after four years of litigation in district court and then you change from texas to nebraska over a one thousand pages of motions attachments over a one thousand pages of trial transcript here we are today and this case is now and has always been in my opinion a very simple one a simple matter this case arises out of a loan the choice peterson made during her lifetime to john henry on february th two thousand and eight the loan was due to be repaid by john henry on february th of two thousand and ten and it was not repaid then and it has never been repaid to this day in four years and ten months after the loan was due to be repaid and wasn't it is the position of the appellant in this matter william better issue that st of all this case never should have been submitted to the jury and nd of all that by the time this case had been tried we were actually allotted four days for trial it became a seven day jury trial by the time the case was submitted to the jury  the because of the events and the conduct that occurred there are numerated in my brief and will be discussed here today that the possibility of a fair and just result to my client was rendered impossible trial and i think are important to the discussion and argument here today and that is the distinction that is recognized in the brassica between cause of action in theory every calorie the general case that i cited  my brief and a stand for the chance for the proposition that there is a distinction between cause of action in theory of recovery and in the a general case the court the nebraska supreme court said the cause of action consists of the operative facts that give one a right to judicial really think danced another a cause of action can have a number of theories every cover a but there is just one cause of action and in this case there was one cause of action and that was an unpaid loan it was an unpaid loan that joyce peterson made on february th of two thousand and eight that's what this case is about that's what this case has always been about there were originally i think ten theories every coverage that then was whittled down to seven on a motion to dismiss which was then peterson suffered that gave rise to this lawsuit so given that backdrop i wanted and discussed the court trial court's ruling appellants rule fifty motion at the conclusion the evidence because i think that that's important i think there are certain findings factual findings in legal findings that the district court made that i absolutely agree with and i think are supported by the facts and the evidence that came in at trial and brassica lot and then there's a ruling on the moon rule fifty motion to dismiss so the rule the court's findings were as follows any claim accruing before december st of two thousand and ten is prima fascia a barred by the statute of limitations finding that the trial court made was that any injury that joyce peterson suffered in this case was caused by the nine repayment of the loan which peterson discovered and knew of in february of two thousand and ten also based on the evidence i completely agree i think that the trial court made that finding based on the evidence and it was proper and appropriate under the circumstances there was testimony from joyce peterson's son eric peterson trial that joyce peterson knew as of february of two thousand and ten when the loan was due and had been repaid that she probably wasn't going to get her money back and that is in my opinion the fatal flaw to the court to the  case the fact that those who didn't wasn't there also and so that your client was telling her that it would be repaid while simultaneously telling henry not to pay no no to clarify judge grounder what the evidence was and this was this gets to what the court in it up instructing the jury on is it was it was a statement that joyce talked to john and i'll see if i can get you your money back that was the evidence there was never any there was never any evidence of any assurances that mr bitters with the legibly making to joyce peterson and don't worry about it you're going to get paid we're in and we're particularly and i think this is also a very important distinction between the what the evidence showed is that at no time did mr bettors ever say don't worry about it joyce all pay or don't worry about it joyce i'm going to get i'm going to force john to to repay your money now we can from from a substantive  approach we can look at whether or not gratuitous comments like joyce i'll talk to i'll talk to john whether or not that is a legally just a shovel or actionable statement in the st place is a valid question  grounder i i understand your position because that because the the language specific language is important to the court trial court's rulings i felt it was important to show what the evidence actually indicated so the other issue that the trial court i believe properly determined was that equitable stoppel did not toll the statute of limitations for the claims that survived the rule fifty motion still on those issues we are in agreement in the court in the trial court also made a factual determination which i think it's appropriate and i agree with that the only factually disputed substantive allegation after december st of two thousand  is whether or not better site repayment of the loan from henry after it became due in two thousand and ten that appears on an appellant appendix eight hundred and sixty five again this gets back to what we were talking about judge grinder and that is that the court made its determination i'll talk to john and so the court concluded that because there is that mr better said i i did i did i did talk to john you know i told him you got to pay or mr henry got up on the stand and he said that never happened so there is at least a dispute in the testimony now we can get into the whole issue of whether or not the testimony that mr henry gave was the product of a secret mary carter green light but that's a whole nother issue and i'm sort of putting the cart befor the horse this is the issue the the fundamental problem with the court's ruling on the rule fifty motion is that it preserved two theories every calorie one for  misrepresentation some people call it fraud nebraska doesn't specifically recognize a theory of recovery under fraud it's misrepresentation is the way that it's set forth in nebraska jury instructions similar to a nd edition theories every category misrepresentation breach of fiduciary duty require as it as an element to proof proximate cause in order to in other words in order for a mess represent theory of recovery it has to be at the breach of the fiduciary duty has to be the proximate cause of the damages that were proven at trial the problem is that what the court effectively did the court made a determination that anything the court was doing is that which the court was saying that the statements that were made occurred in twenty million one hundred and twelve thousand and thirteen there within the statute of limitations i'm going to allow that i'm going to allow the jury to consider them but the problem is that there was no damage attach there is no measurable damages attached to either of those theories of recovery that the only cause of action in this case was the one hundred and fifty thousand dollars loan that was due in two thousand and ten so the court was effectively taking two theories that recovery arising out of conduct in twenty million seventy two thousand and thirteen trying to retroactively apply that to damages that had already been a crude so that is the fundamental flaw to the trial courts i understand what the trial court was trying to do is trying to preserve it in so far as it could do it some sort of theory to submit to the jury but without without a damages without any damages attached to those theories they're meaningless they're not actionable you have to have a damages claim that attaches to those and that's an element of of proof so that that is  one of the fundamental problems i have the other issue is just from a from a practical standpoint the instructions that the court gave were so confusing because with they effectively did was they told the jury the testimony that you heard over the last several days about all of these things that occurred back in two thousand and eight the basis of this loan whether or not it was a fundamental investment or whether or not it was a good investment whether or not the jewish peterson peterson should have been advised as to whether or not to make this loan disregard all that testimony because it's not relevant anymore because i made it it's been that anything occurring after december st of two thousand and ten is not to be considered it's time barred so the jury was left with a very confusing and almost impossible situation all they heard was this three hundred and fifty six thousand dollars in damages which was the amount of the one hundred and fifty thousand dollar accruing over a period of time up to that time of trial at eleven percent so the jury just heard this number three hundred and fifty six thousand then the jury and then the judge trial court effectively told the jurors don't may please the court i'm going to show that the district court erred by one cutting in half the jury's awards to dismiss preventing ms peterson from obtaining pain and suffering damages three dismissing robert boland at summary judgment and finally i'm going to show that this court should dismiss all of the arguments made by mr bidders for violating local rule twenty eight a nd for failing to preserve them in a rule fifty a previous motion but as a preliminary matter i st want to address mr feist his question i'm sorry his answer to judge grounders question should grinder asked him pointedly did your client tell ms peterson it would the loan be repaid but told him not to repay her mr feist her answer no the correct answer to that question is yes and it's supported by numerous citations to the record mr john l henry the defendant testified at trial that he was going to pay ms peterson back one year after the loan was made and when it was due but bidders told him no don't pay he will extend the date on the  one year and instead of paying it back he should use the money to pay the insurance premium from which bidders are in the commission and the court will find supporting citations for that statement in the record in peterson separate appendix pages thirty three  we get to writing it but maybe you want to move on to something that is not so fact intensive i appreciate the got to share i absolutely do regarding having the jury's awards the supreme court held the jury's findings should not be overturned if there are any inference not a duplicative recovery you are it's not to the elements of damages or separate between it's going to start you know it was the last part of your question what are the elements of the damages that are separate between the two claims how are they well for because because they're identical number and that raises some questions as an old trial judge i'll tell you know and you know if the elements of damages are not plainly and distinctly different then it kind of has the look of something that's duplicative well your honor this court judge kilian a panel held in a landmark infrastructure holding company l l c versus r e d investors that jury's awards for negligent misrepresentation and breach of contract were not and she said well they're not duplicative because they have different elements of damages if you look out the you know we don't let plain pain and suffering go here so it sounds to me like in the instructions when i looked at the jury instructions to that it it looked to me like the judge was was was a little it has an end to adopt your tortious breach of a contract theory you know in common law this would be a lot less disturbing a lot less difficult to sort out because common law had a fraud claim and it had a deceit claim in the claims to be different may have different elements of damages no one wants nebraska's decided conflated all in a misrepresentation and is in a contract contacts now the question that i've got is what does nebraska law say about the elements of damages because i mean that's that's where the rubber is going to hit the road here you're out of there just to clarify there were there was a claim for breach of contract against john henry the jury found liability the claims against bidders were not for breach of contract that claim against him him for his contract with peterson was dismissed the claims for which the jury found liability were were different they were fraudulent misrepresentation him telling of the loan would be pre paid and he's telling me not to pay or and also what your common l tortious interference of the contract the relationship i get that but what were the damages to how the damages be different were how would the elements of damages be different and how did your income of the exactly the same number looking at different elements the other claim that the jury found thousand dollars policy to the henry's with a premium of six hundred and thirty four thousand dollars there is testimony that he get twenty five percent commission that would be one hundred and fifty eight thousand dollars in commissions under the law there's a park a site in our brief which says that dis remedy for breach of fiduciary duty so these are different claims with different elements and they have different remedies so for project as representation we have a legal remedy the same goes for the breach of contract now this has nothing to do and breach of contract there's no election remedies required in the reason why is because the claims are consistent this is not a case where we're saying we want the jury to undo the contract with hillary and say that was entered into based on fraud yet we also want the jury to enforce the contract and they can repay no this is a case where we're asking him to pay and force the contract we're also asking to hold bidders liable for his fragile misrepresentations of the contract would be paid which is consistent and for his fraudulent misrepresentations that he was representing the best interests of his peterson as a fiduciary with her best interests at heart so those are consistent remedies erikson we're not asking to undo the contract yet and force the contract and there have been decisions recently by the members this court explaining the nature of election remedies where judge was in a case where they held that you can't have a contract and both ask to terminate and ask to performant that would create a conflict but we're not asking for that we're asking for consistent remedies so there's no conflict moreover this whole idea of inconsistent remedies is an affirmative defense called the election remedies and here bitters failed to weigh that it's not in his answer which can be found on peterson's appendix pages nine dollars to ten dollars no mention of election remedies for three years he didn't mention election remedies until last day of trial and he waived it under the w in which judge granted was on the panel more versus american family mutual life insurance in that case the court held the plaintiff's testimony that he was worrying and losing sleep and he was embarrassed by being called an arsonist was but don't you need an expert witness to have somebody testify that my death was hastened by my my emotional pain and suffering no wonder you don't why not that's that's within the scope of the lay person expertise and knowledge yes or yes really really what evidence would you have to support a claim that i'm under stress so i'm going to die you know we started numerous always do or judges not all be dead already only lawyers ought to be when you're sitting  that late testimony is sufficient now your honor may be thinking of cases of intentional infliction emotional stress which requires proof of severe emotional injury but that's not required here and well  prematurely you are that's a separate issue let's put that aside the cause of death i'm simply here to hear the difficult would not allow pain and suffering damages at all let's put aside the idea of death but i'm just talking about garden variety of emotional  damages that's what we're talking about and that was it was gus in the briefs the issue of causing her death is not even in the briefs i just tossed it in that was something i came across in the record we would like to get garden variety motion damages judge erickson and  smith versus inc a building corporation the circuit held that the plaintiffs testimony that he was really embarrassed was enough to get those garden variety pain and suffering damages in one thousand nine hundred and one claim in the case of more versus american family mutual insurance it was enough to information systems or services with a website where he was listed under the about us page and that said peterson appendix seventy one to seventy nine they consider themselves colleagues they shared clients they remain money off those referred clients they put on the showing of an agreement under wilson versus king the in reeky tronics case that piece of a reply brief we've explained factors that show co ownership for an implied partnership and they include things that are shown here such as contribution of time and expertise control sharing profit sharing being considered a member of the business rather than outside contractor profit knowing things about the business and having free access information that the people don't have all these factors were met even today they operate under the same heading at the website h t t p yes forward slash forward slash estates in captives dot com now this is not in the record but you may take judicial notice of this website if the residents were not enough mr peterson did ask for adverse inferences of an implied partnership after they could fail to comply with an order to produce information about their business dealings with each other that was denied mr peterson also asked for a nd deposition after  fifty six thousand and one the claim against mr henry i would also note it's very telling that it before the verdict came in plaintiff's attorney the point if apple e attempted to destress mr henry so they were perfectly satisfied with dismissing one of those claims that ended up coming  in in their favor so i think that that's a disingenuous argument my time has expired to get my position on it for appellant is we're asking for the court to remain with directions to dismiss finding that the rule fifty ruling was incorrect or that there was an injustice at trial in the case be remanded for a new trial or well thank you counsel cases been argued and submitted