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McGILL RESTORATION v. LION PLACE CONDO. ASSN.

Cite as 309 Neb. 202

McGill Restoration, Inc., a Nebraska corporation, 

appellee, v. Lion Place Condominium 

Association, an unincorporated 

association, appellant.

___ N.W.2d ___

Filed May 14, 2021. No. S-20-416.

1. Judgments: Appeal and Error. In a bench trial of a law action, a trial 

court’s factual findings have the effect of a jury verdict and will not be 

set aside on appeal unless clearly wrong.

2. ____: ____. After a bench trial of a law action, an appellate court does 

not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of 

the successful party.

3. Trial: Evidence: Appeal and Error. Judicial discretion is allowed to 

determine the relevancy of evidence, and such determination will not be 

disturbed on appeal unless it constitutes an abuse of discretion.

4. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews 

de novo whether the trial court applied the correct legal standards for 

admitting an expert’s testimony, but a trial court’s ruling in receiving 

or excluding an expert’s testimony which is otherwise relevant will be 

reversed only when there has been an abuse of discretion.

5. ____: ____: ____. An appellate court reviews de novo whether the trial 

court applied the correct legal standards for admitting an expert’s testimony, and an appellate court reviews for abuse of discretion how the 

trial court applied the appropriate standards in deciding whether to admit 

or exclude an expert’s testimony.

6. Pretrial Procedure: Appeal and Error. Generally, the control of 

discovery is a matter for judicial discretion, and decisions regarding discovery will be upheld on appeal in the absence of an abuse 

of discretion.

7. Judgments: Words and Phrases. A judicial abuse of discretion exists 

when a judge, within the effective limits of authorized judicial power, 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/18/2021 08:08 AM CDT
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elects to act or refrain from acting, but the selected option results in a 

decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a 

judicial system.

8. Damages: Appeal and Error. The amount of damages to be awarded is 

a determination solely for the fact finder, and the fact finder’s decision 

will not be disturbed on appeal if it is supported by the evidence and 

bears a reasonable relationship to the elements of the damages proved.

9. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse 

of discretion.

10. ____: ____. When an attorney fee is authorized, the amount of the fee 

is addressed to the discretion of the trial court, whose ruling will not be 

disturbed on appeal in the absence of an abuse of discretion.

11. Contracts: Breach of Contract. As a contract consists of a binding 

promise or set of promises, a breach of contract is a failure, without 

legal excuse, to perform any promise that forms the whole or part of 

a contract.

12. Contracts: Actions: Substantial Performance: Proof. To successfully bring an action on a contract, a plaintiff must first establish that 

the plaintiff substantially performed the plaintiff’s obligations under 

the contract.

13. Contracts. As a general rule, every contract for work or services 

includes an implied duty to perform the work or services skillfully, carefully, diligently, and in a workmanlike manner.

14. Contracts: Words and Phrases. In a “workmanlike manner” connotes 

work in the same manner that a person skilled in doing such work would 

do it, and in a manner generally considered skillful by those capable of 

judging such work in the community of the performance.

15. Constitutional Law: Jury Trials. The right to a jury trial is guaranteed 

by Neb. Const. art. I, § 6.

16. Jury Trials: Waiver: Statutes. A waiver of a jury trial in district 

court is statutorily governed by Neb. Rev. Stat. § 25-1126 (Reissue 

2016), which provides an exclusive list of the manners in which a 

waiver occurs.

17. Attorney and Client. The right of an attorney to enter an appearance 

for a party can be called in question only by the party.

18. Attorney and Client: Presumptions. When an attorney appears in an 

action as the representative of a party to the action, the presumption of 

the law is that the attorney appears by the authority of the party whom 

the attorney assumes to represent.
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.

Cite as 309 Neb. 202

19. Attorney and Client: Negligence. A client is bound by the acts, 

omissions, neglect, and fraud of the client’s attorney if such conduct 

is within the attorney’s scope of express, implied, apparent, or ostensible authority.

20. Attorney and Client. From the nature of the attorney-client relationship 

itself, a lawyer derives authority to manage the conduct of litigation on 

behalf of a client, including the authority to make certain procedural or 

tactical decisions.

21. Attorney and Client: Jury Trials: Waiver. A lawyer’s authority to 

manage the conduct of litigation on behalf of a client encompasses the 

choice, in a civil action as opposed to a criminal action, to waive a 

jury trial.

22. Rules of Evidence: Compromise and Settlement: Appeal and Error.

A court’s determination of preliminary questions of fact conditioning 

the applicability of the exclusionary rule set forth in Neb. Rev. Stat. 

§ 27-408 (Reissue 2016) are reviewed for clear error.

23. Claims: Evidence: Compromise and Settlement: Public Policy. The 

inadmissibility of evidence of negotiations and compromise or settlement of a claim reflects a public policy consideration favoring compromise of disputes.

24. Claims: Evidence: Compromise and Settlement. Evidence of negotiations and compromise or settlement of a claim is irrelevant because 

the transaction is motivated by a desire for peace rather than from the 

strength or weakness of a claim.

25. Rules of Evidence: Compromise and Settlement: Impeachment: 

Public Policy. To use conduct or statements in compromise negotiations for impeachment would tend to swallow the exclusionary rule and 

impair the public policy of promoting settlements; therefore, admissibility as an inconsistent statement does not fall under the “another 

purpose” exception to the exclusionary rule of Neb. Rev. Stat. § 27-408 

(Reissue 2016).

26. Claims: Evidence: Compromise and Settlement. An admission against 

interest concerning an element of the disputed claim is not an exception 

to the general inadmissibility of conduct or statements made in settlement negotiations.

27. Appeal and Error. In order to be considered by an appellate court, the 

party asserting the alleged error must both specifically assign and specifically argue it in the party’s initial brief.

28. Breach of Contract: Evidence. Evidence of a deficiency is immaterial without the identity of the person charged with responsibility for 

the work.
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29. Expert Witnesses: Testimony. Findings of fact as to technical matters 

beyond the scope of ordinary experience are usually not warranted in the 

absence of expert testimony supporting such findings.

30. Breach of Contract: Contractors and Subcontractors. Whether a 

skilled contractor breached a contract to render services in the practice 

of the trade by failing to conduct the work in a workmanlike manner 

depends on whether the contractor exercised the skill and knowledge 

normally possessed by members of the trade in good standing in similar communities.

31. Breach of Contract: Expert Witnesses: Proof. Ordinarily, the standard 

of care for the rendering of services in the practice of a trade is outside 

the common knowledge and experience of ordinary persons and must, 

therefore, be established by expert testimony.

32. ____: ____: ____. Expert testimony is not necessarily required to establish a breach by the failure to achieve a particular result that can be 

shown by lay witness observations, but that is when the contract explicitly guarantees a certain result and not just to perform in a workmanlike 

fashion according to industry standards.

33. Trial: Expert Witnesses. It is within the trial court’s discretion to determine whether there is sufficient foundation for an expert witness to give 

his or her opinion about an issue in question.

34. Expert Witnesses. An expert must have good grounds for the expert’s 

belief in every step of the analysis.

35. Words and Phrases. The term “good grounds” means an inference 

or assertion derived by scientific method and supported by appropriate validation.

36. Evidence. It is a logical fallacy to assume that temporal correlation 

equals causation.

37. ____. A causation opinion based solely on a temporal relationship is 

unreliable, because it is not derived from the scientific method and is 

not based upon sufficient facts or data.

38. Attorney Fees: Costs. In determining whether to assess attorney fees 

and costs and the amount to be assessed against offending attorneys 

and parties, the court considers a number of factors, including, but 

not limited to, the 10 factors listed in Neb. Rev. Stat. § 25-824.01 

(Reissue 2016).

39. Attorney Fees: Claims. Neb. Rev Stat. § 25-824(5) (Reissue 2016) 

contemplates that attorney fees may be assessed when a party persists in 

asserting a claim after it knows or reasonably should know it would not 

prevail on the claim.

40. Prejudgment Interest: Appeal and Error. Awards of prejudgment 

interest are reviewed de novo.
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.

Cite as 309 Neb. 202

41. Rules of the Supreme Court: Pleadings: Prejudgment Interest: 

Notice. Compliance with Neb. Ct. R. Pldg. § 6-1108(a) is not determinative where entitlement to interest is based on statute and the adverse 

party had notice and an opportunity to be heard prior to judgment.

Appeal from the District Court for Douglas County: Peter 

C. Bataillon, Judge. Affirmed.

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 Con

dominium Association (Lion) for breach of a series of oral 
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.

Cite as 309 Neb. 202

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 
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Cite as 309 Neb. 202

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 
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McGILL RESTORATION v. LION PLACE CONDO. ASSN.

Cite as 309 Neb. 202

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 
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Cite as 309 Neb. 202

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 
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Cite as 309 Neb. 202

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 averred that he never inspected the Lion building for 

deficiencies, was not aware of what work McGill or other 

contractors had performed on it, was not hired by Lion as an 

expert witness in this matter, and had not formed any opinions or conclusions contrary to McGill or its work conducted 

for Lion.

When asked about the affidavits of Markuson and Moore, 

Lion explained:

I believe the — the better way to classify these individ

uals is they are . . . contractors, they did come out to give 

replacement work, repair work bids for the Lion . . . property, and therefore they will testify as factual witnesses as 

to basically what they saw. Whether they saw cracking, 

whether they saw flaking, whether they saw all that.

. . . .

. . . So we don’t need to designate them as an expert 

witness.

Lion explained that a person with specialized knowledge who 

is merely testifying as to the work visible to the naked eye is 

giving lay testimony.

The court explained that “[t]hey can testify what I did and 

what I saw, but if they start giving opinions as to why this 

is the situation and what the problem with this is, that’s an 

expert.” The court accordingly granted McGill’s motion in 

limine in part as to expert testimony by witnesses Markuson 

and Moore.

The court denied McGill’s motion in limine to exclude 

Michael’s testimony, stating that it would determine during 

trial whether Michael had the qualifications to be an expert. 

Following trial, the court found that Michael’s testimony 
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Cite as 309 Neb. 202

revealed that he had no expertise in the work performed by 

McGill and did not adequately review the work. Michael did 

not know the standard by which to judge the work, the scope 

of McGill’s work, what work exactly was done, or what area of 

the building McGill performed work on. Therefore, Michael’s 

testimony “did not rise to the degree necessary for him to have 

an accepted expert opinion as to the work performed.”

3. Evidence Presented at Trial

(a) Richard McGill

At trial, McGill adduced the testimony of Richard McGill 

(Richard), who was a co-owner of McGill. Richard testified that McGill had an agreement with Lion to fix improper 

repairs that had been done previously by a different contractor. Richard explained that he observed that the previous 

contractor had not properly prepared the area before doing 

“patchwork.”

Richard testified that in 2009, McGill fully completed its 

obligations under the contract with Lion. McGill also completed some additional repairs outside the scope of the contract 

without charging for them. Richard supervised McGill’s work 

and reviewed the work after completion. He testified that 

“[e]verything looked good when we walked away from the 

project.” Richard testified that the bill sent to Lion in October 

2009 represented less than the value of the work performed and 

that McGill never received payment from Lion or any communications about the bill until the present suit was filed.

Richard testified that they discovered early on the issues 

with the prior repair were much worse than anticipated and 

“deep repairs” were required. Although Richard observed other 

areas of the building’s facade that required work, Richard said 

that Lion did not wish to contract McGill to repair those areas, 

so McGill’s job was limited to a 600-square-foot area. McGill 

attempted to fix as many issues as it could without billing Lion 

for them because McGill did not “want to go and leave the new 

repairs exposed to wide open areas of deterioration.”
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Following Lion’s presentation of evidence in support of 

its counterclaim, McGill recalled Richard as a rebuttal witness concerning the scope and quality of the work performed. 

Richard described in detail his expertise in the area of masonry 

and concrete building restoration, including various professional certifications and licenses. Richard also described in 

more detail the restoration McGill was hired to do at the Lion 

building. McGill was hired to “sound test” all the stone on the 

building and to repair 400 feet of stone on the south side. The 

repair extended around the building to the east side only, “[o]n 

the one little corner.” McGill did not use concrete in its repairs, 

but, rather, “Thoropatch.” McGill used lasers to determine the 

ambient temperature and never applied the product below its 

specified ambient temperature.

Richard opined within a reasonable degree of certainty, 

based on his training, education, and experience, that McGill 

met the standard for the skill and knowledge of those in the 

masonry restoration trade when it conducted work on the Lion 

building in 2009. Richard explained that McGill did everything that it was hired to do. Richard again explained that he 

discovered that there “were far more extensive issues than 

[McGill] thought” and advised Lion of that fact. McGill thereafter “modified the scope to go and accomplish what we could 

accomplish with the money that they had.”

Richard testified that he advised Lion of other things that 

needed to be done in the future to protect the south elevation 

and complete the work on the east elevation, which Richard 

testified McGill never touched. Richard testified that he would 

expect deterioration of the Lion building since 2009 if Lion 

had failed to hire out further repairs. Richard explained that 

the “majority of the work that was completed by the previous contractor was never addressed” through Lion’s contract 

with McGill and “[McGill knew that that was defective.” 

Further, McGill had “pointed out many other areas that needed 

to be addressed in order to protect the work that was being 
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repaired.” Because Lion did not wish to hire anyone to make 

those repairs,

water would have continued to get back behind the newly 

patched materials and the new areas would begin to start 

falling apart and the already loose materials would continue to deteriorate. And as more and more water got 

in there and more and more freeze-thaw cycles happened 

in the winter, the amount of water turning to ice in there 

would continue to grow, and at some point there would be 

large pieces starting to fall off of the building.

Richard testified that the presence of cracks in the stone of 

the exterior of the Lion building did not necessarily indicate 

the applicator had failed to meet industry standards. Richard 

explained that a lot of different things can cause cracks, including shrinkage and movement, some of which may occur no 

“matter what was put in there, who put that in there.” Richard 

summarized, “a crack may be just a crack or a crack may be 

evidence of a problem.”

Richard testified that he had recently looked at the Lion 

building. It appeared to him that the south side looked much 

better than the east side. Further, on the south side, the areas 

that McGill had concentrated on looked much better than the 

areas that McGill did not concentrate on. On cross-examination, 

Richard was presented with photographs of the Lion building’s 

facade taken during and after McGill’s repair work and entered 

into evidence by Lion, which showed obvious deterioration. 

Richard did not recognize any of the areas represented in the 

photographs as places McGill was hired to perform repair 

work on.

(b) Trevor Henery

Lion called Trevor Henery (Trevor), who was the president of Lion in 2009 and the operator of a pub in the Lion 

building. He was present in certain meetings with McGill to 

discuss the contract with McGill and the nature of the work 

it was to perform. Trevor described it as “tuck pointing work 
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[involving] the south side for sure.” He did not recall “the 

particular scope [of the work to be performed] over the whole 

building.”

After McGill completed the work, Trevor observed cracking, peeling, and flaking on parts of the Lion building. As 

of the date of trial, Trevor described the building as being 

in “bad shape,” explaining that “[w]e had to have quite a bit 

of material taken off of the building because of the danger it 

presented to people on the sidewalk, and it cost quite a bit of 

money to do that.”

(c) Brandon Henery

Brandon Henery (Brandon), who was the secretary and 

treasurer of Lion and the manager of the restaurant on the 

main floor of the Lion building, also testified on Lion’s behalf. 

Brandon testified he was not a member of the board at the time 

negotiations took place with McGill or when McGill performed 

work on the building, but had since familiarized himself with 

the situation.

Brandon testified that in November or December 2009, 

shortly after McGill completed its work on the Lion building, pieces of stone fell off on its east side. Brandon had seen 

McGill working on both the south and east sides of the building and had noticed building scaffolding around the southeast 

corner. The pieces falling off the building were initially small, 

but in 2014, a piece the size of a manhole cover fell off the east 

side of the building.

Subsequent to that incident, Brandon obtained bids to repair 

the facade. Brandon testified that Markuson performed some 

repair work, “but they decided that they did not want to 

continue with it,” and that thereafter, Western Waterproofing 

Company (Western) finished the repair work.

(d) Mark Markuson III

Lion called Markuson, who was the owner of Markuson 

Construction. The court sustained McGill’s renewed objection 
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to any expert testimony concerning the quality of McGill’s 

work. McGill’s counsel argued that if Markuson were allowed 

to walk the court through his repair bid, it would become 

evident the same exact work McGill did had to be replaced 

by another contractor, and that therefore, implicitly, the work 

was done improperly. The court, however, found any proposed 

expert testimony lacking in foundation unless it was clear 

that Markuson proposed a bid to repair the work that McGill 

improperly conducted. The court explained, “Just because 

McGill did work on the business, this guy did a bid on the 

business, but that doesn’t mean that he’s doing a bid on the 

work that McGill did.” The court also sustained McGill’s 

objection to Markuson’s testimony as a fact witness concerning “factual observations as to what he saw,” explaining that 

what Markuson “saw and why he saw it all comes about 

because he’s an expert looking into this and making a bid on 

that matter.”

Lion made an offer of proof as to Markuson’s excluded 

testimony as follows: “[E]ven if . . . Markuson’s bid does not 

get into the record[,] Markuson can testify as a lay witness, a 

factual witness, as to his observations of the building, what he 

saw needed repaired, and his conclusions as to what was necessary to rectify that.”

On cross-examination, Markuson testified that McGill had 

an excellent reputation in the industry.

(e) Craig Moore

Lion next called Moore, who was a project manager at 

Western. Moore had worked at Western for the past 11⁄2 years. 

Moore testified that he gave a bid for a project at the Lion 

building in May 2014.

When asked about the nature of the work he provided a 

bid for, McGill renewed the objections that were the subject 

of its motion in limine. Noting exhibit 5, the court ruled that 

Moore’s testimony was to be limited to that of a fact witness 

as to the work that he performed. Moore was not to testify as 
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to any deficiencies in McGill’s work. Also, Moore was not 

allowed to testify concerning the cost of the bid and whether it 

was fair and reasonable, because that requires an expert’s opinion. Lion did not make an offer of proof concerning Moore’s 

excluded testimony.

Moore was permitted to testify that Western performed 

work on the east side of the Lion building. Brandon instructed 

Western to peel off all the loose stone material off the east 

facade above the first floor. Workers took approximately 1 

week to finish the contracted-for work.

On cross-examination, Moore testified that McGill is one of 

the best known local restoration companies and that its “customers are usually satisfied with [McGill’s] work.”

(f ) Michael Henery

Michael testified for Lion, stating that he was its president 

for the past year and associated with it for the previous 20 

years as the Lion building’s co-owner. Michael described that 

McGill was hired to fix faulty work performed by the previous 

contractor, which involved frozen concrete that was peeling 

off the building. McGill was to remove the concrete that was 

installed improperly, to “get to the bottom of it and replace it 

with a material that would adhere to the building so the building could be restored.”

Michael testified that he had an opportunity to observe from 

ground level some of the work while McGill performed it. He 

also inspected the property, from ground level, subsequent to 

McGill’s performing the work. The Lion building is five stories 

high. Michael testified to his observations of what he described 

as McGill’s short workdays, scaffolding in disarray, and pouring what he believed to be concrete when it was freezing at 

night. Michael testified that McGill’s work was not performed 

in a workmanlike manner, because it poured concrete when it 

would freeze before having fully set, which resulted in pieces 

later falling off the building. Michael testified he observed on 

mornings after freezes that the concrete poured the day before 

had cracked.
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In laying foundation for his expert testimony, Michael 

described his experience in concrete work and as a homebuilder, stating he was familiar with all phases of construction. 

Michael described that he started a business in grading and 

landscaping in 1959, and “through that first eight or nine years, 

I achieved the knowledge to do concrete work.” Thereafter, 

from 1968 to 1981, he was in the housebuilding business. After 

that, he was vice president of an excavating company, as well 

as engaged in the restaurant and real estate businesses. He has 

owned numerous commercial properties.

During voir dire, Michael testified that he had not conducted 

any testing in connection with the case, has never publicly 

declared himself an expert in restoration work, and did not hold 

any specific license or certificates relating to restoration work. 

On cross-examination, Michael testified he was not a member of any organizations or institutes involving the masonry 

restoration industry and did not know what the prominent 

organizations are for the masonry restoration field. He was not 

an approved applicator for any masonry restoration materials. 

His experience in masonry work primarily involved a 3-month 

period in 1959.

Michael testified that he did not know the standards of people in the concrete and masonry restoration industry in 2009. 

And he did not know what products McGill used in its work 

for Lion. Michael was not involved in the contract negotiations 

with McGill and did not know the scope of the work McGill 

agreed to undertake. Still, Michael testified that whatever 

McGill had done or however McGill had done it, the work 

was not in his estimation done in the proper way—because “it 

didn’t stick on the building [and] fell off.”

4. Exclusion of Exhibit 34 

and Related Testimony

Before trial, the court had granted McGill’s motion in 

limine pursuant to Neb. Rev. Stat. § 27-408 (Reissue 2016) 

to exclude any communications in compromise negotiations. 
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The court sustained McGill’s objection at trial to the introduction of exhibit 34 on the grounds that it was a compromise 

negotiation. Exhibit 34 was a letter from McGill to Lion. At 

trial, the court also sustained McGill’s objections to testimony 

concerning what was said during the meeting referred to in 

the letter.

In the letter, Richard, on behalf of McGill, states that “[p]er 

our meeting, I submit the following information in an attempt 

to resolve the issues between McGill . . . and Lion . . . .” 

Thereafter, Richard recognized in the letter:

[T]here are some warranty repair work that we would 

have completed, had a warranty gone into effect. In 

attempt to compromise and resolve the lawsuit between 

us, McGill . . . will complete the “warranty work” at no 

additional cost to [Lion] after we are paid the full amount 

that is currently due and owing.

Richard further explained in the letter that “[a]s the first step 

to begin work on the building,” he would have certain experts 

view the failed areas and obtain recommendations from them 

for the best repair methods. He also outlined procedures to 

limit interference with the business traffic of the building and 

to get the repairs done quickly. He closed with, “Please review 

this with the board of directors and hopefully we can resolve 

this issue.”

The meeting referred to in the letter took place in front of 

the Lion building in the fall of 2011, after Lion’s complaint 

had been filed, and was organized by McGill’s counsel. Both 

McGill’s counsel and Lion’s counsel, Kennedy, were present. 

Also present were Richard and Trevor. The meeting lasted 

about 20 minutes.

5. Verdict

At the close of McGill’s case, Lion moved for a directed 

verdict against McGill on its breach of contract claim. Lion 

did not renew its motion at the close of all the evidence. 

Lion argued that the discussion between the parties of “all 
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the different numbers” and “all the different square footages” 

demonstrated there was never a true meeting of the minds 

to form a contract in the first instance. The court denied the 

motion. Following 3 days of trial, the judge, as the trier of 

fact, found in favor of McGill in its breach of contract action 

and entered judgment in its favor. In a subsequent order, the 

court explicitly found against Lion in its counterclaims and 

dismissed them.

The court specifically found that repairs by another contractor had been done on the building before entering into any 

agreement with McGill. Lion had been dissatisfied with those 

repairs and subsequently entered into an oral agreement with 

McGill to conduct repairs for $25,000. McGill completed the 

work by October 2009, and despite additional work being 

done outside of the original agreement, McGill sent an invoice 

to Lion for the original bid amount of $25,000. Lion refused 

to pay the invoice. There were no complaints about the work 

until about 3 years later.

The court found that McGill completed the work properly 

and in a workmanlike manner, that the work completed was 

necessary, and that McGill complied with the terms and conditions of the contract it had with Lion. The court noted that 

Lion provided no expert testimony to support its defenses that 

the work performed by McGill was improper, unnecessary, or 

performed in an unworkmanlike manner.

6. Prejudgment Interest

The judgment in favor of McGill was in the amount of 

$25,000, plus prejudgment interest at a rate of 12 percent per 

year commencing November 1, 2009, for a total prejudgment 

interest amount of $38,875.

7. Attorney Fees

Following a separate hearing, the court additionally awarded 

McGill attorney fees. McGill’s counsel pointed out at the hearing on the motion that the case began in 2011 with a simple 

collection case that McGill filed in county court. Lion filed 
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a counterclaim that moved the case to district court and that 

required expert testimony, especially with regard to Lion’s 

counterclaims. McGill’s attorney argued that in the many years 

before a trial finally took place, Lion had plenty of opportunity 

to realize it did not have an expert to support its cause of action 

and that it would therefore fail.

In its order granting the fees, the court observed that there 

was a considerable discovery process and that the case was 

submitted to the court for various motions, including Lion’s 

attorney’s motion to withdraw, which the court granted, and 

Lion’s motion to disqualify McGill’s attorney, which the court 

denied. The court found that Lion was liable for attorney fees, 

because its defense and counterclaim were frivolous due to 

the fact that it proceeded to trial without a legitimate expert. 

Without an expert, the court explained, “there was no way 

[Lion] could be successful in this matter, which [Lion] knew or 

should have known.” The court found that all actions taken by 

Lion on and after February 2, 2015, were frivolous.

McGill introduced an affidavit outlining $14,000 in attorney 

fees in relation to the defense of Lion’s counterclaim, beginning in September 2011. Approximately $5,000 in fees and 

expenses were itemized as incurred after February 2015. The 

court awarded McGill $5,920 in attorney fees, representing 34 

hours of time expended by McGill’s attorney in the litigation of 

this case and the resulting judgment.

III. ASSIGNMENTS OF ERROR

Lion assigns that the district court erred in (1) excluding 

testimony from witnesses Lion had designated as fact and 

expert witnesses; (2) concluding Lion needed expert witness 

testimony to respond to or rebut McGill’s claims; (3) denying the admission of exhibit 34 and preventing trial counsel 

from making further inquiry relative to exhibit 34; (4) entering 

judgment in the amount of $25,000; (5) awarding prejudgment interest at the rate of 12 percent per year commencing 

November 1, 2009; (6) finding that the defense of Lion was 
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frivolous and awarding attorney fees; and (7) denying Lion a 

jury trial.

IV. STANDARD OF REVIEW

[1] In a bench trial of a law action, a trial court’s factual 

findings have the effect of a jury verdict and will not be set 

aside on appeal unless clearly wrong. 1

[2] After a bench trial of a law action, an appellate court 

does not reweigh evidence, but considers the evidence in the 

light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party. 2

[3] Judicial discretion is allowed to determine the relevancy 

of evidence, and such determination will not be disturbed on 

appeal unless it constitutes an abuse of discretion. 3

[4,5] We review de novo whether the trial court applied the 

correct legal standards for admitting an expert’s testimony, but 

a trial court’s ruling in receiving or excluding an expert’s testimony which is otherwise relevant will be reversed only when 

there has been an abuse of discretion. 4 Stated another way, we 

review de novo whether the trial court applied the correct legal 

standards for admitting an expert’s testimony, and we review 

for abuse of discretion how the trial court applied the appropriate standards in deciding whether to admit or exclude an 

expert’s testimony. 5

[6] Generally, the control of discovery is a matter for judicial 

discretion, and decisions regarding discovery will be upheld on 

appeal in the absence of an abuse of discretion. 6

1 Maloley v. Central Neb. Pub. Power & Irr. Dist., 303 Neb. 743, 931 

N.W.2d 139 (2019).

2 Id.

3 Jaeger v. Jaeger, 307 Neb. 910, 951 N.W.2d 367 (2020).

4 Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019).

5 Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015), 

disapproved on other grounds, Weyh v. Gottsch, 303 Neb. 280, 929 

N.W.2d 40 (2019).

6 Yeransian v. Willkie Farr, 305 Neb. 693, 942 N.W.2d 226 (2020).
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[7] A judicial abuse of discretion exists when a judge, within 

the effective limits of authorized judicial power, elects to act or 

refrain from acting, but the selected option results in a decision 

which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition 

through a judicial system. 7

[8] The amount of damages to be awarded is a determination 

solely for the fact finder, and the fact finder’s decision will not 

be disturbed on appeal if it is supported by the evidence and 

bears a reasonable relationship to the elements of the damages proved. 8

[9,10] On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent an abuse of discretion. 9

When an attorney fee is authorized, the amount of the fee is 

addressed to the discretion of the trial court, whose ruling 

will not be disturbed on appeal in the absence of an abuse of 

discretion. 10

V. ANALYSIS

[11-14] Lion appeals the judgment against it for breach of 

contract. As a contract consists of a binding promise or set 

of promises, a breach of contract is a failure, without legal 

excuse, to perform any promise that forms the whole or part 

of a contract. 11 To successfully bring an action on a contract, 

a plaintiff must first establish that the plaintiff substantially 

performed the plaintiff’s obligations under the contract. 12 It 

is well recognized that, as a general rule, every contract for 

work or services includes an implied duty to perform the work 

7 Dick v. Koski Prof. Group, 307 Neb. 599, 950 N.W.2d 321 (2020).

8 TNT Cattle Co. v. Fife, 304 Neb. 890, 937 N.W.2d 811 (2020).

9 Seldin v. Estate of Silverman, 305 Neb. 185, 939 N.W.2d 768 (2020).

10 Id.

11 23 Richard A. Lord, A Treatise on the Law of Contracts by Samuel 

Williston § 63:1 (4th ed. 2018).

12 VRT, Inc. v. Dutton-Lainson Co., 247 Neb. 845, 530 N.W.2d 619 (1995).
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or services skillfully, carefully, diligently, and in a workmanlike manner. 13 In a “workmanlike manner” connotes work in 

the same manner that a person skilled in doing such work 

would do it, and in a manner generally considered skillful by 

those capable of judging such work in the community of the 

performance. 14

Lion challenges the district court’s rulings excluding certain 

testimony of Markuson and Moore concerning what they did, 

what they observed, and their bids or invoices, which Lion 

argues constituted relevant lay testimony to show McGill’s 

work was not performed in a workmanlike manner. Lion generally asserts that the district court was wrong in reasoning that 

Lion needed expert testimony to establish that McGill’s work 

was done in an unworkmanlike manner. However, Lion also 

argues the court erred in “strik[ing]” and “not giv[ing] any 

consideration” to the expert testimony of Michael that McGill’s 

work was not done in a workmanlike manner. 15 Lion argues 

that the court erred in excluding evidence relating to the 2011 

meeting as compromise negotiations. Lion also asserts that its 

right to a jury trial was violated and that the district court erred 

in awarding McGill prejudgment interest and attorney fees. We 

address each of these arguments in turn.

1. Jury Trial

[15,16] The right to a jury trial is guaranteed by Neb. Const. 

art. I, § 6. The court found that Lion had waived the right 

13 Pioneer Enterprises v. Edens, 216 Neb. 672, 345 N.W.2d 16 (1984).

14 See, Burnett & Bean v. Miller, 205 Ala. 606, 88 So. 871 (1921); Brown 

v. Eakins, 220 Or. 122, 348 P.2d 1116 (1960); Sundance Develop., Inc. v. 

Standard Lbr. & Hard. Co., 520 P.2d 1056 (Colo. App. 1974); McKinley 

v. Brandt Constr., Inc., 168 Ohio App. 3d 214, 859 N.E.2d 572 (2006); 

Flying J Inc. v. Meda, Inc., 373 S.W.3d 680 (Tex. App. 2012). See, also, 

Schwarz v. Platte Valley Exterminating, 258 Neb. 841, 606 N.W.2d 85 

(2000); Helterbrand v. Five Star Mobile Home Sales, 48 S.W.3d 649 (Mo. 

App. 2001).

15 Brief for appellant at 20.
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to a jury trial and that McGill would be prejudiced if the court 

were to allow Lion to withdraw that waiver. A waiver of a 

jury trial in district court is statutorily governed by § 25-1126, 

which provides an exclusive list of the manners in which a 

waiver occurs. 16 Relevant here is § 25-1126(3), “by oral consent in open court entered on the journal.”

During the hearing on February 13, 2015, Lion’s new counsel affirmed that the trial would be to the bench, stating, 

“That’s correct, Your Honor.” Lion’s withdrawing counsel, 

Kennedy, who was also present and participating in the conversation, appeared to be in agreement.

[17,18] Lion does not argue on appeal that its new attorney 

who entered an appearance at the hearing did not actually represent it, and the right of an attorney to enter an appearance 

for a party can be called in question only by the party. 17 In any 

event, when an attorney appears in an action as the representative of a party to the action, the presumption of the law is that 

the attorney appears by the authority of the party whom the 

attorney assumes to represent. 18

[19-21] A client is bound by the acts, omissions, neglect, 

and fraud of the client’s attorney if such conduct is within the 

attorney’s scope of express, implied, apparent, or ostensible 

authority. 19 From the nature of the attorney-client relationship itself, a lawyer derives authority to manage the conduct of litigation on behalf of a client, including the authority to make certain procedural or tactical decisions. 20 That 

authority is not absolute; it does not, for example, encompass 

settlement of a claim without a client’s specific consent or 

silence in open court. 21 But it encompasses the choice, in 

16 See Jacobson v. Shresta, 288 Neb. 615, 849 N.W.2d 515 (2014).

17 Baldwin v. Foss, 14 Neb. 455, 16 N.W. 480 (1883).

18 See Cave v. Reiser, 268 Neb. 539, 684 N.W.2d 580 (2004).

19 See VRT, Inc. v. Dutton-Lainson Co., supra note 12.

20 Luethke v. Suhr, 264 Neb. 505, 650 N.W.2d 220 (2002).

21 See id.
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a civil action as opposed to a criminal action, 22 to waive a 

jury trial. 23

In arguing that it did not waive its right to a jury trial, Lion 

offers only the conclusory statement that “there is no record of 

any ‘oral consent in open court entered on the journal’ attesting 

to any waiver of a jury trial by [Lion].” 24 We find, however, 

that the explicit statement of Lion’s new counsel in open court 

that it was correct that they would be having a bench trial 

qualified as consent to a bench trial. And, in an order filed on 

March 3, 2015, the court found that Lion’s counsel had waived 

the right to a jury trial. This qualified as having been entered 

on the journal. Lion waived its right to a jury trial pursuant 

to § 25-1126(3).

The court has discretion to permit an application to withdraw the waiver if it is timely made and has not been acted 

on to the prejudice of another party. 25 The district court here 

found that to allow Lion to withdraw its waiver would delay 

the matter and prejudice McGill. An abuse of discretion occurs 

when a trial court’s decision or reasoning is clearly untenable, 

unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. 26 We find 

22 See Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 

(1983) (decisions in criminal case of whether to plead guilty, whether to 

waive jury trial, whether to testify, and whether to appeal are fundamental 

and personal to defendant; almost all other decisions are considered 

strategic or tactical decisions and fall within lawyer’s control).

23 See id. See, also, Middleton v. Stavely, 124 Colo. 88, 235 P.2d 596 (1951); 

McLyman v. Miller, 52 R.I. 374, 161 A. 111 (1932); Smith v. Barnes, 9 

Misc. 368, 29 N.Y.S. 692 (N.Y. Sup. 1894); Beal v. Doe, 987 S.W.2d 41 

(Tenn. App. 1998). But see, Blanton v. Womancare, Inc., 38 Cal. 3d 396, 

696 P.2d 645, 212 Cal. Rptr. 151 (1985); Graves v. P. J. Taggares Co., 94 

Wash. 2d 298, 616 P.2d 1223 (1980).

24 Brief for appellant at 35.

25 Jacobson v. Shresta, supra note 16. See, also, McKinney v. County of Cass, 

180 Neb. 685, 144 N.W.2d 416 (1966).

26 Jaeger v. Jaeger, supra note 3.
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that the district court did not abuse its discretion in refusing to 

allow Lion to withdraw its waiver.

2. Exclusion of Exhibit 34

Turning to the trial, we address Lion’s argument that the 

court erred in excluding exhibit 34 and in excluding testimony 

relating to Richard’s statements made in the meeting referred 

to in exhibit 34. The court found that the exhibit and the 

testimony at issue were inadmissible under § 27-408, which 

governs compromise and offers to compromise. Lion asserts 

Richard’s statements at the meeting and in the letter were 

admissible “for another purpose,” pursuant to § 27-408, as 

either (1) admissions against interest that the work was done 

in an unworkmanlike manner or (2) to impeach Richard’s testimony that the work had been done in a workmanlike manner 

and that $25,000 was reasonable for the work performed.

[22] If a statement violates the Nebraska Evidence Rules 

governing compromise and offers to compromise, a trial court 

does not have discretion to admit the statement. 27 However, a 

court’s determination of preliminary questions of fact conditioning the applicability of the exclusionary rule set forth in 

§ 27-408 are reviewed for clear error. 28

Section 27-408 provides:

Evidence of (1) furnishing or offering or promising 

to furnish, or (2) accepting or offering or promising 

to accept, a valuable consideration in compromising or 

attempting to compromise a claim which was disputed as 

to either validity or amount, is not admissible to prove 

27 See Pribil v. Koinzan, 11 Neb. App. 199, 647 N.W.2d 110 (2002), reversed 

on other grounds 266 Neb. 222, 665 N.W.2d 567 (2003).

28 See State v. Pullens, 281 Neb. 828, 800 N.W.2d 202 (2011). See, also, 

Pierce v. F.R. Tripler & Co., 955 F.2d 820 (2d Cir. 1992); Affiliated Mfrs., 

Inc. v. Aluminum Co. of America, 56 F.3d 526 (3d Cir. 1995); Trans 

Union Credit Info. v. Assoc. Credit Services, 805 F.2d 188 (6th Cir. 1986); 

E.E.O.C. v. Gear Petroleum, Inc., 948 F.2d 1542 (10th Cir. 1991); First 

Interstate Bank of Billings v. U.S., 61 F.3d 876 (Fed. Cir. 1995).
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liability for or invalidity of the claim or its amount. 

Evidence of conduct or statements made in compromise 

negotiations is likewise not admissible. This rule does 

not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of 

compromise negotiations. This rule also does not require 

exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to 

obstruct a criminal investigation or prosecution.

(Emphasis supplied.)

[23,24] The inadmissibility of evidence of negotiations and 

compromise or settlement of a claim reflects a public policy 

consideration favoring compromise of disputes. 29 Furthermore, 

evidence of negotiations and compromise or settlement of a 

claim is irrelevant because the transaction is motivated by a 

desire for peace rather than from the strength or weakness of a 

claim. 30 The exclusion set forth in § 27-408 extends to settlements, negotiations, and offers to compromise made by either 

of the parties with or to third persons concerning a cause of 

action relative to the same transaction or same subject matter involved in the litigation at hand. 31 The exclusion set forth 

in § 27-408 does not distinguish between offers to settle and 

admissions of fact made during settlement negotiations. 32

At trial, Richard explained there was a meeting in front of 

the Lion building in the fall of 2011. The meeting was organized by his trial counsel. It was undisputed that at the time of 

the meeting, the complaint against Lion by McGill had been 

filed. In the letter marked as exhibit 34, Richard, on behalf of 

McGill, states that “[p]er our meeting, I submit the following 

29 See Baker v. Blue Ridge Ins. Co., 215 Neb. 111, 337 N.W.2d 411 (1983).

30 See id.

31 See id.

32 See Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652 (4th Cir. 1988).
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information in an attempt to resolve the issues between McGill 

. . . and Lion . . . .” (Emphasis supplied.) Richard then 

acknowledged to Lion its obligations to complete “warranty 

repair work . . . had a warranty gone into effect” and offered 

to begin such work within 2 days of receiving the payment it 

considered due for the work it had completed.

Kennedy testified that the purpose of the meeting was “so 

the parties actually have the ability to go through what was 

wrong with the building.” Trevor testified that the purpose 

of the fall 2011 meeting with Richard that was arranged by 

McGill’s counsel was to “see if we could get some deficiencies fixed.” Trevor denied that the purpose of the meeting 

was for “any sort of settlement.” According to Kennedy, there 

were no specific offers of settlement made during the meeting 

and Richard had made admissions that warranty work should 

have been done on the property. Nevertheless, in his affidavit, 

Kennedy also stated that Richard, during the meeting, “stated 

he would not perform any work without being paid in full, but 

was open to compromising on the matter after an inspection of 

the [Lion building].”

Whether a particular writing, conduct, or statement is made 

in or a product of compromise negotiations is largely a question of fact. 33 We find that the district court did not clearly err 

in determining that Richard’s statements concerning the condition of the building, its possible causes, and an offer to conduct 

warranty repairs were statements made during, or a product of, 

compromise negotiations. Further, we find that the court did 

not err in determining that the letter contained in exhibit 34 

was an attempt to compromise a disputed claim.

The letter and statements Lion sought to adduce were not 

evidence otherwise discoverable and excluded merely because 

they were presented in the course of compromise negotiations. 

Section 27-408 mirrors the original version of Fed. R. Evid. 

33 See, Goon v. Gee Kung Tong, Inc., 544 A.2d 277 (D.C. App. 1988); J.C. 

Compton Co. v. Brewster, 185 Or. App. 382, 59 P.3d 1288 (2002).
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408, which became effective in 1975. In enacting federal rule 

408, the statement that the rule does not require exclusion of 

any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations was added 

to ensure that evidence, such as documents, were not immunized from admissibility by being strategically presented in the 

course of compromise negotiations. 34 This provision of federal 

rule 408 also ensures that a fact presented during compromise 

negotiations is not immunized from admissibility if that fact 

sought to be presented at trial was obtained from sources 

independent of the compromise negotiations. 35 The statements 

at issue were not obtained from sources independent of the 

compromise negotiations and were not documents that merely 

happened to be presented during compromise negotiations. 

Instead, they were part and parcel of the attempt to compromise a disputed claim.

We find no merit to Lion’s argument that the evidence 

did not fall under the exclusionary rule of § 27-408 because 

it was admissible for “another purpose.” Lion describes this 

other purpose as either an admission against interest regarding 

whether McGill performed the work in a workmanlike manner 

or impeachment of Richard’s testimony that the work was done 

in a workmanlike manner and that the contract price was reasonable for the work performed.

[25] It has long been recognized that to use conduct or statements in compromise negotiations for impeachment would 

tend to swallow the exclusionary rule and impair the public 

policy of promoting settlements; therefore, admissibility as an 

inconsistent statement does not fall under the “another purpose” exception to the exclusionary rule of § 27-408. 36 In fact, 

amendments to federal rule 408(a) in 2006 explicitly clarify 

34 See 3 Michael H. Graham, Handbook of Federal Evidence § 408:1 (9th ed. 

2020).

35 See id.

36 See 2 McCormick on Evidence § 266 (8th ed. 2020).
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that conduct or statements made in settlement negotiations are 

not admissible for “another purpose” to impeach a prior inconsistent statement. As one authority has explained, “The use of 

inconsistent statements made in compromise negotiations for 

general impeachment of the testimony of a party is fraught 

with danger of misuse of the statements to prove liability, 

threatens frank interchange of information during negotiations, 

and generally should not be permitted.” 37

[26] Similarly, an admission against interest concerning an 

element of the disputed claim is not an exception to the general 

inadmissibility of conduct or statements made in settlement 

negotiations. 38 Allowing such an exception would swallow the 

exclusionary rule premised on the idea that settlement negotiations would be inhibited if the parties knew that statements 

made in the course of compromise negotiations might later be 

used against them as admissions of liability. 39

The statements at issue directly concerned elements of 

McGill’s cause of action and of its defense to Lion’s counterclaims. They were made in the course of compromise negotiations for the purpose of reaching an agreement that would 

avoid litigation. Regardless of whether they would otherwise 

qualify as admissions against interest or impeachment, questions we need not decide here, they fell under the exclusionary 

rule of § 27-408. The court did not err in excluding exhibit 

34. Nor did the court err in excluding witness testimony as 

to statements Richard made during the 2011 meeting between 

the representatives of Lion and McGill and their respective attorneys.

37 Id., § 266 at 356.

38 See Idaho State Bar v. Frazier, 136 Idaho 22, 28 P.3d 363 (2001). See, 

also, Matter of Estate of Ruediger, 83 Wis. 2d 109, 264 N.W.2d 604 

(1978).

39 See U. S. v. Contra Costa County Water Dist., 678 F.2d 90 (9th Cir. 1982). 

See, also, Central Soya Co., Inc. v. Epstein Fisheries, Inc., 676 F.2d 939 

(7th Cir. 1982); Hulter v. C.I.R., 83 T.C. 663 (1984).
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3. Exclusion of Markuson’s and 

Moore’s Testimony

Lion next argues that the district court erred in limiting 

Markuson’s and Moore’s allegedly lay testimony. Lion does 

not argue that Markuson and Moore were expert witnesses 

and that the court erred in disallowing their expert testimony; 

Lion affirmatively asserts that they “were not experts.” 40 Lion 

asserts that the testimony should have been allowed in these 

witnesses’ capacity as fact witnesses concerning what they did, 

what they observed, and their bids or invoices. Lion asserts 

such testimony was helpful to a clear understanding of “why 

was a bid to redo work recently performed appropriate, or why 

it was necessary to perform concrete repairs and what the reasonable charges for such repairs would be.” 41

[27] We note that while Lion also argues that the district 

court erred in excluding exhibits 36 through 38, which contained Markuson’s and Moore’s bids, Lion does not assign the 

exclusion of those exhibits as error. In order to be considered 

by an appellate court, the party asserting the alleged error must 

both specifically assign and specifically argue it in the party’s 

initial brief. 42

At trial, the court sustained McGill’s objections to 

Markuson’s and Moore’s testimony as to any alleged deficiencies in McGill’s work and the cost of their bids. Their 

testimony would be limited to describing the work they performed. Moore thereafter testified that Western peeled off all 

loose stone material from the east facade above the first floor. 

Markuson effectively did not testify.

While Lion made an offer of proof concerning Moore’s 

bid and a companion document of his general observations 

and recommendations for repair, which were contained in 

exhibits 36 and 37, Lion did not make an offer of proof as to 

40 Brief for appellant at 17.

41 Id. at 19.

42 Dycus v. Dycus, 307 Neb. 426, 949 N.W.2d 357 (2020).
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Moore’s testimony. Concerning Markuson’s testimony, Lion 

made an offer of proof that, as a lay witness, Markuson would 

testify “as to his observations of the building, what he saw 

needed repaired, and his conclusions as to what was necessary 

to rectify that.”

Under Neb. Rev. Stat. § 27-103 (Reissue 2016), error may 

not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and, 

where the ruling is one excluding evidence, the substance of 

the evidence was made known to the judge by offer or was 

apparent from the context within which questions were asked. 

It appears from the context that the excluded testimony by 

Moore was similar to that outlined in the offer of proof for 

Markuson—the amount of the bids and the deficiencies that 

created a need for their repairs.

Judicial discretion is allowed to determine the relevancy 

of evidence, and such determination will not be disturbed on 

appeal unless it constitutes an abuse of discretion. 43 We conclude that the district court did not abuse its discretion.

In limiting the testimony, the court relied less on the discovery sanction and more on the fact that it found Markuson and 

Moore lacked foundation to opine on whether McGill’s work 

was deficient or that the bids were a reflection of the costs to 

repair McGill’s deficient work. The court explained that there 

was no evidence Markuson and Moore had proposed bids to 

repair the repair work done by McGill. To the contrary, both 

witnesses had averred that they were unaware of what work 

had been done by prior contractors and had not formed any 

opinions or conclusions concerning McGill’s prior work for 

Lion, because they lacked sufficient information to do so.

Lion did not contest this point but believed that the court 

could piece together an inference of deficient performance 

through a combination of Markuson’s and Moore’s testimonies 

and the other evidence in the case. The combined evidence, 

43 Jaeger v. Jaeger, supra note 3.
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according to Lion, would show that “the same exact work that 

McGill did had to be replaced by another contractor and, therefore, implicitly the work was done improperly.”

[28] But ultimately, there was little other evidence presented 

at trial that adequately demonstrated the work Markuson and 

Moore were asked to fix was the same work done by McGill 

previously. Richard testified that the work Lion contracted 

them for was limited to a 600-square-foot area mainly on the 

east side that extended in one small corner on the south side. 

While numerous photographs were admitted into evidence 

showing deterioration of the building’s facade, Richard did not 

recognize any of the areas photographed as areas McGill was 

hired to perform work on. Brandon testified that stone later fell 

off the east side of the building, but he was not privy to what 

precise area McGill had been hired to work on. Trevor testified 

as to his observations of cracking, peeling, and flaking on the 

Lion building’s facade, which was a danger to the public, and 

he said that it “cost quite a bit of money” to have that material removed, but he did not recall the particular scope of the 

work McGill was hired to perform. Evidence of a deficiency 

is immaterial without the identity of the person charged with 

responsibility for the work. 44

In addition to the lack of evidence clearly connecting the 

600-foot area McGill was contracted to repair with the evidence of general failures of the facade, it was, as we discuss 

next, outside the scope of ordinary experience to determine 

whether the failures of the facade demonstrated McGill’s poor 

workmanship or were attributable to some other cause.

4. Need for Expert Testimony and Whether 

Michael’s Testimony Qualified

Lion generally assigns and argues that the court erred in 

entering judgment against it and, in doing so, determining it 

could not prove McGill acted in an unworkmanlike manner 

44 See Mitchell v. Eyre, 190 Neb. 182, 206 N.W.2d 839 (1973).
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without expert testimony. This error, argues Lion, was compounded by the court’s order “strik[ing]” Michael’s expert 

testimony. 45

[29,30] Findings of fact as to technical matters beyond the 

scope of ordinary experience are usually not warranted in 

the absence of expert testimony supporting such findings. 46

Whether a skilled contractor breached a contract to render 

services in the practice of the trade by failing to conduct 

the work in a workmanlike manner depends on whether the 

contractor exercised the skill and knowledge normally possessed by members of the trade in good standing in similar 

communities. 47

[31] Ordinarily, the standard of care for the rendering of 

services in the practice of a trade is outside the common 

knowledge and experience of ordinary persons and must, 

therefore, be established by expert testimony. 48 Nevertheless, 

Lion argues that the facts of this case are akin to a situation 

where, for example, someone contracts for a leaking roof 

and the roof continues to leak immediately after the repairs. 

Making arguments reminiscent of the negligence doctrine of 

res ipsa loquitur, 49 Lion asserts that the failure to perform in 

a workmanlike manner in such a scenario is not beyond the 

comprehension of lay people and that no expert testimony is 

required to prove breach of contract.

45 Brief for appellant at 20.

46 Roskop Dairy v. GEA Farm Tech., supra note 5.

47 See, Schwarz v. Platte Valley Exterminating, supra note 14; Topil v. Hub 

Hall Co., 230 Neb. 151, 430 N.W.2d 306 (1988); Schuster v. Baumfalk, 

229 Neb. 785, 429 N.W.2d 339 (1988); Doupnik v. Usher Pest Control 

Co., 217 Neb. 1, 346 N.W.2d 699 (1984); Zimmer v. Brandon, 134 Neb. 

311, 278 N.W. 502 (1938). See, also, Bargmann v. Soll Oil Co., 253 Neb. 

1018, 574 N.W.2d 478 (1998).

48 See Bargmann v. Soll Oil Co., supra note 47.

49 See McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386 

(2011).
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[32] It is true that expert testimony is not necessarily required 

to establish a breach by the failure to achieve a promised particular result that can be shown by lay witness observations, 50

but that is when the contract explicitly guarantees a certain 

result and not just to perform in a workmanlike fashion according to industry standards. 51 While Lion makes reference to 

Richard’s testimony concerning warranties and the excluded 

testimony and letter regarding the same, there is no indication 

in the evidence admitted or excluded that the warranty, if any, 

would be to ensure that the areas on the building worked on 

would not fail or deteriorate due to any cause.

It was undisputed that a prior contractor had performed deficient work on the building’s facade, and there was evidence 

that McGill was only contracted to repair some of that deficient 

work. There was evidence that McGill informed Lion that more 

repair work needed to be conducted on the surrounding areas 

and that Lion’s failure to do so would have jeopardized the 

integrity of McGill’s repairs. McGill did not have exclusive 

control and management over the building. No other work was 

done on the facade until 2014.

Under these facts, it cannot be surmised merely from the 

deterioration of the facade—even if there had been testimony 

directly proving the failures were of the areas McGill had contracted to repair—that McGill failed to substantially comply 

with its implied duty to complete the contracted-for repairs in a 

workmanlike manner. Leaving aside whether expert testimony 

would be necessary under different facts, expert testimony 

was necessary in this case to determine the technical sufficiency of McGill’s structural work and installations. 52 The 

50 See Hone v. Advanced Shoring & Underpinning, 291 P.3d 832 (Utah App. 

2012).

51 See id.

52 See CCC Group, Inc. v. South Cent. Cement, Ltd., 450 S.W.3d 191 (Tex. 

App. 2014).
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technical nature of the repair work and the number of potential 

factors affecting its durability were outside the scope of ordinary experience.

[33] Lion argues that Michael provided such expert testimony and that the court erred in disregarding it. We disagree. 

The trial court is given discretion in determining whether 

or not a witness is qualified to state an expert opinion, and 

such determination will not be disturbed on appeal absent an 

abuse of discretion. 53 It is within the trial court’s discretion to 

determine whether there is sufficient foundation for an expert 

witness to give an opinion about an issue in question. 54 The 

court found that Michael’s testimony “did not rise to the degree 

necessary for him to have an accepted expert opinion as to the 

work performed.”

The district court did not abuse its discretion. Michael 

opined that McGill performed its work in an unworkmanlike 

manner by pouring concrete during the day when it would 

freeze at night before the concrete had set. But, on crossexamination, Michael admitted he did not know the scope of 

the work McGill had agreed to undertake under the contract 

nor what products McGill had used on the Lion building. 

Richard testified that McGill did not use concrete but, rather, 

“Thoropatch,” and that McGill used lasers to determine the 

ambient temperature and never applied the product below its 

specified ambient temperature.

Michael admitted he had observed the facade only from 

the ground level and had never conducted any testing in relation to the case. Michael also admitted that his experience 

in masonry work primarily involved a short period decades 

before and that he did not know the standard of people in the 

concrete and masonry industry in 2009, when McGill performed its work.

53 Bristol v. Rasmussen, 249 Neb. 854, 547 N.W.2d 120 (1996).

54 Liberty Dev. Corp. v. Metropolitan Util. Dist., 276 Neb. 23, 751 N.W.2d 

608 (2008).
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[34,35] In the end, Michael testified that McGill must not 

have done the work in a workmanlike manner, “because it 

didn’t stick on the building. It falls off the building. So, consequently, whatever they’ve done and however it was done 

was wrong . . . .” An expert must have good grounds for the 

expert’s belief in every step of the analysis. 55 The term “good 

grounds” means an inference or assertion derived by scientific 

method and supported by appropriate validation. 56

[36,37] Michael did not know whether the exact areas 

repaired by McGill failed. And, as we have stated in other 

cases, it is a logical fallacy to assume that temporal correlation 

equals causation. 57 Simply because the facade demonstrated 

deterioration after McGill performed its work does not mean 

it was a failure by McGill to substantially comply with its 

duties under the contract that caused the deterioration. It is 

well settled that a causation opinion based solely on a temporal 

relationship is unreliable, because it is not derived from the 

scientific method. 58 Such an opinion is also unreliable because 

it is not based upon sufficient facts or data. 59

The court’s verdict was not tainted by an error at law or any 

abuse of discretion in its exclusion of evidence. Nor was it 

clearly erroneous. The trial court’s factual findings in a bench 

trial of an action at law have the effect of a jury verdict and 

will not be set aside unless clearly erroneous. 60 In reviewing a judgment awarded in a bench trial of a law action, an 

appellate court does not reweigh evidence, but considers the 

evidence in the light most favorable to the successful party 

and resolves evidentiary conflicts in favor of the successful 

55 Roskop Dairy v. GEA Farm Tech., supra note 5.

56 Id.

57 See id.

58 Id.

59 Id.

60 McCully, Inc. v. Baccaro Ranch, 284 Neb. 160, 816 N.W.2d 728 (2012).
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party, who is entitled to every reasonable inference deducible 

from the evidence. 61 The court did not clearly err in finding 

that McGill completed the work properly and in a workmanlike manner, that the work completed was necessary, and that 

McGill complied with the terms and conditions of the contract 

it had with Lion.

5. Attorney Fees

We turn to the question of whether, because of the lack 

of expert testimony by Lion that McGill performed its work 

in an unworkmanlike manner, Lion’s defense of the breach 

of contract claim and its assertion of its counterclaims were 

frivolous. The district court concluded that without an expert, 

“there was no way [Lion] could be successful in this matter, 

which [Lion] knew or should have known.”

Neb. Rev. Stat. § 25-824 (Reissue 2016) provides in relevant part:

(2) Except as provided in subsections (5) and (6) of 

this section, in any civil action commenced or appealed 

in any court of record in this state, the court shall award 

as part of its judgment and in addition to any other costs 

otherwise assessed reasonable attorney’s fees and court 

costs against any attorney or party who has brought or 

defended a civil action that alleges a claim or defense 

which a court determines is frivolous or made in bad faith.

(3) When a court determines reasonable attorney’s 

fees or costs should be assessed, it shall allocate the payment of such fees or costs among the offending attorneys 

and parties as it determines most just and may charge 

such amount or portion thereof to any offending attorney 

or party.

(4) The court shall assess attorney’s fees and costs if, 

upon the motion of any party or the court itself, the court 

finds that an attorney or party brought or defended an 

61 Hooper v. Freedom Fin. Group, 280 Neb. 111, 784 N.W.2d 437 (2010).
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action or any part of an action that was frivolous or that 

the action or any part of the action was interposed solely 

for delay or harassment. If the court finds that an attorney 

or party unnecessarily expanded the proceedings by other 

improper conduct, including, but not limited to, abuses 

of civil discovery procedures, the court shall assess attorney’s fees and costs.

(5) No attorney’s fees or costs shall be assessed if a 

claim or defense was asserted by an attorney or party in a 

good faith attempt to establish a new theory of law in this 

state or if, after filing suit, a voluntary dismissal is filed 

as to any claim or action within a reasonable time after 

the attorney or party filing the dismissal knew or reasonably should have known that he or she would not prevail 

on such claim or action.

Neb. Rev. Stat. § 25-824.01 (Reissue 2016) provides:

In determining the amount of a cost or an attorney’s 

fee award pursuant to subsection (2) of section 25-824, 

the court shall exercise its sound discretion. When granting an award of costs and attorney’s fees, the court shall 

specifically set forth the reasons for such award and 

shall, in determining whether to assess attorney’s fees 

and costs and the amount to be assessed against offending attorneys and parties, consider the following factors, 

including, but not limited to: (1) The extent to which any 

effort was made to determine the validity of any action 

or claim before the action was asserted; (2) the extent of 

any effort made after the commencement of an action to 

reduce the number of claims or defenses being asserted 

or to dismiss claims or defenses that have been found 

not to be valid; (3) the availability of facts to assist the 

party to determine the validity of a claim or defense; (4) 

the relative financial position of the parties involved; (5) 

whether or not the action was prosecuted or defended in 

whole or in part in bad faith; (6) whether or not issues 

of fact, determinative of the validity of a party’s claim 
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or defense, were reasonably in conflict; (7) the extent 

to which the party prevailed with respect to the amount 

of and number of claims in controversy; (8) the amount 

or conditions of any offer of judgment or settlement in 

relation to the amount or conditions of the ultimate relief 

granted by the court; (9) the extent to which a reasonable 

effort was made to determine prior to the time of filing of 

a claim that all parties sued or joined were proper parties 

owing a legally defined duty to the plaintiff or defendant; 

and (10) the extent of any effort made after the commencement of an action to reduce the number of parties 

in the action.

[38] In determining whether to assess attorney fees and costs 

and the amount to be assessed against offending attorneys and 

parties, the court considers a number of factors, including, 

but not limited to, the 10 factors listed in § 25-824.01. 62 On 

appeal, a trial court’s decision awarding or denying attorney 

fees and the amount thereof will be upheld absent an abuse 

of discretion. 63

[39] The term “frivolous” connotes an improper motive or 

legal position so wholly without merit as to be ridiculous. 64

Section 25-824(5) contemplates that attorney fees may be 

assessed when a party persists in asserting a claim after it 

knows or reasonably should know it would not prevail on the 

claim. 65 While Lion’s defense and counterclaims may not have 

begun as frivolous, the district court did not abuse its discretion 

in determining that after several years of discovery and pretrial 

motions and hearings, Lion reasonably should have known 

it would not prevail without expert testimony with proper 

62 In re Guardianship of Aimee S., 26 Neb. App. 380, 920 N.W.2d 18 (2018).

63 See White v. Kohout, 286 Neb. 700, 839 N.W.2d 252 (2013). See, also, 

§ 25-824.01.

64 Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).

65 George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947 

N.W.2d 510 (2020).
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foundation establishing that McGill’s work was not done in a 

workmanlike manner. Likewise, we do not find that the district 

court abused its discretion in determining the amount of the 

fees and expenses to be awarded.

6. Prejudgment Interest

[40] Finally, we turn to the question of prejudgment interest. The judgment in favor of McGill was in the amount of 

$25,000, plus prejudgment interest at a rate of 12 percent per 

year commencing November 1, 2009, for a total prejudgment 

interest amount of $38,875. Awards of prejudgment interest are 

reviewed de novo. 66

Neb. Rev. Stat. §§ 45-103.02(1) and (2) and 45-104 (Reissue 

2010) provide alternate and independent means of recovering prejudgment interest. 67 All three of these statutory provisions establish different criteria for the recovery of prejudgment interest, and none makes the recovery of prejudgment 

interest contingent on proof of another. 68

Section 45-103.02(1) provides for prejudgment interest of 

unliquidated claims:

Except as provided in section 45-103.04, interest as provided in section 45-103 shall accrue on the unpaid balance 

of unliquidated claims from the date of the plaintiff’s first 

offer of settlement which is exceeded by the judgment 

until the entry of judgment if all of the following conditions are met:

(a) The offer is made in writing upon the defendant by 

certified mail, return receipt requested, to allow judgment 

to be taken in accordance with the terms and conditions 

stated in the offer;

66 AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 

(2020).

67 See Weyh v. Gottsch, supra note 5.

68 Id.
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(b) The offer is made not less than ten days prior to the 

commencement of the trial;

(c) A copy of the offer and proof of delivery to the 

defendant in the form of a receipt signed by the party or 

his or her attorney is filed with the clerk of the court in 

which the action is pending; and

(d) The offer is not accepted prior to trial or within 

thirty days of the date of the offer, whichever occurs 

first. 69

The purpose of § 45-103.02 is to encourage settlement of tort 

cases by authorizing the recovery of prejudgment interest when 

a reasonable settlement demand is refused. 70

Section 45-103.02(2) authorizes the recovery of prejudgment interest of liquidated claims 71 and provides: “Except as 

provided in section 45-103.04, interest as provided in section 45-104 shall accrue on the unpaid balance of liquidated 

claims from the date the cause of action arose until the entry 

of judgment.”

Section 45-104 authorizes the recovery of prejudgment 

interest on four categories of contract-based claims without 

regard to whether the claim is liquidated or unliquidated. 72

Those four categories are (1) on any instrument in writing; (2) 

on settlement of the account from the day the balance shall 

be agreed upon; (3) on money received to the use of another 

and retained without the owner’s consent, express or implied, 

from the receipt thereof; and (4) on money loaned or due and 

withheld by unreasonable delay of payment. Section 45-104 

provides:

Unless otherwise agreed, interest shall be allowed at 

the rate of twelve percent per annum on money due 

on any instrument in writing, or on settlement of the 

69 See, also, id.

70 Id.

71 See id.

72 Id.
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account from the day the balance shall be agreed upon, on 

money received to the use of another and retained without 

the owner’s consent, express or implied, from the receipt 

thereof, and on money loaned or due and withheld by 

unreasonable delay of payment. Unless otherwise agreed 

or provided by law, each charge with respect to unsettled 

accounts between parties shall bear interest from the date 

of billing unless paid within thirty days from the date 

of billing.

The court did not explicitly state under which statute it was 

awarding prejudgment interest. It awarded interest commencing November 1, 2009, however, which was just 2 days after 

October 30, the date McGill presented Lion with an invoice for 

the work performed. In that respect it appears the court relied 

on § 45-104.

Lion makes several arguments on appeal that the claim 

was not liquidated for purposes of prejudgment interest under 

§ 45-103.02(2) and that McGill failed to establish the statutory 

preconditions for prejudgment interest under § 45-103.02(1) 

for an unliquidated claim. McGill does not dispute, however, 

that its claim was unliquidated, and it does not assert that it 

was entitled to prejudgment interest for an unliquidated claim 

under § 45-103.02(1). McGill instead argues that the requirements of § 45-104 were clearly satisfied.

Lion’s only challenge on appeal to an award of prejudgment 

interest pursuant to § 45-104 is that McGill failed to comply 

with Neb. Ct. R. Pldg. § 6-1108(a), which states:

(a) Claims for Relief. A pleading which sets forth a 

claim for relief, whether an original claim, counterclaim, 

cross-claim, or third-party claim, shall contain (1) a caption, (2) a short and plain statement of the claim showing 

that the pleader is entitled to relief, and (3) a demand 

for judgment for the relief the pleader seeks. Relief 

in the alternative or of several different types may be 

demanded. If the recovery of money be demanded, the 
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amount of special damages shall be stated but the amount 

of general damages shall not be stated; and if interest 

hereon be claimed, the time from which interest is to be 

computed shall also be stated.

(Emphasis supplied.)

[41] Lion argues that McGill did not comply with § 6-1108(a), 

because the complaint did not identify a date for commencement of prejudgment interest. The complaint did ask for prejudgment interest, and Lion had an opportunity to be heard on 

the issue before it was decided. We have held that compliance 

with § 6-1108(a) is not determinative where entitlement to 

interest is based on statute and the adverse party had notice and 

an opportunity to be heard prior to judgment. 73 Therefore, we 

find no merit to Lion’s assertion that McGill’s failure to strictly 

comply with § 6-1108(a) precluded the district court’s award of 

prejudgment interest.

VI. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.

Miller-Lerman, J., not participating.

Cassel, J., concurs in the result.

73 AVG Partners I v. Genesis Health Clubs, supra note 66.