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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

DE VRIES v. L & L CUSTOM BUILDERS

Cite as 310 Neb. 543

Tabe de Vries, an individual, and Bonnie J. 

de Vries, an individual, appellees and 

cross-appellants, v. L & L Custom 

Builders, Inc., a Nebraska 

corporation, appellant 

and cross-appellee.

___ N.W.2d ___

Filed December 17, 2021. No. S-20-577.

1. Verdicts: Appeal and Error. When reviewing a jury verdict, the appellate court considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.

2. Verdicts: Juries: Appeal and Error. A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent 

evidence presented to the jury upon which it could find for the successful party.

3. Verdicts: Juries: Presumptions: Appeal and Error. When the jury 

returns a general verdict for one party, an appellate court presumes that 

the jury found for the successful party on all issues raised by that party 

and presented to the jury.

4. Verdicts: Juries: Presumptions: Words and Phrases: Appeal and 

Error. The “general verdict” rule, which is also referred to as the “two 

issue” rule, is a policy rule which provides that where a general verdict 

is returned for one of the parties, and the mental processes of the jury 

are not tested by special interrogatories to indicate which issue was 

determinative of the verdict, it will be presumed that all issues were 

resolved in favor of the prevailing party, and, where a single determinative issue has been presented to the jury free from error, any error in 

presenting another issue will be disregarded.

5. Trial: Appeal and Error. One cannot silently tolerate error, gamble on 

a favorable result, and then complain that one guessed wrong.

6. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not presented to or passed upon by the trial court.

Nebraska Supreme Court Online Library

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

12/17/2021 08:08 AM CST
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DE VRIES v. L & L CUSTOM BUILDERS

Cite as 310 Neb. 543

7. Courts: Judgments: Appeal and Error. A motion for reconsideration, 

which is considered nothing more than an invitation to the court to 

consider exercising its inherent power to vacate or modify its own judgment, is insufficient for purposes of asking a trial court to pass upon an 

issue in order to properly preserve it for appeal.

8. Limitations of Actions: Appeal and Error. The point at which a statute 

of limitations begins to run must be determined from the facts of each 

case, and the decision of the district court on the issue of the statute of 

limitations normally will not be set aside by an appellate court unless 

clearly wrong.

9. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling 

on a motion for directed verdict, an appellate court must treat the motion 

as an admission of the truth of all competent evidence submitted on 

behalf of the party against whom the motion is directed; such being the 

case, the party against whom the motion is directed is entitled to have 

every controverted fact resolved in its favor and to have the benefit of 

every inference which can reasonably be deduced from the evidence.

10. Judgments: Verdicts: Appeal and Error. Review of a ruling on a 

motion for judgment notwithstanding the verdict is de novo on the 

record.

11. Jury Instructions: Appeal and Error. Whether a jury instruction is 

correct is a question of law, which an appellate court independently 

decides.

12. ____: ____. Failure to object to jury instructions after they have been 

submitted to counsel for review or to offer more specific instructions if 

counsel feels the court-tendered instructions are not sufficiently specific 

precludes raising an objection on appeal.

13. ____: ____. Jury instructions are subject to the harmless error rule, and 

an erroneous jury instruction requires reversal only if the error adversely 

affects the substantial rights of the complaining party.

14. Jury Instructions: Proof: Appeal and Error. In an appeal based on 

a claim of an erroneous jury instruction, the appellant has the burden 

to show that the questioned instruction was prejudicial or otherwise 

adversely affected a substantial right of the appellant.

15. Jury Instructions: Appeal and Error. Where jury instructions are 

claimed deficient on appeal and such issue was not raised at trial, an 

appellate court reviews for plain error.

16. Judgments: Appeal and Error. An appellate court reviews a denial of 

a motion to alter or amend the judgment for an abuse of discretion.

17. Damages: Appeal and Error. On appeal, the fact finder’s determination of damages is given great deference. The amount of damages to be 

awarded is a determination solely for the fact finder, and its action in 
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DE VRIES v. L & L CUSTOM BUILDERS

Cite as 310 Neb. 543

this respect will not be disturbed on appeal if it is supported by evidence 

and bears a reasonable relationship to elements of damages proved.

18. Damages. While the amount of damages presents a question of fact, the 

proper measure of damages presents a question of law.

19. Damages: Appeal and Error. An award of damages may be set aside 

as excessive or inadequate when, and not unless, it is so excessive or 

inadequate as to be the result of passion, prejudice, mistake, or some 

other means not apparent in the record.

20. Contracts: Compromise and Settlement: Appeal and Error.

Allocation of a settlement agreement is reviewed for an abuse of 

discretion.

21. Limitations of Actions: Breach of Warranty: Contractors and 

Subcontractors. Where the basis of the claim is improper workmanship 

resulting in defective construction, under either negligence or breach of 

the implied warranty to perform in a workmanlike manner, the statute 

of limitations of Neb. Rev. Stat. § 25-223 (Reissue 2016) runs from the 

date of substantial completion of the project, not the date of any specific 

act which resulted in the defect.

22. Equity: Estoppel: Limitations of Actions. Equitable estoppel may be 

successfully asserted to avoid the statute of limitations defense when 

one lulls his or her adversary into a false sense of security, thereby causing that person to subject his or her claim to the bar of the statute of 

limitations, and then pleads the very delay caused by his or her conduct 

as a defense to the action when it is filed.

23. Estoppel: Limitations of Actions. Estoppel does not extend the statute 

of limitations but prevents a party from pleading and utilizing the statute 

as a bar.

24. Summary Judgment: Appeal and Error. The denial of a motion for 

summary judgment is neither appealable nor reviewable.

25. Estoppel. When a plaintiff raises estoppel to avoid or rebut an affirmative defense that has been alleged in a responsive pleading, evidence of 

estoppel is generally admissible without being formally pled.

26. Jury Instructions: Statutes. Directly quoting an applicable statute is a 

permissible form of jury instruction.

27. Jury Instructions. Where a general charge fairly presents the case to 

the jury, it is not error for the trial court, in the absence of a request for 

a more specific instruction, to fail to give a more elaborate one.

28. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

statement of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s failure to 

give the requested instruction.
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DE VRIES v. L & L CUSTOM BUILDERS

Cite as 310 Neb. 543

29. Jury Instructions: Appeal and Error. If the instructions given, which 

are taken as a whole, correctly state the law, are not misleading, and 

adequately cover the issues submissible to a jury, there is no prejudicial 

error concerning the instructions and necessitating a reversal.

30. Equity: Estoppel: Pretrial Procedure. Discovery periods and equitable 

estoppel involve two different doctrines.

31. Equity: Estoppel: Limitations of Actions. Equitable estoppel is not 

based upon the construction of a statute of limitations, but on the common law.

32. Pleadings: Proof. The party who pleads a setoff bears the burden of 

proving it.

33. Verdicts: Remittitur. Where a verdict is excessive, but not so much as 

to indicate passion or prejudice on the part of the jury, the error may 

be corrected by remittitur, if the excess can be estimated with reasonable certainty.

34. Remittitur: Appeal and Error. An appellate court should order remittitur only when the award is contrary to all reason.

35. Verdicts: Remittitur. If there is no method by which a court can 

rationally ascertain the extent of the excess of a verdict, a remittitur cannot be required, for the reason that under such circumstances, a remittitur is nothing more than a substitution of the judgment of the court for 

that of the fact finder.

36. Damages. Amounts expended to investigate the extent of a defect and 

determine the proper course of remediation are recoverable damages, 

not litigation costs.

37. Damages: Property: Breach of Warranty. The basic goal of the court 

for a breach of warranty concerning building construction or injury to 

a building or other structure is compensation—that is, to award such an 

amount of money as will restore the injured party to the same property 

status which he or she occupied immediately prior to the injury.

38. Damages. Because the facts vary from case to case, a rule of damages 

which produces compensation in one case may be overcompensation (or 

undercompensation) in another case.

39. Damages: Property. If, in fact, the cost of repair or restoration exceeds 

the market value of the property just before the injury, then the proper 

measure of damages is the market value of the property just before the 

damages were incurred, less any salvage.

40. Damages. Public perceptions of a defect when the evidence demonstrates there is none is an improper basis for recovery.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.
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DE VRIES v. L & L CUSTOM BUILDERS

Cite as 310 Neb. 543

Brian T. McKernan, Robert D. Mullin, Jr., and Matthew G. 

Munro, of McGrath, North, Mullin & Kratz, P.C., L.L.O., for 

appellant.

Gregory C. Scaglione, Quinn R. Eaton, Minja Herian, and 

Cody B. Nickel, of Koley Jessen, P.C., L.L.O., for appellees.

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

Freudenberg, JJ., and Weimer, District Judge.

Per Curiam.

I. INTRODUCTION

The homeowners sued the builder of their house for defects 

in the construction of the house and in the preparation of the 

lot it was built on, part of which contains and the other part of 

which adjoins a riverbank bluff. The jury rendered a general 

verdict in favor of the homeowners, after finding in a special 

verdict form that the homeowners’ claims were not barred by 

the statute of limitations. The builder appeals, raising issues 

pertaining to the statute of limitations and the amount of damages. The homeowners cross-appeal with respect to damages. 

We affirm the judgment.

II. BACKGROUND

Tabe de Vries and Bonnie de Vries brought suit on February 

15, 2017, against L & L Custom Builders, Inc. (L&L), and 

Thompson, Dreessen & Dorner, Inc. (TD2). The parties agreed 

the house was substantially completed in November 2012 for 

a total price of $847,456.83. The land was purchased for an 

additional $70,152.61.

1. Pleadings

In their operative amended complaint, the de Vrieses alleged 

they had entered into a contract with L&L to build their 

home on an 80-foot-high bluff along a riverbend and that 

L&L assured them the selected site was safe to build on. 

Before the house was completed, TD2 prepared two reports 

of “Geotechnical Exploration” in relation to construction on 
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Cite as 310 Neb. 543

the site, which indicated bluff failures. The de Vrieses asserted 

that L&L withheld a TD2 report and that this report was not 

disclosed to them until May 2016.

The de Vrieses alleged that after repairs were made following a walk-through inspection, a large crack appeared in the 

basement ceiling in July 2014. This began a series of geotechnical investigation reports by TD2 that recommended continued monitoring and study until a final report on May 20, 2016, 

suggesting two mechanisms caused the increasing observable 

distress at the house.

Also in May 2016, the de Vrieses observed that part of the 

riverbluff had fallen into the river. Subsequently, the de Vrieses 

discovered that L&L had never installed a “French drain,” as 

L&L had represented.

The de Vrieses alleged that in a meeting between the 

de Vrieses, L&L, and TD2 on May 24, 2016, L&L and TD2 

disagreed as to how to proceed with repairs. L&L pointed out 

that TD2’s sixth report could not explain the cause of all the 

issues observed with the house. Another meeting between the 

de Vrieses and L&L took place on July 28, in which L&L continued to disagree with TD2’s proposed plan, which led to the 

de Vrieses’ decision to sue.

The de Vrieses alleged, based on these facts, several claims 

against L&L and TD2, including breach of contract. L&L 

alleged the statute of limitations as an affirmative defense. 

TD2 alleged as affirmative defenses the statute of limitations 

and that any damages suffered by the de Vrieses were caused 

by the acts or omissions of third parties over which TD2 had 

no control.

2. Motions for Summary Judgment

L&L moved for summary judgment, alleging that there was 

no genuine issue that the de Vrieses’ claims against it were 

barred by the statute of limitations. TD2 filed a similar motion.

L&L argued at the hearing on the motion that the de Vrieses 

had knowledge that a problem existed, albeit not the nature 

of the problem or necessarily that they had a cause of action, 
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Cite as 310 Neb. 543

well before the expiration of the 4-year statute of limitations 

and, indeed, within the first 3 years after construction. Thus, 

the discovery period did not apply.

With regard to any claim that the statute of limitations was 

tolled by fraudulent concealment under a theory of equitable 

estoppel, L&L asserted that the de Vrieses could not invoke 

the doctrine of equitable estoppel because they did not plead 

it. Alternatively, L&L asserted that assurances by L&L, that 

they would make the necessary repairs whenever they were 

able to discern what precisely the cause of the problem was 

and what was needed to fix it, were insufficient to support 

equitable estoppel.

After consideration of all the evidence submitted at the hearing on the motions, the court found there was a genuine issue 

as to when the de Vrieses reasonably discovered their potential 

claims and as to whether there was a “continuing representation issue.”

The court found it “ironic” that while arguing the de Vrieses 

should have known the existence of the problem as early as 

July 2014, L&L and TD2, as professionals in their respective 

fields, were not themselves able to discover the source of the 

problem for some time and continued to represent the observed 

distress as minor and completely normal.

3. Settlement With TD2

Shortly before trial was set to begin, the de Vrieses and TD2 

filed a joint stipulation to dismiss the de Vrieses’ action as 

against TD2 only, with prejudice. Per the stipulation, the court 

dismissed the de Vrieses’ complaint as against TD2.

L&L did not object to the dismissal and did not move for 

the de Vrieses to produce the settlement agreement at that time.

The de Vrieses moved in limine to prohibit reference to 

the jury of their settlement with TD2. L&L agreed with the 

de Vrieses that it should not be able to mention to the jury 

that there had been a settlement between the de Vrieses and 

TD2. However, L&L wished to reserve its rights to question witnesses and bring up that TD2 was a party and had 
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DE VRIES v. L & L CUSTOM BUILDERS

Cite as 310 Neb. 543

generated opinions concerning the case, on the grounds that it 

was relevant to whether L&L had proximately caused any of 

the damages. The de Vrieses responded that this issue could be 

explored without mentioning that TD2 had been a party.

The district court ruled that L&L could discuss with witnesses and experts facts and opinions pertaining to L&L’s fault, 

or lack thereof, but not that TD2 was a party and settled. In 

ruling on the motion in limine, the court observed that L&L 

had not brought a counterclaim against TD2 on any theory of 

joint liability.

4. Motion in Limine on “Stigma” Damages

The court sustained L&L’s pretrial motion in limine to 

exclude any evidence by the de Vrieses at trial pertaining to its 

claim of “stigma” damages against L&L. The court described 

the term “stigma damages” as damages due to diminished market value of the home even after all repairs are made.

The de Vrieses and the court discussed the de Vrieses’ intention to present an offer of proof regarding stigma damages. At 

trial, outside the presence of the jury, the de Vrieses made an 

offer of proof that their expert witness, an appraiser, would 

have testified that due to the real estate disclosure statement, 

the public aspect of the lawsuit, and the visual inspection of 

the bluff by any potential buyer, the fair market value of the 

property, even after completion of all corrective work, would 

be $213,000 less than it would have been but for the defects, as 

the expert elaborated upon in exhibit 277. Exhibit 277 was not 

offered or entered into evidence as part of the offer of proof but 

is found in the bill of exceptions.

5. Evidence Presented at Trial

Bonnie testified at trial that she and Tabe decided to work 

with L&L to build a custom house before deciding on the lot. 

When they found the lot at issue, before buying it, she looked 

at it with Eric Lakeman, a co-owner of L&L. Adjoining the lot 

was a riverbluff, approximately 150 feet away. Bonnie specifically asked Lakeman whether it would be safe to build there, 
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given that it was a hill alongside a riverbank. Bonnie testified that Lakeman assured her it would be safe to build there 

and “the bank wasn’t a problem.” In fact, he told Bonnie he 

had lived in the area his whole life, and Bonnie said she was 

assured by Lakeman the bank had not moved. The de Vrieses 

purchased the lot directly from the owner, along with a separate lot consisting of a 10-foot strip that encompasses the river

bluff. They entered into a contract with L&L to build a house 

on the lot.

The contract price did not include “landscaping” services. 

L&L subcontracted with DMS Landscaping (DMS) to construct four retaining walls, but, according to Lakeman, most of 

the work conducted by DMS was landscaping done through a 

contract directly with the de Vrieses. Lakeman described this 

as including the “rough and final grading” of the lot.

Lakeman testified that as a result of the retaining walls, 

a French drain was required, and that he understood DMS 

was going to install one. Sometime in 2015 or 2016, however, DMS discovered the French drain had not actually been 

installed. The owner of DMS testified that all the work DMS 

did on the de Vrieses’ property was supervised and approved 

by L&L and that L&L was at all times acting as the general 

contractor. He testified DMS was not responsible for any of 

the drainage plan or installation of drainage “inside the envelope of the house.”

(a) Preconstruction TD2 Reports From 

March 2011 and March 2012

TD2 had prepared a geotechnical investigation report on the 

lot on March 31, 2011, for a different prospective builder in 

relation to a different prospective client with an expected build 

of a single-story house with a walkout basement. The lot subject to the report did not contain the 10-foot strip alongside the 

river, which the de Vrieses acquired as part of their purchase of 

the land. L&L obtained from TD2 a copy of its report before 

commencing construction.
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Cite as 310 Neb. 543

TD2 stated in the report that the encountered natural soils 

were “expected to be suitable for direct support of the structure utilizing shallow spread foundations without the need for 

improvement of the existing soils.” However, TD2 observed 

“clayey till [that] is known to be swell susceptible” and “recommended that these soils be maintained in a moisture content 

state at or above optimum moisture before concrete is placed.” 

The 10-page report contained numerous other specifications for 

proper site preparation for a house on the lot.

TD2 described the bluff along the river near the lot appeared 

to be “experiencing failure by blocks toppling from the upper 

zones of the bluff coupled with the debris being eroded and 

the bluff being undercut by the River.” At the time of the 

report, the lot lines examined were 110 to 200 feet from the 

bluff. Thus, TD2 did not expect a house built on the lot to “be 

troubled by slope movements in the near future.” But, “over 

time as the bluff continues to experience failures, the bluff may 

work towards the lot.”

L&L asked TD2 to again inspect the site following excavation and before foundation construction. That inspection led to 

another report. In this report, dated March 13, 2012, TD2 did 

not recommend changes from its prior report regarding design 

and construction of foundation elements. However, it presented 

an alternative subgrade specification of crushed limestone in 

lieu of compacted soils.

There was evidence that L&L emailed a copy of the March 

2011 report to Tabe in September 2011, but Bonnie testified 

that neither she nor Tabe recalled receiving the report. The first 

time she was made aware of it was in May 2016.

(b) Initial Drywall Cracking in 2014

After construction of the house and the de Vrieses had 

moved in, some drywall cracking appeared. The 1-year walkthrough for the express warranty was conducted by agreement of all parties approximately 17 months after construction was completed. According to Bonnie, Lakeman told her 
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and Tabe not to worry about the drywall cracks, as they were 

“settlement” and “cosmetic.”

L&L repaired the cracks in June 2014. Lakeman testified 

that the cracking observed at that time was “[k]ind of standard stuff.”

The following month, the de Vrieses noticed a new crack in 

a downstairs room, and notified L&L. L&L contacted TD2 to 

look at it.

Lakeman testified that the new crack, which he observed 

in August 2014, “was a concern of mine” both because it was 

outside the normal settlement period and because it was an 

aggressive, c-shaped, jagged crack that was not in a standard 

location. Lakeman also observed cracking in the tile floor. 

Bonnie testified, however, that Lakeman assured her and Tabe 

that the problems were due to normal settlement, saying, 

“‘[d]on’t worry about it’” and “‘[w]e’ll figure it out and take 

care of it.’” L&L did not object to this testimony.

(c) TD2 Report Dated September 16, 2014

At L&L’s request, TD2 conducted a site visit and inspection 

on August 26, 2014, and prepared a report dated September 

16, 2014. The de Vrieses were not billed for these services. In 

the September 2014 report, TD2 noted apparent settlement on 

the west exterior wall of the house and the rear patio on the 

north side. TD2 set forth in the report that it was “important 

to note that it appears to be a settlement rather than a heave 

or swell in the soil because of the soil material types encountered at the site.” TD2 also stated, “In general terms, the interior distress observed was minor based on my observations 

and experience.”

The report noted that the upper portion of the soil profile 

around most of the house was “very moist” and that TD2 suspected “this soil material has gained in moisture content from 

what it was at the time of construction.” It did not perceive 

this as causing the observed distress but suggested that “some 

efforts be made to promote a decrease in the exterior soil 
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moisture, which I would expect to be related to slowing down 

or reducing future cracking and distress.”

TD2 recommended monthly monitoring of some of the more 

prominent cracks over a period of 6 months “to better gauge 

how movements may be occurring.” TD2 elaborated that the 

goal of the monitoring program is to define the rate and magnitude of any continuing movements to justify the level and 

timing of any repairs that can or should be made. TD2 summarized that “the distress observed at our inspection visit is 

considered minor at this time” and “interpreted to be due to 

settlement and not heave.”

Bonnie testified that she was provided a copy of the report 

and understood at that time that the observed cracking was part 

of the normal settlement process.

(d) 2014 Additional Work by DMS

Bonnie testified that Lakeman and the owner of DMS conferred at the house as to how to best address the observed exterior moisture in the soil near the house. After that discussion, 

DMS removed mulch, resloped some of the landscaping, and 

added a downspout. DMS’ work was completed in October or 

November 2014.

(e) 2015 Monitoring

Lakeman testified that in accordance with TD2’s recommendations, in 2014 and 2015, he made trips to the de Vrieses’ 

house to monitor any movement. He observed that cracks were 

increasing in size and that more cracks were developing around 

the house. Bonnie testified that they waited and monitored for 

about a year after the 2014 report.

(f) Engineering Report Dated June 2, 2015

At L&L’s direction, the house was inspected by Donan 

Engineering Co., Inc (Donan). L&L’s relationship with Donan 

was not fully explained. The de Vrieses were apparently not 

charged for this inspection. Lakeman assisted in the inspection by pointing out areas of concern. The Donan report, 
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completed on June 2, 2015, noted cracking in the basement 

floor and in the drywall on the walls that was continuing and 

progressing. Donan concluded that the cause of the cracks in 

the drywall on the walls and ceilings and displacement of concrete floors and slabs was “settlement due to ‘hillside creep.’” 

Donan described that the house was constructed on a steep 

embankment and that “[s]oils on steep slopes are prone to a 

phenomenon known as hillside creep, where the soils slowly 

move down the hill.” The Donan report set forth that settlement 

would continue until the soil achieves equilibrium and that 

stability of the foundation could be achieved by “supporting 

the foundation of the house on soils below the soils subject to 

hillside creep with hydraulic piers and tiebacks.”

(g) TD2 Report Dated August 18, 2015

L&L requested that TD2 make another site visit, which 

occurred on August 5, 2015, and that it prepare an updated 

report, which was issued on August 18. TD2 reviewed the 

Donan report and found its conclusions regarding hillside 

creep as the mechanism causing the distress in the house “difficult to justify.” TD2 expressed the opinion that the “present observable distress . . . is less than moderate severity.” 

TD2 recommended “an additional level of study be used to 

determine what and how structural and non-structural elements of the house may or may not be moving.” This required 

repeated surveys over time, “because a single measuring occasion does not provide adequate information for a conclusion” 

and because monitoring will “provide an indication of slab or 

structural wall movement which better identifies the results of 

the cause of the distress.”

(h) September 2015 Meeting

Bonnie was provided with a copy of the Donan report in 

August 2015, but testified, without objection, that L&L always 

told her it would find the cause and take care of it. Bonnie 

was aware that L&L and TD2 did not agree with the Donan 
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report. Bonnie testified she was not concerned, because L&L 

and TD2 were working with her and Tabe to sort things out.

The de Vrieses, L&L, and TD2 met in September 2015 to 

discuss the matter, at which point L&L and TD2 proposed they 

conduct a more extensive investigation that would entail borings and a couple of surveys at different future dates to track 

movement. Bonnie testified that they agreed and that the surveys continued through April 2016.

Bonnie testified that she and Tabe understood the cause 

of the cracks could still be settlement and explained that she 

thought, “[O]kay, they are still trying to sort it out.” According 

to Bonnie, nobody said, “‘We’re really worried about this.’” 

When Bonnie expressed concern to L&L about the progressing cracks, according to her testimony: “[I]t was usually, 

‘Look, we’re trying to find the cause. We’ll take care of it. But 

you have to find the cause to take care of it.’ And so we did 

what they asked.” Bonnie testified they were under the impression that L&L was going to discover what was happening and 

fix it.

(i) TD2 Report Dated November 19, 2015

TD2 took borings as discussed at the September 2015 meeting and as part of its testing and monitoring plan set forth in its 

August 18, 2015, report. In the first of two followup reports, 

dated November 19, 2015, TD2 concluded, based on soil samples from the borings, that the soil was not “swell susceptible”; 

therefore, “basement slab heave would be an unlikely cause for 

the distress.”

According to TD2, it was “still early to speculate,” but with 

the assumption that the slab was poured perfectly flat and 

level, “an interpretation would be consistent with perimeter 

settlement and not center heave.” This “may also help explain 

why cracking in the drywall is not prevalent in the center of 

the house in ceilings and floors.” The report suggested another 

“exterior monitoring” in 60 days and another interior floor 

levelness survey “at least 120 days out.”
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(j) Invoices Forwarded to the 

de Vrieses on March 1, 2016

On March 1, 2016, TD2 forwarded its invoice for professional services from July 6 through October 4, 2015, consisting 

of a geotechnical consultation for a site visit and an interior 

soil sampling of the borings. It also forwarded its invoice for 

professional services from October 5, 2015, through May 29, 

2016, consisting of a geotechnical consultation, an exterior survey, and an interior survey. The cover letter stated, “Enclosed 

is an invoice that was originally issued to [L&L] in October 

2015. I found out today from [Lakeman] with [L&L] that the 

invoice should have been issued to you.”

(k) TD2 Report Dated May 20, 2016

TD2 submitted its final report on May 20, 2016, following two additional rounds of monitoring at the exterior of the 

structure and one more round of monitoring in the basement 

floor level at the site. In the report, TD2 reiterated its conclusion that the soil was not “swell susceptible” and that therefore, 

the “basement slab heave would be an unlikely cause for the 

distress.” The report provided further that, over the prior 6 

months, “the total movements . . . generally do not show large 

or continuing movements”—although TD2 noted two points at 

the west end of the building on the concrete wall showing a 

differential of about an inch.

TD2 opined that “at least two different mechanisms are acting to cause the observable distress at the house.” The first 

mechanism listed by TD2 in its report, exhibited at the rear 

patio, was “either the self-compression of the fill materials 

placed or the hydrocompaction of the supporting soils.” The 

other distress to the house was caused by “a perimeter settlement of the foundations in the eastern portion of the house . . . 

due to infiltration of water to the bearing level causing softening and compression of the bearing soils.”

TD2 articulated the caveat that its opinions were “what the 

data suggest at this time” and “[t]hat is not to say that my 

interpretation is the only possible explanation or that other 
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mechanisms may be acting alone or in conjunction as well.” It 

stated additional monitoring once or twice a year “can be used 

to maintain a record of exterior and or relative interior movements over time if desired” to provide “assurance that continuing movements are or are not present.”

(l) 2016 Meetings and Other Discoveries

Bonnie testified that in all her discussions with Lakeman 

about the investigation of the cracking up through the summer 

of 2016, following TD2’s final report on May 20, Lakeman had 

expressed that the problems were cosmetic, that L&L would 

continue to monitor the situation, and that “‘we’ll fix it, take 

care of it when we’re finished.’” But, after TD2’s May 2016 

final report, “we said, well, wait a minute. Suddenly we have 

all these costly repairs when things have been minor, ‘don’t 

worry about it, we’ll repair it.’”

L&L and TD2 met with the de Vrieses on May 20, 2016, 

and in July 2016. At the meetings, L&L and TD2 could not 

agree as to what should be done. At that point, the de Vrieses 

“proceeded to try and get more opinions, since . . . it was an 

extensive repair.” Bonnie testified that it finally became apparent in May 2016, after TD2’s final results were presented, that 

“there were major issues that were not going to be addressed or 

couldn’t be addressed by the current people who were dealing 

with it.”

According to Bonnie, it was not until the May 2016 meeting 

that the de Vrieses discovered TD2 had conducted an inspection of the lot in March 2011 for a different prospective builder 

and a different prospective client. Likewise, they did not 

receive a 2012 report by TD2 until May 2016. Bonnie testified 

it was also in May 2016 that she first noticed issues with the 

bluff. Chunks of it had fallen off, and such failure was getting 

closer to the lot line.

(m) The de Vrieses’ Investigations

On December 27, 2017, the de Vrieses entered into a contract with Terracon Consultants, Inc. (Terracon), to conduct a 
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forensic investigation concerning the house to determine potential causes of distress and remedial measures. The de Vrieses 

also hired King Kuebler Little, a structural engineer, to inspect 

the house and lot and recommend remedial measures. In April 

2019, Little and Stephen Nickel, a civil, geotechnical engineer, worked together on a report setting forth the cause of the 

defects and recommendations for repairs.

Little and Nickel found a layer of crushed limestone containing free water beneath the soil fill, indicating the limestone 

had been used to provide a base for the backfill required by 

an overexcavation of the basement subgrade, which had not 

previously been revealed. The crushed limestone was a permeable zone that carried water to the glacial till, which swelled 

and brought on the heave seen in the basement floor slab. The 

report also found that it should have been clear the lot had a 

significant amount of overland surface water runoff requiring 

extra protective measures, including a deep interceptor drain, 

or French drain, along the east side, which drain was eventually installed in June 2017. The extra protective measures 

should have also included an interior, underfloor draintile.

(n) Expert Testimony

Nickel was later retained by the de Vrieses as an expert 

witness. At trial, Nickel testified that while TD2’s preconstruction reports contained good recommendations, they were 

not implemented by L&L. Nickel testified that L&L failed to 

install a subgrade in a good and workmanlike manner and that 

such failure made the lot unbuildable and caused damage to 

the house through movement in excess of the acceptable movement tolerances. That damage, Nickel explained, was likely to 

continue if not remedied.

Nickel described in detail the improper preparation of the 

subgrade for the foundation for the slab. This included finding limestone at the bottom rather than at the top of the fill 

soil directly beneath the floor slab. Limestone at the location 

where it was found acted to carry water to the glacial till soil, 

which is known to be able to swell in the proper conditions. 
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Further, the soil had not been moisture conditioned and the 

site had been dug to an unusually extensive depth.

Nickel testified that L&L failed to act in a workmanlike 

manner by failing, in the ways described, to properly prepare 

the subgrade, to install interior draintile along the foundation 

walls and laterally under the concrete slab, to specify a French 

draintile on the east side of the property as part of the drainage 

for the house, and to provide specification for the bluff.

Nickel explained that the bluff had moved into the lot and 

that without more permanent remedial measures beyond the 

emergency measures already undertaken by the de Vrieses, 

it would eventually detrimentally affect the house. Nickel 

explained that contractors had installed drainage systems as 

part of the necessary work Nickel recommended for emergency 

fixes for the failed bluff. As well, Nickel had recommended 

hydroseeding the bank and maintaining a tarp over it, which 

the de Vrieses undertook. These measures had significantly 

slowed down the toppling from the bluff, but failures were 

still occurring.

Nickel testified he had explored various permanent remedial 

measures and even the least expensive measure, per a contractor’s bid, would cost $389,939, which Nickel considered fair 

and reasonable. Nickel testified without objection that the 

most expensive permanent remedial solution was $800,000 

to $1 million. Because of cost, Nickel recommended the 

de Vrieses pursue the least expensive solution of $389,939.

Little was also eventually employed by the de Vrieses as 

an expert witness and testified at trial. Little explained it was 

customary for an engineer, in preparing specifications for a 

structure on a site, to consider both the lot and the surrounding 

areas, including slopes and bluffs near the site. Little agreed 

with Nickel that the “overwhelmingly significant mechanism” 

of the damage was heave and that L&L had failed to prepare 

the subgrade in a workmanlike manner. He opined that the 

manner in which L&L prepared the subgrade failed to make 

the lot buildable for a house. The resultant movement of the 
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house was outside of acceptable movement tolerances, and the 

resultant damage would likely continue if not remedied.

(o) Diagnosis and Repair Expenses

Through both testimony and exhibits, the de Vrieses set 

forth evidence of the diagnosis and repair expenses relating to 

the defects of the house and the lot.

Bonnie testified that the de Vrieses incurred approximately 

$15,000 for Terracon’s services. They also incurred approximately $6,700 to repair the geothermal that was damaged while 

extracting borings for the study. Bonnie also described approximately $10,000 in work conducted relating to the riverbank 

and another approximately $3,200 for borings. The de Vrieses 

also paid approximately $26,000 in repairs to the French drain 

and for the creation of a new drainage system and berm to stabilize the bank to some extent.

Exhibits entered into evidence without objection reflected 

approximately $397,000 as the total amount of both the estimates for repairs not yet carried out and invoices for work 

already done. As reflected in all exhibits, whether or not 

objected to, which were entered into evidence, but not including testimony, the total cost was approximately $420,000.

6. Motions for Directed Verdict

At the close of the de Vrieses’ case, L&L moved for a 

directed verdict on the grounds of the statute of limitations, 

arguing that the visible cracks put the de Vrieses on notice of a 

defect at the latest by May 2015. Thus, they were not entitled 

to the statutory discovery period. L&L also stated with regard 

to its discovery argument, “[T]here’s no pleading that says 

. . . there’s a basis to toll that, which is required procedurally.” L&L did not make any arguments specific to the issue 

of equitable estoppel. L&L also moved for a directed verdict 

on the de Vrieses’ claim for damages related to the bluff, arguing that the allegations as to L&L’s representations that the 

lot was buildable failed to present a recoverable basis under 

the contract and that there was insufficient evidence relating 
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to causation for that claim. The court overruled the motions 

for directed verdict, finding that the issues of the statute of 

limitations and the liability in relation to the bluff failure presented factual questions for the jury to decide. L&L renewed 

its motions for directed verdict at the close of all the evidence, 

which the court again overruled.

7. Jury Instructions

The matter was submitted to the jury. In instruction No. 2, it 

was stated that the de Vrieses paid L&L a total of $847,420.71 

under the terms of the contract, the house was completed by 

March 2012, and the de Vrieses first observed some cracking 

in the house in May 2014.

Instruction No. 5 involved L&L’s affirmative defense of the 

statute of limitations. It stated in full:

Defendant affirmatively alleges that Plaintiffs’ claims 

are barred because they were not timely filed within the 

applicable statute of limitations period. Before Defendant 

may prevail on this defense against Plaintiffs, Defendant 

must prove, by the greater weight of evidence that 

Plaintiffs’ claims are barred by the Statute of Limitations, 

which provides as follows:

Any action to recover damages based on any alleged 

breach of warranty on improvements to real property or 

based on any alleged deficiency in the design, planning, 

supervision, or observation of construction, or construction of an improvement to real property shall be commenced within four years after any alleged act or omission constituting such breach of warranty or deficiency. 

If such cause of action is not discovered and could not 

be reasonably discovered within such four-year period, 

or within one year preceding the expiration of such fouryear period, then the cause of action may be commenced 

within two years from the date of such discovery or from 

the date of discovery of facts which would reasonably 

lead to such discovery, whichever is earlier. In no event 

may any action be commenced to recover damages for 
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an alleged breach of warranty on improvements to real 

property or deficiency in the design, planning, supervision, or observation of construction, or construction of an 

improvement to real property more than ten years beyond 

the time of the act giving rise to the cause of action.

Defects are discovered when a person of ordinary intelligence and prudence learns that defects exist[]. A person 

does not have to discover the exact nature or source of the 

defect, but only that a defect exists.

However, if you find that Defendant fraudulently, inequitably and/or lulled Plaintiffs into inaction, then you 

must disregard Defendant’s defense of the statute of 

limitations.

Plaintiffs filed their action on February 15, 2017.

EFFECT OF FINDINGS

If Defendant has not met its burden of proof on this 

issue then your verdict must be for Plaintiffs and you 

must indicate your decision on Verdict Form 2.

If on the other hand, you find that Defendant has met 

its burden of proof on this issue, then your Verdict must 

be for Defendant and you must indicate your decision on 

Verdict Form 2.

Instruction No. 4 stated that damages should be figured as 

follows: “If you find that the defects can be remedied without 

materially injuring or reconstructing a substantial portion of the 

property, then Plaintiffs are entitled to recover the reasonable 

cost of remedying the defects.”

At the jury instruction conference, L&L had made the following objection to instruction No. 5: “The defendant objects 

and believes a date should be utilized.” It did not raise any 

other omission. L&L then stated, “We also believe that the 

discovery period was not alleged in the amended complaint.” 

L&L did not object to the specific language of instruction 

No. 5, stating that “[I]f you find the [D]efendant fraudulently, 

inequitably, and/or lulled Plaintiffs into inaction, then you must 

disregard Defendant’s defense of the statute of limitations.”
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L&L did not object that estoppel had not been pled. There 

is no evidence contained in the record on appeal that L&L 

proposed any alternative jury instruction or that L&L requested 

special verdict forms to separate out the different defenses to 

the statute of limitations or to separate out what aspects of the 

de Vrieses’ claims, which encompassed the house, the lot preparation, and the bluff, it found L&L liable for. L&L’s stated 

objections to instruction No. 5 were overruled.

8. Jury Verdict

In verdict form No. 2, the jury found in favor of the 

de Vrieses on L&L’s affirmative defense of the statute of limitations. On verdict form No. 1, the jury found in favor of the 

de Vrieses in their claims against L&L for breach of contract 

or breach of express warranties. In that form, the jury set 

forth damages in the amount of $418,175. The jury was not 

asked, through special verdict forms or otherwise, to separate 

liability relating to preparing the building site for the house to 

experience movement within standard tolerances from liability 

relating to the bluff failure. Likewise, the jury was not asked 

to separate the issue of the discovery period from the issue 

of equitable estoppel in determining whether the de Vrieses’ 

action was barred by the statute of limitations.

9. Posttrial Motions

L&L filed a motion for judgment notwithstanding the verdict, pursuant to Neb. Rev. Stat. § 25-1315.02 (Reissue 2016), 

to alter or amend the judgment under Neb. Rev. Stat. § 25-1329 

(Reissue 2016), and for new trial, pursuant to Neb. Rev. 

Stat. § 25-1142 (Reissue 2016). As pertinent to this appeal, 

the motion asserted the statute of limitations prohibited the 

de Vrieses’ recovery and, in the alternative, the judgment 

should be set off by the amount of the de Vrieses’ pretrial 

settlement with TD2 and should be further limited to the cost 

of repairs in the amount of $289,845. The motion did not 

specifically ask for a new trial on the basis of excessive damages or because of prejudicial jury instructions, and it did not 
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specifically assert that the issue of estoppel should not have 

been submitted to the jury because it was not pleaded.

(a) Statute of Limitations

At the hearing on the motion, L&L asserted, first, that 

the undisputed facts established the statute of limitations set 

forth in Neb. Rev. Stat. § 25-223 (Reissue 2016) prohibited 

the de Vrieses’ recovery. Specifically, L&L argued that the 

June 2015 Donan report put the de Vrieses on notice of their 

claim 5 months before the 3-year discovery period, such that 

the de Vrieses were not entitled to the statutory 2-year tolling 

period.

L&L also reiterated its objection regarding instruction No. 5 

and the absence therein of “a date . . . as to when that discovery should have taken place by.”

Finally, for the first time since its motion for summary judgment, L&L specifically raised at the hearing the fact that estoppel was not pled in the de Vrieses’ complaint. L&L argued the 

jury thus should not have been instructed on that theory. The 

de Vrieses responded that the issue had been tried by implicit 

consent, when L&L failed to object to testimony on that issue, 

and that the de Vrieses had offered to amend their complaint 

around the time of the jury instruction conference.

The court denied this aspect of the motion, reiterating its 

reasoning set forth in its order denying L&L’s motion for summary judgment and summarizing it was for the jury to decide 

when the de Vrieses reasonably should have discovered L&L’s 

breach. The court noted that the jury heard evidence of the 

Donan report and were presumed to have taken it into consideration. In its written order, the court stated as to the equitable 

estoppel defense, “this was not formally pled by Plaintiffs and 

therefore the jury was never instructed on equitable estoppel 

and the Court will not further address this issue.”

(b) Settlement Setoff

Second, L&L asked at the hearing that the jury verdict 

and judgment be reduced and amended so as to set off the 
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amount of the de Vrieses’ pretrial settlement with TD2. L&L 

asserted that there was a single injury to the house and that the 

de Vrieses received compensation in the settlement with TD2 

for that single injury. L&L did not introduce the settlement 

agreement into evidence or move to compel its production.

The court denied the request for setoff. The court noted that 

it did not know the amount of the settlement. Further, there 

was no evidence as to what claims the settlement encompassed. 

The de Vrieses had sought to recover against TD2 not only 

damages as to the residence, but also for the bluff. And they 

sought against TD2 the recovery of stigma damages related to 

the house, which the de Vrieses were not permitted to recover 

against L&L. Thus, concluded the court, “it would not be possible to determine what amount of the settlement proceeds 

from TD2 related to what alleged damage.”

(c) Unrecoverable Costs

In the alternative to its motions based on the statute of limitations and in addition to its alternative motion for setoff, L&L 

asked that the jury verdict and judgment be limited to the cost 

of repairs in an amount no more than $289,845. In making this 

argument, L&L relied on exhibit 271, offered into evidence 

by the de Vrieses and entered into evidence without objection. Exhibit 271 contained a bid by Carlson Projects, Inc., for 

the repair of various aspects of the house. The total estimate 

to complete that work was $289,845. One of the owners of 

Carlson Projects testified at trial that he did not determine what 

repairs were necessary, but relied on the recommendations 

made by Little.

L&L claimed that any other evidence of costs were unrecoverable litigation costs or were costs related to the drainage 

of the bluff. It believed, given the amount of damages, that 

the jury had implicitly found it was not liable for the bluff or 

drainage issues of the lot. Therefore, argued L&L, the amount 

of the damages the jury awarded was excessive.

The court rejected L&L’s premise that the only evidence 

at trial relating to the costs of repair was the Carlson Projects 
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estimate in the amount of $289,845. The court stated there 

was also evidence of repairs made by the de Vrieses separate 

from the Carlson Projects estimate, including installation of 

the drainage system and water diversion project, along with the 

engineering costs associated therewith.

10. Motion to Reconsider and to 

Produce Settlement Agreement

After the court denied L&L’s multifaceted postjudgment 

motion, L&L filed a motion to reconsider, require production, 

and supplement the record on its posttrial motions. L&L asked 

the court for an order requiring the de Vrieses to “immediately 

produce the Confidential Settlement Agreement to the Court 

and counsel for L&L.” After the de Vrieses produced the 

settlement agreement, L&L asked that the court supplement the 

record and admit the settlement into evidence as exhibit 472 

under seal. L&L requested that the court then review the settlement agreement and reconsider its order denying L&L’s prior 

motion to reduce and amend the jury verdict in light thereof.

The court denied the motion to produce and reconsider. It 

noted that L&L did not object to the dismissal of TD2 due to 

its settlement with the de Vrieses and that at no point before 

L&L’s latest motion had it pursued production of the settlement 

agreement. The court stated that L&L had the opportunity at 

the hearings on its prior motions to make a record and request 

production of the settlement agreement, but L&L failed to do 

so. In any case, reasoned the court, production of the settlement agreement would not resolve the issues already noted in 

the court’s order denying L&L’s motion to reduce and amend 

the jury verdict.

III. ASSIGNMENTS OF ERROR

L&L assigns that the district court erred in (1) entering judgment against it in the amount of $418,175, (2) determining the 

de Vrieses were not barred from recovery as a result of the 

statute of limitations set forth in § 25-223, (3) denying L&L’s 
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posttrial motions, (4) refusing to set off the judgment by the 

amount of the settlement agreement between the de Vrieses 

and TD2, (5) denying L&L’s motion to reconsider and refusing 

to require the de Vrieses to accept into evidence the settlement 

agreement between the de Vrieses and TD2, (6) determining that the judgment amount was not excessive and did not 

include nonrecoverable costs, and (7) giving its instructions to 

the jury on L&L’s statute of limitations defense.

On cross-appeal, the de Vrieses assign that the district court 

erred in (1) excluding the de Vrieses’ expert witness testimony, 

exhibit evidence, and argument, which would have supported 

causation and damages relating to the stigma remaining on 

the de Vrieses’ property after repairs are completed, and (2) 

preventing the de Vrieses from submitting the issue of stigma 

damages to the jury.

IV. STANDARD OF REVIEW

[1] When reviewing a jury verdict, the appellate court considers the evidence and resolves evidentiary conflicts in favor 

of the successful party. 1

[2] A jury verdict may not be set aside unless clearly wrong, 

and it is sufficient if there is competent evidence presented to 

the jury upon which it could find for the successful party. 2

[3] When the jury returns a general verdict for one party, 

we presume that the jury found for the successful party on all 

issues raised by that party and presented to the jury. 3

[4] The “general verdict” rule, which is also referred to 

as the “two issue” rule, is a policy rule which provides that 

where a general verdict is returned for one of the parties, 

and the mental processes of the jury are not tested by special 

1 Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

2 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 

N.W.2d 156 (2017)

3 Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).
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interrogatories to indicate which issue was determinative of 

the verdict, it will be presumed that all issues were resolved in 

favor of the prevailing party, and, where a single determinative 

issue has been presented to the jury free from error, any error 

in presenting another issue will be disregarded. 4

[5] One cannot silently tolerate error, gamble on a favorable 

result, and then complain that one guessed wrong. 5

[6] An appellate court will not consider an issue on appeal 

that was not presented to or passed upon by the trial court. 6

[7] A motion for reconsideration, which is considered nothing more than an invitation to the court to consider exercising 

its inherent power to vacate or modify its own judgment, is 

insufficient for purposes of asking a trial court to pass upon an 

issue in order to properly preserve it for appeal. 7

[8] The point at which a statute of limitations begins to run 

must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless 

clearly wrong. 8

[9] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as an 

admission of the truth of all competent evidence submitted on 

behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed 

is entitled to have every controverted fact resolved in its favor 

and to have the benefit of every inference which can reasonably be deduced from the evidence. 9

4 Kuhnel v. BNSF Railway Co., 20 Neb. App. 884, 834 N.W.2d 803 (2013), 

reversed on other grounds, 287 Neb. 541, 844 N.W.2d 251 (2014); Lahm 

v. Burlington Northern RR. Co., 6 Neb. App. 182, 571 N.W.2d 126 (1997).

5 Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001).

6 Id.

7 See id.

8 Manker v. Manker, 263 Neb. 944, 644 N.W.2d 522 (2002).

9 Jacobs Engr. Group v. ConAgra Foods, supra note 1.
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[10] Review of a ruling on a motion for judgment notwithstanding the verdict is de novo on the record. 10

[11] Whether a jury instruction is correct is a question of 

law, which an appellate court independently decides. 11

[12] Failure to object to jury instructions after they have 

been submitted to counsel for review or to offer more specific 

instructions if counsel feels the court-tendered instructions 

are not sufficiently specific precludes raising an objection 

on appeal. 12

[13] Jury instructions are subject to the harmless error rule, 

and an erroneous jury instruction requires reversal only if the 

error adversely affects the substantial rights of the complaining party. 13

[14] In an appeal based on a claim of an erroneous jury 

instruction, the appellant has the burden to show that the 

questioned instruction was prejudicial or otherwise adversely 

affected a substantial right of the appellant. 14

[15] Where jury instructions are claimed deficient on appeal 

and such issue was not raised at trial, an appellate court 

reviews for plain error. 15

[16] An appellate court reviews a denial of a motion to alter 

or amend the judgment for an abuse of discretion. 16

[17] On appeal, the fact finder’s determination of damages is 

given great deference. 17 The amount of damages to be awarded 

is a determination solely for the fact finder, and its action in 

10 Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856 

(2020).

11 City of Wahoo v. NIFCO Mech. Systems, 306 Neb. 203, 944 N.W.2d 757 

(2020).

12 See Wilkins v. Bergstrom, 17 Neb. App. 615, 767 N.W.2d 136 (2009); Neb. 

Ct. R. § 6-802.

13 Haffke v. Signal 88, 306 Neb. 625, 947 N.W.2d 103 (2020).

14 Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006).

15 Foundation One Bank v. Svoboda, 303 Neb. 624, 931 N.W.2d 431 (2019).

16 Jacobs Engr. Group v. ConAgra Foods, supra note 1.

17 Shipler v. General Motors Corp., supra note 14.
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this respect will not be disturbed on appeal if it is supported 

by evidence and bears a reasonable relationship to elements of 

damages proved. 18

[18] While the amount of damages presents a question of fact, 

the proper measure of damages presents a question of law. 19

[19] An award of damages may be set aside as excessive or 

inadequate when, and not unless, it is so excessive or inadequate as to be the result of passion, prejudice, mistake, or some 

other means not apparent in the record. 20

[20] Allocation of a settlement agreement is reviewed for an 

abuse of discretion. 21

V. ANALYSIS

In its appeal, L&L asserts that the de Vrieses’ action was 

barred by the statute of limitations as a matter of law and the 

district court erred in finding otherwise. In the event we uphold 

the jury’s determination that the de Vrieses’ claims were not 

barred as a matter of law by the statute of limitations, L&L 

contends we should find that the court erred in its jury instruction on the statute of limitations. In the event we disagree with 

L&L’s assertion that a new trial was warranted because the jury 

instruction on the statute of limitations was prejudicial, L&L 

asks that we find merit to its arguments that the court erred in 

refusing to reduce the amount of the damages awarded by the 

jury. The de Vrieses’ cross-appeal challenges the court’s exclusion of evidence pertaining to stigma damages.

1. Statute of Limitations

We first consider L&L’s arguments pertaining to the statute 

of limitations. In a verdict form on the statute of limitations, 

18 U.S. Pipeline v. Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d 460 

(2019).

19 Connelly v. City of Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).

20 Roth v. Wiese, 271 Neb. 750, 716 N.W.2d 419 (2006).

21 Strasburg v. Union Pacific RR. Co., 286 Neb. 743, 839 N.W.2d 273 

(2013).
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the jury rendered a verdict in favor of the de Vrieses, after 

being instructed on both tolling and estoppel. We cannot 

explain the district court’s statement in its order denying the 

posttrial motions that the jury was not instructed on estoppel. 

The record shows otherwise, and L&L’s arguments on appeal 

acknowledge this fact. Instruction No. 5 instructed the jury on 

estoppel by stating, after a description of the discovery period: 

“However, if you find that Defendant fraudulently, inequitably 

and/or lulled Plaintiffs into inaction, then you must disregard 

Defendant’s defense of the statute of limitations.”

L&L contends reasonable minds could only have drawn 

the conclusion that the de Vrieses should have discovered 

their cause of action such that they were not protected by the 

discovery period of the statute. L&L does not similarly argue 

reasonable minds could not differ as to whether L&L was 

estopped from asserting § 25-223(1) as a defense; instead, L&L 

asserts the question of estoppel should have been disposed of 

as a matter of law because the de Vrieses failed to plead it. 

Alternatively to these arguments that it was entitled to judgment as a matter of law, L&L asserts that it was prejudiced by 

the jury instruction on the statute of limitations and that the 

court should have granted its motion for a new trial.

The parties agree that the de Vrieses’ action was governed 

by the statute of limitations in § 25-223:

Any action to recover damages based on any alleged 

breach of warranty on improvements to real property or 

based on any alleged deficiency in the design, planning, 

supervision, or observation of construction, or construction of an improvement to real property shall be commenced within four years after any alleged act or omission constituting such breach of warranty or deficiency. 

If such cause of action is not discovered and could not 

be reasonably discovered within such four-year period, 

or within one year preceding the expiration of such fouryear period, then the cause of action may be commenced 

within two years from the date of such discovery or 
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from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no 

event may any action be commenced to recover damages 

for an alleged breach of warranty on improvements to real 

property or deficiency in the design, planning, supervision, or observation of construction, or construction of an 

improvement to real property more than ten years beyond 

the time of the act giving rise to the cause of action.

(Emphasis supplied.)

[21] Where the basis of the claim is improper workmanship 

resulting in defective construction, under either negligence 

or breach of the implied warranty to perform in a workmanlike manner, 22 the statute of limitations of § 25-223 runs from 

the date of substantial completion of the project, not the date 

of any specific act which resulted in the defect. 23 The parties 

agree that the home was substantially completed by November 

2012. The de Vrieses’ action was not brought until February 

15, 2017.

[22,23] Aside from discovery periods set forth by statute, 

we have recognized equitable estoppel may be successfully 

asserted to avoid the statute of limitations defense when one 

lulls his or her adversary into a false sense of security, thereby 

causing that person to subject his or her claim to the bar of the 

statute of limitations, and then pleads the very delay caused 

by his or her conduct as a defense to the action when it is 

filed. 24 Used in this way, estoppel does not extend the statute 

of limitations but prevents a party from pleading and utilizing 

22 See, McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 (2021); 

Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 N.W.2d 422 

(1992); Williams v. Kingery Constr. Co., 225 Neb. 235, 404 N.W.2d 32 

(1987).

23 See, McCaulley v. C L Enters., supra note 22; Adams v. Manchester Park, 

291 Neb. 978, 871 N.W.2d 215 (2015). See, also, Fuelberth v. Heartland 

Heating & Air Conditioning, 307 Neb. 1002, 951 N.W.2d 758 (2020); 

Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).

24 See Rauscher v. City of Lincoln, 269 Neb. 267, 691 N.W.2d 844 (2005).
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the statute as a bar—although a potential plaintiff must still act 

diligently to file the action within a reasonable time. 25

(a) Statute of Limitations as Matter of Law

[24] With respect to its challenges to the jury’s verdict on the 

statute of limitations as a matter of law, L&L raises the denial 

of its motions for summary judgment, directed verdict, and 

judgment notwithstanding the verdict. The denial of a motion 

for summary judgment is neither appealable nor reviewable. 26

A directed verdict is proper at the close of all the evidence only 

when reasonable minds cannot differ and can draw but one 

conclusion from the evidence, that is, when an issue should be 

decided as a matter of law. 27 A motion for judgment notwithstanding the verdict may be granted when the movant’s previous motion for directed verdict, made at the conclusion of all 

the evidence, should have been sustained. 28

In considering whether the court erred in denying judgment 

as a matter of law based on the statute of limitations, either a 

finding of protection under the discovery period of § 25-223 

or that L&L was estopped from relying on § 25-223 would 

be determinative of whether the de Vrieses’ action was time 

barred. Stated another way, for L&L to be entitled to judgment 

as a matter of law on the statute of limitations, it must have 

been determinable as a matter of law both that (1) the action 

was not brought within the discovery period of § 25-223 and 

(2) L&L was not estopped from relying on the statute of limitations; a factual dispute as to either question would prevent 

25 See, Reifschneider v. Nebraska Methodist Hosp., 233 Neb. 695, 447 

N.W.2d 622 (1989); 54 C.J.S., Limitations of Actions § 56 (2020).

26 See Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). See, also, e.g., 

State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 924 

N.W.2d 664 (2019).

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

(2020).

28 Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 298 Neb. 777, 906 

N.W.2d 1 (2018).
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judgment as a matter of law that the de Vrieses’ action was 

barred by the statute of limitations. And as we explain, the 

district court did not err when it failed to determine as a matter 

of law that the de Vrieses could not rely on estoppel to avoid 

L&L’s statute of limitations defense.

L&L argues the district court should have determined the 

de Vrieses could not rely on estoppel to avoid L&L’s statute of 

limitations defense because estoppel was “a defense . . . that 

had not been pled.” 29 As support for the contention that estoppel must be formally pled before a plaintiff can rely on the 

doctrine to avoid a statute of limitations defense, L&L relies 

on the Nebraska Court of Appeals opinion in Gard v. City of 

Omaha.

 30 As we explain, L&L reads Gard too broadly.

In Gard, the Court of Appeals recited the general principle 

that estoppel is an affirmative defense which must be raised 

in the pleadings, 31 and it then suggested the same rule should 

apply when estoppel is asserted “in avoidance of the statute of 

limitations rather than as an affirmative defense.” 32 But Gard

also cited to settled case law from this court holding that a 

“party entitled to estoppel need not in all cases formally plead 

estoppel [and] if facts constituting estoppel are in any way 

sufficiently pleaded, party is entitled to benefit of law arising therefrom.” 33 After reciting these principles, the Court of 

Appeals in Gard reasoned that even if the plaintiffs had sufficiently pled facts constituting estoppel, the evidence did not 

support the doctrine because there was no evidence that the 

29 Brief of appellant at 28.

30 Gard v. City of Omaha, 18 Neb. App. 504, 786 N.W.2d 688 (2010).

31 See, generally, Neb. Ct. R. Pldg. § 6-1108(c) (including estoppel among 

nonexclusive list of affirmative defenses which must be set forth affirm

atively in responsive pleading).

32 Gard, supra note 30, 18 Neb. App. at 511, 786 N.W.2d at 695.

33 Id., citing Greer v. Chelewski, 162 Neb. 450, 76 N.W.2d 438 (1956). 

Accord U. S. Tire Dealers Mutual Corporation v. Laune, 139 Neb. 26, 296 

N.W. 333 (1941).
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defendant lulled the plaintiffs into a false sense of security 

that caused plaintiffs to delay in filing their claim. Contrary to 

L&L’s assertion, Gard did not announce a new rule that plaintiffs must formally plead estoppel before they can raise the 

doctrine in response to a defendant’s affirmative defense.

[25] Instead, it remains the rule in Nebraska that when estoppel is raised as an affirmative defense to a claim for relief, it 

must be affirmatively set forth in the party’s responsive pleading. 34 But when a plaintiff raises estoppel to avoid or rebut an 

affirmative defense that has been alleged in a responsive pleading, evidence of estoppel is generally admissible without being 

formally pled. 35

These differing pleading requirements are consistent with 

Nebraska’s pleading rules, which no longer require a reply to 

an answer unless ordered by the court 36 and which provide 

instead that “[a]verments in a pleading to which no responsive 

pleading is required or permitted shall be taken as denied or 

avoided.” 37 Nevertheless, we encourage courts to utilize the 

pretrial conference to identify the issues to be tried and to set 

out those issues in a pretrial order, which can cure any question 

of whether a defense was raised. 38

On this record, there is no merit to L&L’s contention that the 

de Vrieses were required to formally plead estoppel in avoidance of the affirmative defense raised by L&L. The district 

court did not err in failing to determine as a matter of law that 

the de Vrieses could not rely on estoppel to avoid L&L’s statute 

of limitations defense.

34 See Neb. Ct. R. Pldg. § 6-1108(c).

35 See Greer, supra note 33. Accord, Fluckey v. Anderson, 132 Neb. 664, 669, 

273 N.W. 41, 43 (1937) (“‘[e]vidence of estoppel is admissible without 

being pleaded in order to rebut evidence introduced by the opposite 

party’”).

36 See Neb. Ct. R. Pldg. § 6-1107(a).

37 Neb. Ct. R. Pldg. § 6-1108(d).

38 See Jill B. & Travis B. v. State, 297 Neb. 57, 899 N.W.2d 241 (2017).
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(b) Jury Instructions on Statute of Limitations

[26-29] We turn to L&L’s alternative argument that it was 

prejudiced by the jury instruction on the statute of limitations 

such that the district court should have granted its motion 

for a new trial. In doing so, we apply the following general 

principles. Directly quoting an applicable statute is a permissible form of jury instruction. 39 And where a general charge 

fairly presents the case to the jury, it is not error for the trial 

court, in the absence of a request for a more specific instruction, to fail to give a more elaborate one. 40 To establish 

reversible error from a court’s failure to give a requested jury 

instruction, an appellant has the burden to show that (1) the 

tendered instruction is a correct statement of the law, (2) the 

tendered instruction was warranted by the evidence, and (3) 

the appellant was prejudiced by the court’s failure to give the 

requested instruction. 41 If the instructions given, which are 

taken as a whole, correctly state the law, are not misleading, 

and adequately cover the issues submissible to a jury, there 

is no prejudicial error concerning the instructions and necessitating a reversal. 42 Failure to object to jury instructions after 

they have been submitted to counsel for review or to offer 

more specific instructions if counsel feels the court-tendered 

instructions are not sufficiently specific, precludes raising an 

objection on appeal. 43

We find that the general verdict rule applies to L&L’s challenge to the jury instruction on the statute of limitations. Any 

error in the jury instruction on the discovery period will be 

disregarded if the instruction on estoppel was presented to the 

jury free from error, and vice versa. When the jury returns 

a general verdict for one party, we presume that the jury 

39 See State v. Reichstein, 233 Neb. 715, 447 N.W.2d 635 (1989).

40 Smith v. Wrehe, 199 Neb. 753, 261 N.W.2d 620 (1978).

41 VKGS v. Planet Bingo, 309 Neb. 950, 962 N.W.2d 909 (2021).

42 Id.

43 Wilkins v. Bergstrom, supra note 12. See Neb. Ct. R. § 6-802.
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found for the successful party on all issues raised by that party 

and presented to the jury. 44 Under the “general verdict” rule, 

where a general verdict is returned for one of the parties, and 

the mental processes of the jury are not tested by special interrogatories to indicate which issue was determinative of the 

verdict, it will be presumed that all issues were resolved in 

favor of the prevailing party, and, where a single determinative 

issue has been presented to the jury free from error, any error 

in presenting another issue will be disregarded. 45 While the 

jury was presented with a special verdict form on the statute 

of limitations, that form did not separate the issue of the discovery period from the issue of equitable estoppel. We must 

therefore presume the jury found in favor of the de Vrieses on 

both issues, either of which would independently support its 

finding that the de Vrieses’ action was not barred by the statute 

of limitations.

Nevertheless, we will briefly address both arguments challenging the instruction on the statute of limitations. We find 

neither has merit.

L&L’s first argument is that it was prejudicial error for the 

court to refuse to instruct the jury on the dates the discovery 

period began to run and on the relevant dates defining the 

period of discovery. L&L’s only objection to the district court’s 

refusal, pertaining to the current argument based on the failure 

to specify dates, was as follows: “The defendant objects and 

believes a date should be utilized.” The record fails to reflect 

that L&L elaborated at the jury instruction conference upon 

what that date should be. There is no evidence in the record 

that L&L tendered any alternative jury instruction. L&L’s 

vague objection that the instruction should include “a date” 

failed to preserve the alleged error that the instruction was 

44 Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).

45 Lahm v. Burlington Northern RR. Co., supra note 4. See, also, First Nat. 

Bank North Platte v. Cardenas, 299 Neb. 497, 909 N.W.2d 79 (2018); 

Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018); Golnick v. 

Callender, supra note 3.
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insufficiently specific. And the general charge on the discovery period correctly stated the law, was not misleading, and 

adequately covered the issues submissible to a jury.

[30,31] L&L’s second assertion is that it was prejudicial error 

to instruct the jury on estoppel because it was not pleaded. We 

have already determined this argument lacks merit. We also 

observe that L&L did not object below to the instruction on 

estoppel. Instead, L&L stated, “We also believe that the discovery period was not alleged in the amended complaint.” 

Discovery periods and equitable estoppel involve two different doctrines. 46 Equitable estoppel is not based upon the construction of a statute of limitations, but on the common law. 47

Further, when a reasonable person should have discovered with 

due diligence a cause of action for purposes of a statutory discovery period requires no fault on the part of the defendant. 48

Equitable estoppel, in contrast, requires fault on the part of the 

defendant. 49 Stated another way, discovery periods focus on the 

plaintiff’s knowledge, whereas equitable estoppel focuses on 

the defendant’s conduct.

We make no comment on the adequacy of the wording of 

the estoppel instruction used here, as that has not been raised 

on appeal. We disagree with L&L’s contention that the district 

court erred in its instruction on the statute of limitations such 

that L&L is entitled to a new trial.

2. No Settlement Setoff

The remaining issues raised by L&L on appeal concern 

damages. L&L’s first argument in this regard is that the district court erred when it failed to set off from the jury verdict 

46 See, e.g., Reifschneider v. Nebraska Methodist Hosp., supra note 25; 

Muller v. Thaut, 230 Neb. 244, 430 N.W.2d 884 (1988).

47 See, Muller v. Thaut, supra note 46. See, also, In re Estate of Fuchs, 297 

Neb. 667, 900 N.W.2d 896 (2017).

48 See In re Estate of Fuchs, supra note 47.

49 See id.
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the amount of the de Vrieses’ settlement with TD2 and that it 

erred in denying L&L’s motions, after the court’s ruling denying setoff, to compel and reconsider.

L&L sought a pro tanto setoff relying on the general proposition that where several claims are asserted against several 

parties for redress of the same injury, only one satisfaction can 

be had. 50 Under this principle, the defendant is not entitled to a 

setoff to the extent settlement is reached for an injury or damages the remaining defendant or defendants in the action are 

not found liable. 51 We do not understand L&L to have asserted 

a right to a setoff under any other legal theory, and we limit our 

analysis accordingly.

[32] The party who pleads a setoff bears the burden of proving it. 52 Typically, at the hearing on the motion, the movant 

for a setoff introduces into evidence the settlement at issue. 53

While the settlement with the dismissed party may be in the 

hands of the plaintiff, the plaintiff is not required to volunteer 

it at the hearing on the defendant’s motion; instead, the defend

ant has the burden to request its production.

L&L did not present the court with evidence of the settlement between TD2 and did not request its production at the 

hearing on the motion for setoff. While L&L argues its hands 

were tied because of the court’s pretrial order prohibiting L&L 

from presenting to the jury the fact that TD2 was initially a 

defendant to the action, L&L does not specifically assign that 

order as error. Moreover, that order restricted presentation 

of evidence to the jury. It did not prevent L&L from seeking 

production of the settlement agreement and introducing it for 

the court’s consideration at the bench hearing on its motion 

for setoff.

50 See, Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637 

(2000); Vowers & Sons, Inc. v. Strasheim, 254 Neb. 506, 576 N.W.2d 817 

(1998).

51 See id. See, also, Strasburg v. Union Pacific RR. Co., supra note 21.

52 Davis Erection Co. v. Jorgensen, 248 Neb. 297, 534 N.W.2d 746 (1995).

53 See, e.g., Strasburg v. Union Pacific RR. Co., supra note 21.
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In denying the motion for setoff, the court reasoned that, as 

a result of the settlement agreement not being produced, it did 

not know the amount of the settlement or what claims or damages the settlement encompassed. The court explained that the 

de Vrieses had sought to recover against TD2 not only damages as to the residence, but also for the bluff, and further, that 

the de Vrieses had sought to recover stigma damages related 

to the house, which they were not allowed to recover from 

L&L. Thus, concluded the court, “it would not be possible to 

determine what amount of the settlement proceeds from TD2 

related to what alleged damage.” We agree that the court could 

not determine the extent to which the settlement compensated 

the de Vrieses for the same injury and damage, if at all. The 

district court did not abuse its discretion in denying the motion 

for setoff.

We review the denial of a motion to reconsider for an abuse 

of discretion. A court’s order on a motion to compel is likewise 

reviewed for an abuse of discretion. 54 As the district court 

pointed out, L&L’s motion to compel, following the court’s ruling on the motion for setoff, was untimely. A motion for reconsideration, which is considered nothing more than an invitation 

to the court to consider exercising its inherent power to vacate 

or modify its own judgment, is insufficient for purposes of 

asking a trial court to pass upon an issue in order to properly 

preserve it for appeal. 55 We find no abuse of discretion in the 

court’s decision to overrule the motion to compel as untimely 

and in denying L&L’s motion to reconsider the court’s ruling 

on the motion for setoff.

3. Excessive Damages Beyond Costs to Repair

L&L’s remaining challenge to the amount of the damages 

concerns the court’s denial of what was, in essence, a motion 

for remittitur, made as part of L&L’s motion to alter or amend. 

54 See Thynne v. City of Omaha, 217 Neb. 654, 351 N.W.2d 54 (1984).

55 See Maxwell v. Montey, supra note 5.
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L&L asserts that the jury awarded a sum that exceeded the 

amount proved by competent evidence. An appellate court 

reviews a denial of a motion to alter or amend the judgment for 

an abuse of discretion. 56

[33-35] 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 as opposed to uncertain, speculative 

recovery. 57 Where a verdict is excessive, but not so much as to 

indicate passion or prejudice on the part of the jury, the error 

may be corrected by remittitur, if the excess can be estimated 

with reasonable certainty. 58 An appellate court should order 

remittitur only when the award is contrary to all reason. 59 And 

if there is no method by which a court can rationally ascertain 

the extent of the excess of a verdict, a remittitur cannot be 

required, for the reason that under such circumstances, a remittitur is nothing more than a substitution of the judgment of the 

court for that of the fact finder. 60

L&L calculates that the damages award should have been 

reduced to $289,845, a sum derived from a contractor’s estimate to make the repairs to the house that were recommended 

by the geotechnical engineers hired by the de Vrieses to determine the necessary course of action to remedy the defects. 

L&L asserts the jury, in awarding $418,175, must have relied 

on amounts attributable to the work of geotechnical engineers 

who were later secured by the de Vrieses as expert witnesses. 

And L&L asserts that all of the work of the geotechnical 

engineers, who later testified at trial on the de Vrieses’ behalf, 

constituted nonrecoverable litigation costs. While indisputably 

56 Jacobs Engr. Group v. ConAgra Foods, supra note 1.

57 See, id.; Roth v. Wiese, supra note 20.

58 Jacobs Engr. Group v. ConAgra Foods, supra note 1.

59 Id.

60 Nelson-Holst v. Iverson, 239 Neb. 911, 479 N.W.2d 759 (1992).
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there was ample other evidence concerning the costs to cure 

the failing bluff and to provide proper drainage of the lot, 

supporting the amount of the damages awarded, L&L urges 

our court to discount this evidence based on L&L’s conjecture 

that the jury found it was not liable for the bluff or the lot. 

L&L surmises the jury found it liable only for damages to the 

house itself.

[36] We find no error in the court’s denial of L&L’s motion 

for remittitur. Much of the testimony and exhibits supporting 

the amount of the jury’s award was not objected to, and the 

court did not err in overruling L&L’s objections to investigation costs associated with identifying the sources of the problems with the house and how to fix them. Amounts expended 

to investigate the extent of a defect and determine the proper 

course of remediation are recoverable damages, not litigation 

costs. 61 We decline L&L’s invitation to speculate, based on the 

amount of the award, that the jury reasoned L&L was not liable 

for any remedial measures or repair costs concerning the bluff 

or lot drainage. Our mandate in light of the general liability 

verdict form presented to the jury is to presume the jury found 

for the de Vrieses on all issues raised and presented to the 

jury. 62 To do otherwise would be to improperly speculate as to 

the jury’s deliberation. 63 There are no grounds presented in this 

appeal justifying reversal of the jury’s award of damages.

4. Cross-Appeal

Having found no merit to L&L’s appeal, we turn to the 

de Vrieses’ cross-appeal. The de Vrieses assert that the district 

court erred in excluding expert testimony on stigma damages 

and preventing them from submitting the issue of stigma damages to the jury with respect to damages for the defective construction of the house.

61 See Stearman v. Centex Homes, 78 Cal. App. 4th 611, 92 Cal. Rptr. 2d 761 

(2000).

62 See Golnick v. Callender, supra note 3.

63 See VKGS v. Planet Bingo, supra note 41.
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[37,38] Under Neb. Rev. Stat. § 25-1146 (Reissue 2016), 

“[w]henever damages are recoverable, the plaintiff may claim 

and recover any rate of damages to which he may be entitled 

for the cause of action established.” In connection with damages for a breach of warranty concerning building construction or injury to a building or other structure, we have noted 

with approval the general principle that the “‘basic goal of the 

court is compensation—that is, to award such an amount of 

money as will restore the injured party to the same property 

status which he occupied immediately prior to the injury.’” 64

Further, because “‘[t]he facts vary from case to case,’” 65

“‘[a] rule of damages which produces compensation in one 

case may be overcompensation (or undercompensation) in 

another case.’” 66

[39] In “L” Investments, Ltd. v. Lynch,

 67 we said that the 

proper measure of damages for injury to an improvement 

upon real estate that can be repaired is, in addition to any 

other consequential damages the injured party may establish 

by proper proof, the reasonable cost of repairing the property 

in like kind and quality if: (1) the improvement upon realty is 

damaged without damage to the realty itself, (2) the nature of 

the thing damaged is such that it is capable of being repaired 

or restored, (3) the cost of doing so is capable of reasonable 

ascertainment, and (4) the cost of repair or restoration does 

not exceed the market value of the property just before the 

injury. On this last factor, we elaborated that “one ought not 

to be able to recover a greater amount for partial destruction 

than one could recover for total destruction”; thus, “[i]f, in 

fact, the cost of repair or restoration exceeds the market value 

of the property just before the injury, then the proper measure 

64 “L” Investments, Ltd. v. Lynch, 212 Neb. 319, 323-24, 322 N.W.2d 651, 

654 (1982), quoting 22 Am. Jur. 2d Damages § 138 (1965).

65 Id. at 324, 322 N.W.2d at 654.

66 Id. at 324, 322 N.W.2d at 654-55.

67 “L” Investments, Ltd. v. Lynch, supra note 64.
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of damages is the market value of the property just before the 

damages were incurred, less any salvage.” 68

But we specifically rejected in “L” Investments, Ltd., any 

rule that would limit damages for the costs of repairs to those 

that do not exceed the diminution of value of property, disapproving of prior law stating otherwise. We explained that, for 

example, when someone damages some windows of an old 

warehouse, it may suffer no diminished value in relation to its 

total value and it may still be capable of fulfilling its intended 

function; nevertheless, the owner is entitled to demand that the 

wrongdoer repair the broken windows. 69 The owner is entitled 

to have the building without broken windows even though the 

total value of the property remains unchanged. 70

In Jones v. Elliott,

 71 another case involving real property,

we explained that there is no conflict between the rule that the 

damage to which the owner is entitled to recover is the expense 

of making the work conform to contractual requirements and 

the rule that if the defects cannot be remedied without reconstruction of or material injury to a substantial portion of the 

building, the measure of damages is the difference between its 

value when constructed and what its value would have been if 

built according to contract. “‘Each rule is enforceable under 

any state of facts to which it applies.’” 72 The damages affirmed 

in Jones consisted of certain aspects of the structure and equipment; lost profits; and, since attempting to repair footings and 

foundations could have “disasterous results,” 73 any diminished 

market value as a result of faulty construction of the footings 

and foundations.

68 Id. at 328, 322 N.W.2d at 656.

69 See “L” Investments, Ltd. v. Lynch, supra note 64.

70 See id.

71 Jones v. Elliott, 172 Neb. 96, 108 N.W.2d 742 (1961).

72 Id. at 107, 108 N.W.2d at 748.

73 Id. at 108, 108 N.W.2d at 749.
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We agree with the de Vrieses that in the context of real 

property there may be circumstances where, because all physical defects cannot be fully repaired or replaced, the total award 

of damages will consist of both repair costs and diminution in 

value—as long as the total sum does not exceed the value of 

the real estate before the injury. But at issue here is the exclusion of expert testimony of diminished market value under the 

hypothetical that the repairs for which the de Vrieses sought 

compensation would fully repair all physical defects to the 

house. The offer of proof as to the expert witness’ testimony 

did not specify that there was any remaining physical defect 

upon which the diminishment of value was based, and the 

court, in making its ruling, understood the question of stigma 

damages to be premised on reputation despite the absence of 

any lingering physical defect. The de Vrieses did not contest that was the issue presented and decided in the motion 

in limine.

The idea of stigma damages refers to a reduction in market 

value caused by a public’s fear and is traditionally described as 

the diminishment in market value based on public perception 

or reputation in the absence of any permanent physical harm. 74

Stigma damages have been criticized for their dependence 

upon inaccurate or unreasonable perceptions that can change 

at any time. 75 Many courts have thus adopted a rule that only 

allows recovery for the public’s perception of the risk associated with the real property when the repairs or remediation 

fail to fully eliminate the physical defects and some ongoing 

74 See, Muncie v. Wiesemann, 548 S.W.3d 877 (Ky. 2018); Houston Unlimited 

v. Mel Acres Ranch, 443 S.W.3d 820 (Tex. 2014); Pflanz v. Foster, 888 

N.E.2d 756 (Ind. 2008); Walker Drug Co., Inc. v. La Sal Oil Co., 972 P.2d 

1238 (Utah 1998).

75 See Jennifer L. Young, Stigma Damages: Defining the Appropriate 

Balance Between Full Compensation and Reasonable Certainty, 52 S.C. 

L. Rev. 409 (2001).
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310 Nebraska Reports

DE VRIES v. L & L CUSTOM BUILDERS

Cite as 310 Neb. 543

risk actually continues to exist. 76 They do not allow damages 

based on “pure . . . stigma.” 77 Indeed, in circumstances where 

there is a residual physical defect, the resultant diminishment 

in market value arguably would not be accurately described as 

due to stigma at all.

[40] We agree that public perceptions of a defect when the 

evidence demonstrates there is none is an improper basis for 

recovery. In such scenarios, the longer the property demonstrates no lingering effects from the defects remedied, the more 

public perception will improve. The diminishment in value due 

to the stigma is thus ever changing. Damages related to such 

changing perceptions is inherently speculative and without reasonable certainty.

Based on the proffered expert testimony, the district court 

did not err in granting L&L’s motion in limine excluding the 

presentation of evidence of stigma damages to the jury.

VI. CONCLUSION

The district court did not err in refusing to determine the 

statute of limitations as a matter of law, in giving its instructions on the statute of limitations, or in failing to order remittitur or setoff of the damages award. The district court also did 

not err in excluding evidence of stigma damages. We affirm 

the judgment.

Affirmed.

Miller-Lerman, J., not participating.

76 See, e.g., In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717 (3d Cir. 

1994); Berry v. Armstrong Rubber Co., 989 F.2d 822 (5th Cir. 1993); Rudd 

v. Electrolux Corp., 982 F. Supp. 355 (M.D.N.C. 1997); Ramirez v. Akzo 

Nobel Coatings, Inc., 153 Ohio App. 3d 115, 791 N.E.2d 1031 (2003); 

Santa Fe Partnership v. ARCO Products Co., 46 Cal. App. 4th 967, 54 

Cal. Rptr. 2d 214 (1996); Adkins v. Thomas Solvent Co., 440 Mich. 293, 

487 N.W.2d 715 (1992).

77 See Ramirez v. Akzo Nobel Coatings, Inc., supra note 76, 153 Ohio App. 

3d at 119, 791 N.E.2d at 1034.