Nixon v. Harkins
| Decision Date | 28 June 1985 |
| Docket Number | No. 84-441,84-441 |
| Citation | 220 Neb. 286,369 N.W.2d 625 |
| Parties | Burton E. NIXON and Jayne B. Nixon, Appellees, v. Daniel J. HARKINS and Jody K. Harkins, Appellants. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Equity: Contracts: Specific Performance. A suit for the specific performance of a contract is equitable in nature.
2. Equity: Appeal and Error. The Nebraska Supreme Court reviews equity matters de novo on the record and reaches an independent conclusion without reference to the trial court's findings, subject to the rules that (1) when the evidence on material questions of fact is in irreconcilable conflict, the Nebraska Supreme Court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the opposite, and (2) the Nebraska Supreme Court is required, where the trial court has viewed the premises, to consider any competent, relevant facts revealed by the view and findings made by the court, provided the record contains competent evidence to support the findings.
3. Evidence: Appeal and Error. Where the review is de novo, the Nebraska Supreme Court will disregard incompetent, irrelevant, and immaterial evidence admitted over proper objection.
4. Pretrial Conferences: Appeal and Error. The trial court has a broad discretion in regard to the amendment of a pretrial order, and its ruling with respect thereto will not be disturbed absent an abuse of that discretion.
5. Witnesses: Appeal and Error. The extent, scope, and course of cross-examination rest within the discretion of the trial court, and the ruling of the trial court with respect thereto will not be disturbed in the absence of an abuse of that discretion.
6. Trial: Witnesses: Evidence: Depositions. Where a party clearly changes his deposition testimony at trial on a point vital to the case in order to meet the exigencies of the trial and no rational or sufficient explanation of the change exists, his trial testimony stands discredited as a matter of law, and he is bound by the admissions made at the deposition.
7. Evidence. Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence, or the evidence tends to establish a fact from which the existence or nonexistence of a fact in issue can be directly inferred.
8. Prejudgment Interest: Claims. Prejudgment interest is not recoverable on an unliquidated claim.
9. Prejudgment Interest: Claims. A claim is unliquidated where a reasonable controversy exists either as to the right to recover or as to the amount of such recovery.
10. Prejudgment Interest: Claims. A claim is liquidated where the evidence, if believed, makes it possible to compute the amount due with exactness without reliance upon opinion or discretion.
Richard E. Mueting of Mueting, DeLay & Stoffer, Norfolk, for appellants.
David A. Domina of Domina & Gerrard, P.C., Norfolk, for appellees.
Burton E. Nixon and Daniel J. Harkins owned certain improved real property as tenants in common, each of their wives, respectively Jayne B. and Jody K., having a marital interest therein. The Nixons brought suit to partition the property. The Harkinses counterclaimed, seeking specific performance of a contract permitting them to pay the debt arising under a promissory note to the Nixons by assignment of the Harkinses' interest in the property to the Nixons, any difference between the value of the property and the debt to be adjusted in cash. By agreement of the parties the Nixons' suit was dismissed. A bench trial was then had on the Harkinses' counterclaim pursuant to a stipulation which delineated the amount owed to the Nixons on the promissory note and certain mutual obligations of the parties with respect to the property, and further specified that the only issue for the court to resolve was the fair market value of the property, the Harkinses having conveyed their interest in the property to the Nixons. The trial court determined the fair market value of the property to be $110,000 and, after adjusting for the mutual obligations of the parties and the debt owed by the Harkinses to the Nixons, entered judgment in favor of the Nixons for $6,363.26, plus prejudgment interest. The Harkinses appeal, assigning as errors, in summary, (1) the receipt of certain evidence, (2) the limitation of cross-examination of a witness, (3) the striking of certain evidence, (4) the finding as to the fair market value of the property, and (5) the allowance of prejudgment interest. We reverse and remand for the entry of judgment in favor of the Harkinses in the sum of $15,636.74 against the Nixons.
Since the issue arises in a suit for the specific performance of a contract, the proceeding is equitable in nature. See Matthews v. Matthews, 215 Neb. 744, 341 N.W.2d 584 (1983). Consequently, we are required to review the matter de novo on the record and reach an independent conclusion without reference to the trial court's findings, subject to the rules that (1) when the evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying and accepted one version of the facts rather than the opposite, and (2) this court is required, where the trial court has viewed the premises, to consider any competent, relevant facts revealed by the view and findings made by the court, provided the record contains competent evidence to support the findings. Neb.Rev.Stat. § 25-1925 (Reissue 1979); Cline v. Franklin Pork, Inc., 219 Neb. 234, 361 N.W.2d 566 (1985); Burgess v. Omahawks Radio Control Org., 219 Neb. 100, 362 N.W.2d 27 (1985).
It is also the rule that where the review is de novo, this court will disregard incompetent, irrelevant, and immaterial evidence admitted over proper objection. In re Interest of S.S.L., 219 Neb. 911, 367 N.W.2d 710 (1985); Stecker v. Stecker, 197 Neb. 164, 247 N.W.2d 622 (1976).
Obviously, in order for us to determine what competent evidence is before us, we must first resolve the issues presented as to the correctness of the trial court's evidentiary rulings.
The Harkinses' complaints as to the receipt of evidence rest upon the admission of the testimony and report of Patrick Morrissey, a licensed real estate appraiser, and the testimony presented by the plaintiff-appellee Burton E. Nixon, individually hereinafter referred to as Nixon.
The Harkinses argue Morrissey should not have been allowed to present evidence because he was not named as a witness, nor was his report listed as an exhibit as required by the pretrial order, which read in part: "Either party may call such additional witnesses as they [sic] desire at the time of trial provided the name and address of such witness is provided to opposing counsel at least ten days prior to the April 9, 1984 Trial Term." The order contains similar language concerning exhibits.
Morrissey testified as the last witness called by the Nixons on the first day of trial, April 24, 1984, and opined that the market value of the property was $100,000. The only objection made to the receipt into evidence of a report Morrissey had prepared concerning his appraisal was that it had not been listed as aforesaid. The trial court has a broad discretion in regard to the amendment of a pretrial order, and its ruling with respect thereto will not be disturbed absent an abuse of that discretion. See, Peterson v. North American Plant Breeders, 218 Neb. 258, 354 N.W.2d 625 (1984); Mousel v. ten Bensel, 195 Neb. 456, 238 N.W.2d 632 (1976).
Harkinses' counsel was aware by April 2, 1984, that Morrissey was to be a witness. Additionally, Harkinses' counsel was given a copy of the Morrissey report on the very same day Nixons' counsel received it, April 20, 1984. No showing was made that the Harkinses' preparation for trial was hampered by that timing, and no request was made for a continuance of the trial on that ground. Under the circumstances it cannot be said the trial court erred in receiving the evidence presented by and through Morrissey, notwithstanding the language of the pretrial order.
The Harkinses also contend that their right to cross-examine Morrissey was restricted unduly. The applicable rule is that the extent, scope, and course of cross-examination rest within the discretion of the trial court, and, as such, the ruling of the trial court will not be disturbed in the absence of an abuse of that discretion. Beranek v. Petracek, 184 Neb. 516, 169 N.W.2d 275 (1969); DeVore v. Board of Equalization, 144 Neb. 351, 13 N.W.2d 451 (1944).
The trial judge attempted to recess the trial at 5:30 p.m. while Harkinses' counsel was cross-examining the witness. However, as...
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