that he was assigned to investigate the theft of the plaintiff's motor home. In investigating the plaintiff's past record, he discovered that the plaintiff had reported two vehicles stolen prior to the theft of the motor home, one of which was recovered burned in Sarpy County.

Mack Taylor, chief deputy sheriff for Mills County, Iowa, testified that the motor home was discovered on fire south of Glenwood on December 7, 1987. He investigated at the scene for evidence which would indicate how and why the motor home was at that location. He found that the license plates on the motor home were Michigan plates but that they could be traced to a U-Haul dealer in Omaha. Deputy Taylor testified that he believed the fire started in the center of the motor home, but there was no major wiring or engine in that area of the vehicle. Based on the facts that the motor home had been burned in a secluded area of Mills County, that many vehicle arsons are on unmarked county roads, and that no one was around to notify the police that the vehicle had burned, the deputy stated he thought the fire was of suspicious origin and there was a good possibility it had been set.

Mills County Sheriff Howard Clark similarly testified that he felt the fire had been started by something other than the operation of the motor home itself. He also stated that he spoke with the plaintiff on the phone approximately 2 weeks after the fire and that when he advised the plaintiff that the motor home had been found, the plaintiff asked if there was a fire.

Eileen Cherek testified that she had been employed by the plaintiff as the office manager of his business, Millard Upholstery. She stated that she was aware that work was being done on the motor home, but that she did not handle the records pertaining to that vehicle. Cherek recalled that on December 4, 1987, she spoke with the plaintiff about the motor home. She testified:

He said something, and this is not quote for quote, this is just what I can remember. That the motor home was going, and I said, "What do you mean?" And he got upset and he said, "You know I have no other alternative." And at that time I dropped the whole conversation and nothing else was said.

She also testified to a conversation she had with the plaintiff on December 8:

Basically I walked in the door and he was sitting at my desk, and he looked very upset. I said, "What's wrong?" And he said something to the effect that the motor home was gone, there were problems, the battery had went out and that he was waiting for a phone call, and again he was very upset, and I dropped the conversation.

Cherek testified that approximately 2 weeks later she answered a phone call from the sheriff of Mills County and that when the plaintiff spoke to the sheriff the only comment that really stuck out was the plaintiff's question, "[D]id it burn or what?" She also testified that she was presently involved in a lawsuit with the plaintiff.

Bill Maliszwski testified that he had done upholstery work for the plaintiff between February 1988 and May 1989. He stated that toward the end of that time period the plaintiff had mentioned to him that he had a $25,000 lawsuit going against an insurance company and that "the people that knew about it, if they kept their mouth shut, got a piece of the cake when he got the check." When asked if the plaintiff had said anything about the disappearance of the motor home, Maliszwski said that the plaintiff mentioned that he had it arranged. Maliszwski also said that the plaintiff was aware that he, Maliszwski lived in the Glenwood area and that the plaintiff asked him several times if he knew anybody down there who knew anything about the motor home being burned. He also testified that the plaintiff had asked for any bills he could place in his motor home file so he could get reimbursed for them and that the plaintiff told him that the plaintiff was taking receipts from other work and claiming it was done on that particular motor home.

The plaintiff, in rebuttal, denied the conversations claimed by Maliszwski to have occurred particularly with reference to a $25,000 lawsuit, and also testified that Maliszwski had filed a lawsuit against him, the plaintiff, in small claims court because he had stopped payment on Maliszwski's last paycheck.

In regard to Cherek, the plaintiff stated that he was concerned that she had been taking business from him and that she had stolen money from his business to start her own. He also denied making the statements about the motor home which Cherek had attributed to him.

Prior to trial, the plaintiff had filed a motion in limine to preclude inquiry by the defendant into prior felony convictions of the plaintiff which were over 20 years old, and also to preclude inquiry into a recent plea of guilty or no contest to felony drug charges, upon which, however, the plaintiff had not yet been sentenced. The trial court sustained the motion.

After a jury verdict in favor of the plaintiff in the amount of $19,403, the defendant timely filed a motion for a new trial. The motion was based on the claimed error on the part of the trial court in excluding evidence of the plaintiff's recent drug convictions and in failing to grant a new trial on the basis of newly discovered evidence.

The newly discovered evidence was in the form of an affidavit from Cindy I. Waugh, in which she stated that she was acquainted with the plaintiff and that over the course of several conversations with him she had been told by him that he had arranged for the...

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5 cases
  • DeVaux v. DeVaux
    • United States
    • Nebraska Supreme Court
    • April 15, 1994
    ...reasonably justify a belief that its admission would bring about a different result if a new trial were granted. Ipock v. Union Ins. Co., 242 Neb. 448, 495 N.W.2d 905 (1993); Federal Dep. Ins. Corp. v. Swanson, 231 Neb. 148, 435 N.W.2d 659 (1989), overruled on other grounds, Eccleston v. Ch......
  • Wolfe v. Abraham
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    • Nebraska Supreme Court
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    ...and imposition which defeated parties may be tempted to practice to escape the consequences of an adverse verdict. Ipock v. Union Ins. Co., 242 Neb. 448, 495 N.W.2d 905 (1993); Fisher Corp. v. Consolidated Freightways, 230 Neb. 832, 434 N.W.2d 17 (1989); Gruenewald v. Waara, 229 Neb. 619, 4......
  • Kiser v. Grinnell
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    • Nebraska Court of Appeals
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    ...if a new trial were granted. See Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007); Ipock v. Union Ins. Co., 242 Neb. 448, 495 N.W.2d 905 (1993). Such new evidence must not be merely cumulative, but competent, relevant, and material. See Id. Ariel asserts that t......
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    ...also, 2 Clifford S. Fishman, Jones on Evidence Civil and Criminal § 11:17 (7th ed. 1994 & Cum. Supp. 2001).34 See Ipock v. Union Ins. Co., 242 Neb. 448, 495 N.W.2d 905 (1993). Accord, Zaken v. Boerer, 964 F.2d 1319 (2d Cir. 1992) ; Wasserman v. Bartholomew, 923 P.2d 806 (Alaska 1996).35 See......
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