McGill Restoration, Inc. v. Lion Place Condo. Ass'n

• Decision Date: 14 May 2021
• Docket Number: No. S-20-416.,S-20-416.
• Citation: 309 Neb. 202,959 N.W.2d 251
• Parties: MCGILL RESTORATION, INC., a Nebraska corporation, appellee, v. LION PLACE CONDOMINIUM ASSOCIATION, an unincorporated association, appellant.
• Court: Nebraska Supreme Court

309 Neb. 202

959 N.W.2d 251

MCGILL RESTORATION, INC., a Nebraska corporation, appellee,

v.LION PLACE CONDOMINIUM ASSOCIATION, an unincorporated association, appellant.

No. S-20-416.

Supreme Court of Nebraska.

Filed May 14, 2021

Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for appellant.

Jodie Haferbier McGill, of McGill Law, P.C., L.L.O., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

I. NATURE OF CASE

In an appeal from a judgment in a bench trial in favor of a contractor against the homeowners’ association that hired it to conduct repair work, the homeowners’ association argues that the court erred in finding it had waived, by one of the methods described in Neb. Rev. Stat. § 25-1126 (Reissue 2016), its right to a jury trial. The homeowners’ association disagrees with the lower court's conclusion that it had to present expert testimony to support its defense and counterclaims asserting that the repair work was done in an unworkmanlike manner. It also argues the court erred in excluding lay testimony of other contractors, in finding its expert witness lacked foundation for his opinions, and in excluding testimony relating to what the court found to be compromise negotiations. Finally, the homeowners’ association challenges the court's award of prejudgment interest and attorney fees. We affirm.

II. BACKGROUND

McGill Restoration, Inc. (McGill), sued Lion Place Condominium Association (Lion) for breach of a series of oral contracts whereby Lion was to pay $25,000 to McGill for materials and services performed on a building managed by Lion in Omaha, Nebraska. The work entailed, for a specified portion of the facade, repairs to prior repairs by another contractor. In its complaint against Lion, McGill asserted breach of contract and quantum meruit. McGill sought $25,000, together with costs, prejudgment interest, postjudgment interest, and such other and further relief as the court deemed just and proper.

Lion denied the allegations and pled the affirmative defenses of failure to state a claim, estoppel, laches, failure to perform, failure of consideration, lack of consideration, breach of express warranty, and breach of implied warranty and offset. Lion counterclaimed for breach of contract, breach of implied and express warranties, and negligence.

The case had been filed in county court but was transferred on August 23, 2012, to district court due to the amount of Lion's counterclaim. In response to McGill's requests for admissions, Lion admitted that it had requested McGill to perform repair work on the Lion building, McGill conducted repair work on the Lion building in 2009, McGill sent Lion an invoice for the work, and Lion has not paid McGill the amount reflected in the invoice.

1. WAIVER OF JURY TRIAL

During a pretrial hearing on February 13, 2015, on several motions, including a motion by Lion's first counsel, Michael Kennedy, to withdraw, Lion's new counsel stated to the bench that he was appearing at the hearing on Lion's behalf. New counsel stated he would be "becoming the new counsel of record assuming that you allow ... Kennedy to withdraw." He had, however, already filed on Lion's behalf a motion to disqualify McGill's counsel. Lion's new counsel was the main advocate for Lion during the lengthy hearing, but Kennedy also participated.

The court set the matter for trial to the bench on March 16, 2015. The court specifically asked the parties’ attorneys, "I assume it's to the bench?" Both McGill's counsel and Lion's new counsel stated that was correct. Kennedy did not state anything to the contrary.

The court granted Kennedy's motion to withdraw. McGill had objected to the motion to withdraw on the grounds that it could delay trial for Lion to switch counsel at that short juncture, but Lion's new counsel stated, "I do believe that there is a good chance that I could be ready to go at trial on March 16th, which I understand that it's set for."

Subsequently, on February 23, 2015, Lion's new counsel requested a jury trial and denied that Lion had previously waived its right to a jury trial. A hearing on the matter was held on March 2, approximately 2 weeks before the scheduled bench trial.

At the hearing, Lion's new counsel acknowledged that he had answered in the affirmative at the prior hearing regarding having a bench trial, but explained that he had been under the false impression a jury trial had already been affirmatively waived. New counsel conceded that his discussions with Kennedy had given him that impression. New counsel explained that in a conversation with his client at some later date, he learned his impression was wrong.

New counsel submitted an affidavit by Michael Henery, who was Lion's president at that time, averring that he "was never advised that the matter was scheduled for a bench trial" and that "[a]t no time was [Lion], or members of the Executive Board, including myself, advised of the requirement to elect between a jury trial or bench trial." Lion also submitted an affidavit by Kennedy, averring he "did not waive [Lion's] right to a jury trial in any way whatsoever," elaborating that he "did not file any written waivers of [Lion's] right to a jury trial on behalf of [Lion], and never affirmatively waived [Lion's] right to a jury trial in any court proceeding."

Kennedy acknowledged a conversation he had with the court bailiff asking "to take this case off of the jury trial setting scheduled for March 2-3, 2015," but Kennedy said he did not during that conversation "indicate that [Lion] did not want a jury trial, or desired a bench trial."

McGill's counsel explained that there had been a telephonic hearing on November 11, 2014, in which two dates were offered—one for a jury trial and one for a bench trial. Kennedy did not know at that time whether Lion wished to waive the right to a jury trial and said he would find out and get back to the court within a week to let it know. Kennedy did not do so, and the bailiff had to attempt several times to contact Kennedy. Eventually, Kennedy contacted the bailiff, directing the bailiff to set trial for the bench trial date.

The court explained from the bench and in its order denying the motion for a jury trial that it had given Lion the choice between a jury trial to commence on March 2, 2015, or a bench trial to commence on March 16. Lion selected the bench trial. The court explained that if it were to continue trial in order to hold a jury trial, the matter would be delayed for another 5 or 6 months, which would be prejudicial to McGill.

2. EXCLUSION OF EXPERT TESTIMONY

McGill moved in limine to exclude witnesses based on Lion's conduct during discovery and the alleged lack of foundation for proposed expert testimony. Lion had listed in a "Designation of Experts," Mark Markuson III, Craig Moore, and Michael as the expert witnesses it was formally designating and intending to call at trial. McGill's amended motion in limine asserted that while Lion had eventually identified three witnesses as its experts, Lion had failed to adequately disclose the foundation and subject matter of their expected testimony.

In Lion's supplemental answers to McGill's interrogatories filed November 25, 2014, Lion identified Michael as a person who has knowledge of any discoverable matter and that the subject matter on which he has knowledge was of "work performed, contract, and deficiencies in performing the work." Likewise, Markuson was identified as having knowledge "of work performed and the issues with [McGill's] deficiencies in performing the work" and Moore was identified as having knowledge "of work performed and the issues with [McGill's] deficiencies in performing the work."

In response to interrogatories asking for the subject matter on which each expert was expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of grounds for each opinion the expert is expected to give, Lion stated with regard to both Markuson and Moore: "while [he] is expected at trial to give his expert opinions; he has not been retained as an expert in this matter. He is both a witness of fact and an expert." He "will give his qualified and expert opinions concerning the building" and the "improper work done" thereon. Markuson and Moore were each "contacted by [Lion] to inspect and give a bid concerning [McGill's] deficient work on the subject building." Each is a contractor and "has looked over the work performed by [McGill] and has deemed it sub-standard and the work performed was not in line with the standards of construction in the Omaha metropolitan area."

Lion described Michael as having "40 years of experience in construction." Michael was expected to testify as to McGill's "improper work done on the condominium building." Lion set forth that Michael "has looked over the work performed by [McGill] and has deemed it sub-standard and the work performed was not in line with the standards of construction in the Omaha metropolitan area."

At the hearing on the amended motion in limine, McGill referred to exhibit 5, in which Moore averred that he was not an expert for Lion or anyone else in the case, had no intention of voluntarily acting as an expert in the case, and until recently, had no knowledge that he had been identified as an expert in the case. Further, Moore averred that he had not formed any opinions or conclusions contrary to McGill or its work conducted on the Lion building and that the bid to perform repair work was not intended to offer opinions or conclusions regarding McGill or its work on the building. Finally, Moore averred that he lacked knowledge as to what work McGill had conducted on the Lion building or what work was conducted by other contractors on the building and was without sufficient information to formulate any opinions as to the work completed by McGill as an expert in the case.

McGill also referred to exhibit 4, in which Markuson similarly...