- 1 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

Charles Bridwell and Sylvia Bridwell, hu

and wife, appellees, v. Brett Wa

and Gary Walton, doing busin

Walton Contracting, appe

___ N.W.2d ___

Filed March 12, 2019. No. A-17-1011.

1. Pleadings: Appeal and Error. Permission to amend a pleading is 

addressed to the discretion of the trial court, and an appellate court will 

not disturb the trial court’s decision absent an abuse of discretion.

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

aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party.

3. Motions for New Trial: Appeal and Error. A motion for new trial is 

addressed to the discretion of the trial court, whose decision will be 

upheld in the absence of an abuse of that discretion.

4. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

5. Pleadings: Damages: Waiver. Failure to mitigate damages is an affirm

ative defense which must be pled or it is waived.

6. Motions to Dismiss: Directed Verdict. A motion to dismiss for failure to prove a prima facie case should be treated as a motion for a 

directed verdict.

7. Directed Verdict: Waiver: Appeal and Error. A defendant who moves 

for a directed verdict at the close of the plaintiff’s evidence and, 

upon the overruling of such motion, proceeds with trial and introduces evidence waives any error in the ruling on the motion for a 

directed verdict.

8. Appeal and Error. A trial court cannot err in failing to decide an issue 

not raised, and an appellate court will not consider an issue for the first 

time on appeal.

Nebraska Supreme Court Online Library

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

03/19/2019 09:06 AM CDT
- 2 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

9. Verdicts: Appeal and Error. Passion or prejudice is shown when the 

verdict shocks the conscience.

10. Damages: Remittitur. Generally, where the damages awarded are 

greater than the amount claimed in the declaration, or, from the facts 

disclosed by the evidence, are clearly excessive, and the illegal portion 

is distinguishable from the legal, the defect may usually be remedied by 

a remittitur of the excess.

11. Jurors: Verdicts. A quotient verdict is one in which the jurors, for the 

purpose of arriving at a verdict, agree that each should write on his or 

her ballot a sum representing his or her judgment, that the aggregate 

should be divided by the number of jurors, and that the jurors will be 

bound by the quotient as their verdict.

12. ____: ____. It is the agreement by the jurors to be bound by the quotient 

which creates the invalidity of quotient verdicts; the process of arriving 

at a quotient is valid so long as there is no prior agreement to be bound 

by the result.

Appeal from the District Court for Nuckolls County: Vic

L. Johnson, Judge. Affirm

Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., for 

appellants.

Benjamin H. Murray, of Murray Law, P.C., L.L.O., for 

appellees.

Pirtle, Bishop, and Arterburn, Jud

Pirtle, Judge

INTRODUCTION

Brett Walton and Gary Walton, doing business as Walton 

Contracting (collectively appellants), appeal from a jury verdict entered in Nuckolls County District Court in favor of 

Charles Bridwell and Sylvia Bridwell (collectively appellees) 

for breach of contract regarding appellants’ construction of an 

addition to appellees’ home. Appellants also appeal the jury 

verdict rejecting their counterclaim for unpaid work. Appellants 

allege that the district court erred in denying their motion to 

amend pleadings, in failing to dismiss the case for failure to 
- 3 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

demonstrate the standard of workmanlike manner, and in denying their motion for new trial and remittitur on the basis of an 

excessive and unsupported jury verdict. For the reasons that 

follow, we affirm.

BACKGROUND

Appellees own a home in Superior, Nebraska. In 2013, they 

decided to have an addition to the home constructed. To this 

end, they contacted appellants in order to get an estimate of 

what such an addition would cost. Gary came to the home and 

examined the work to be done, including removal of the existing garage and construction of the new addition. Gary later 

provided a bid to appellees in the amount of $32,182.21 for 

labor and materials, which bid appellees accepted.

The work began in late September 2013 and included the 

removal of the existing garage and excavation and grading of 

some of the yard. The foundation was laid in October, along 

with the framing and the roof. Installation of windows and 

doors, as well as additional framing took place in November. 

In December, appellees met with Gary and Brett to expand the 

contract to cover finishing the interior of the addition, bringing the total bid to $63,207.46. Sheetrock was installed on the 

interior from December through March 2014.

Charles had noticed and pointed out to appellants what he 

believed to be defects over the course of construction, including problems with the concrete, size of the crawlspace, windows, size of the doors, the way sheetrock was hung, a dip 

in the roof, and the way the roof was completed. Appellees 

provided a “punch list” to appellants in March 2014 listing the 

various issues they had with the project, which list was signed 

by both parties. Throughout March and April, work continued 

on the addition. Work was stopped during the month of May 

because appellees were out of state. On June 3, appellants 

returned to work and Charles had a conversation with Gary. 

While the parties dispute what was said during that conversation, it is undisputed that following the conversation, appellants 
- 4 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

packed up their tools and left the worksite. Appellees had paid 

appellants $50,400 of the $63,207.46 total contract amount 

over the course of the construction.

Appellees brought the present action for breach of contract 

based on the failure to construct the addition in a workmanlike 

manner, and appellants filed an answer and counterclaim for 

unpaid work. A jury trial took place from April 25 to 27, 2017, 

at the conclusion of which the jury returned a verdict in favor 

of appellees in the amount of $40,000. The jury also found in 

favor of appellees on appellants’ counterclaim. Appellants subsequently filed a motion for new trial and a motion for remittitur, which the district court denied.

ASSIGNMENTS OF ERROR

Appellants assign the district court erred in (1) denying their 

motion to amend the pleadings to conform to the evidence, (2) 

failing to dismiss the case for failure to demonstrate the standard of workmanlike manner, and (3) denying their motions 

for new trial and remittitur on the basis that the jury’s verdict 

was excessive and unsupported.

STANDARD OF REVIEW

[1] Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb 

the trial court’s decision absent an abuse of discretion. United 

Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 

196 (2015).

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

and it is sufficient if any competent evidence is presented to 

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

Smith v. Colorado Organ Recovery Sys., 269 Neb. 578, 694 

N.W.2d 610 (2005).

[3] A motion for new trial is addressed to the discretion of 

the trial court, whose decision will be upheld in the absence of 

an abuse of that discretion. Id.
- 5 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

ANALYSIS

Motion to Amend Pleadings 

to Conform to Evidence.

Appellants made a motion to amend the pleadings to conform to the evidence in order to include an affirmative defense 

of failure to mitigate damages on the basis that the issue of 

mold and water damage had not been pled, but had been 

implicitly tried. At trial, it was revealed, based upon photographs of the property, that water was infiltrating the structure. 

On cross-examination, appellants asked Charles what materials 

would be required to complete the project, assuming construction had been acceptable to the point appellants left the job, 

to which he responded that he was not sure, as there could be 

mold in the walls. Appellants did not object to this mention 

of mold and then further pressed Charles, asking about water 

damage inside and outside the walls and whether he had done 

anything about it.

The next mention of mold was from the testimony of an 

independent contractor, Randy Schultz. Schultz is a cousin of 

Charles, but was called by appellants to provide his estimate 

for completing the project. On cross-examination, Schultz was 

asked if his estimate would change if water had infiltrated 

behind the walls. It was at this point that appellants objected 

to the testimony of water infiltration. The objection was overruled. Schultz stated that if water had infiltrated behind the 

walls, his opinion would change because that damage, and 

the possibility of issues with mold, would require that the 

whole addition be demolished. On redirect, appellants questioned Schultz regarding his experience in mold remediation, 

which he had none, and whether he had performed testing on 

the walls for mold, which he had not. Appellants raised their 

motion to amend the pleadings to conform to the evidence after 

this testimony. The district court rejected this motion, finding 

that “this is not a Motion to Amend to conform to the evidence,” but, rather, “a motion to raise an affirmative defense” 

and that the defense had been waived.
- 6 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

[4] As a preliminary matter, appellants argue in their brief 

that the testimony by Schultz regarding water infiltration and 

testimony regarding potential mold was speculative and prejudicial and that thus, the district court erred in allowing this evidence in over objection. However, appellants did not specifically assign this alleged error. To be considered by an appellate 

court, an alleged error must be both specifically assigned and 

specifically argued in the brief of the party asserting the error. 

Chafin v. Wisconsin Province Society of Jesus, 301 Neb. 94, 

917 N.W.2d 821 (2018). As such, we will not consider this 

issue of Schultz’ testimony.

[5] Regarding the motion to amend the pleadings, failure 

to mitigate damages is an affirmative defense which must be 

pled or it is waived. See Maricle v. Spiegel, 213 Neb. 223, 329 

N.W.2d 80 (1983). Because appellants did not plead failure 

to mitigate damages, they have waived the defense. See Neb. 

Ct. R. Pldg. § 6-1108(c) (parties shall “set forth affirmatively” 

their affirmative defenses). See, also, Estermann v. Bose, 296 

Neb. 228, 892 N.W.2d 857 (2017) (because Nebraska’s pleading rules are modeled after federal rules, Nebraska looks to 

federal decisions for guidance); 61A Am. Jur. 2d Pleading 

§ 322 (2018) (as general principle under Fed. R. Civ. P. 

8(c), affirmative defenses must be pled specifically in first 

responsive pleading or it is deemed waived). While appellants 

allege that the defense was brought out through testimony, 

we concur with the district court that there was not sufficient 

evidence adduced at trial to justify amending the pleadings 

to conform to the evidence. There was nothing in the pleadings regarding mold or water infiltration, and no damages 

were requested based on water infiltration or remediation of 

mold. The initial mention of mold was made during appellants’ cross-examination of Charles, to which appellants did 

not object or make a motion to strike, followed by additional 

questions on water infiltration. Therefore, we find no merit to 

this assigned error.
- 7 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

Failure to Dismiss Due to Lack of 

Evidence of Workmanlike Manner.

Appellants allege that appellees failed to demonstrate what 

the standard of workmanlike manner was and, thus, could not 

prove that appellants’ work fell below that standard, requiring 

the district court to dismiss the case. At trial, appellants made 

a motion to dismiss at the end of appellees’ evidence based on 

an alleged failure to demonstrate the standard of workmanlike 

manner. The motion was denied.

[6,7] Nebraska has uniformly held that a motion to dismiss 

for failure to prove a prima facie case should be treated as 

a motion for a directed verdict. Palmtag v. Gartner Constr. 

Co., 245 Neb. 405, 513 N.W.2d 495 (1994). A defendant who 

moves for a directed verdict at the close of the plaintiff’s 

evidence and, upon the overruling of such motion, proceeds 

with trial and introduces evidence waives any error in the 

ruling on the motion for a directed verdict. Id. Because appellants proceeded to adduce further evidence after the district 

court overruled the motion, they have waived any error as to 

that motion.

[8] In addition, appellants failed to renew their motion for 

directed verdict at the close of all evidence, raising again the 

issue of appellees’ failing to meet their burden of proof. The 

motion for new trial did not raise the issue either. A trial court 

cannot err in failing to decide an issue not raised, and we will 

not consider an issue for the first time on appeal. Vande Guchte 

v. Kort, 13 Neb. App. 875, 703 N.W.2d 611 (2005). As such, 

this assigned error fails.

Jury Award and Motions for 

New Trial and Remittitur.

Appellants’ third, fourth, and fifth assignments of error, that 

the jury’s award was excessive and unsupported, are consolidated and addressed together. These issues were raised within 

the motions for new trial and remittitur.
- 8 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

[9] Appellants’ first challenge is that the verdict was given 

under the influence of passion or prejudice, in violation of 

Neb. Rev. Stat. § 25-1142(4) (Reissue 2016). This is primarily couched around two arguments: first, that the verdict was 

based on the premise that the entire addition needed to be 

demolished, and second, that the possibility of mold had been 

raised. Passion or prejudice is shown when the verdict shocks 

the conscience. Crewdson v. Burlington Northern RR. Co., 234 

Neb. 631, 452 N.W.2d 270 (1990).

Two contractors were called to testify regarding the cost 

to remedy any defects. Lathan McLaughlin estimated that it 

would cost $120,014.71 to demolish the addition to the foundation and complete construction. McLaughlin did note that some 

of the costs he included in his estimate were not included in 

the original contract or were materials that had already been 

purchased by appellees. Schultz also testified on this issue, 

estimating that it would cost $99,400 to demolish the addition to the foundation and complete construction. While both 

contractors testified that they thought the best approach would 

be to tear down the current addition and rebuild, they each 

conceded that many of the issues could be resolved without 

completely demolishing the addition. They each also testified 

as to what individual repairs on various items would cost if 

demolition were determined to not be necessary. The jury ultimately awarded appellees $40,000.

We cannot say in this case that the verdict shocks the conscience. The verdict is significantly less than what appellees 

requested as relief and is less than either of the bids that were 

offered for remedial work on the addition. The relatively few 

mentions of mold in the testimony were brief, and the recommendation of Schultz was that if there were mold, then the 

entire addition would need to be demolished. Given that the 

jury’s verdict was less than the bids which were based on the 

demolition of the addition to the foundation, it is clear that they 

were not influenced by the mere suggestion of mold. As such, 
- 9 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

the district court did not err in denying the motion for a new 

trial on this issue.

[10] Appellants next allege that the jury’s award was excessive given the facts revealed during trial. This is based on 

appellants’ examination of each of the contractors where they 

walked through many of the issues with the addition and 

asked them how much it would cost to fix individual issues. 

Appellants allege that the totals were $12,300 from McLaughlin 

and $9,700 from Schultz. However, these totals assume only 

some of the remediation would be carried out, and some items 

were not included in this total. Generally, where the damages 

awarded are greater than the amount claimed in the declaration, or, from the facts disclosed by the evidence, are clearly 

excessive, and the illegal portion is distinguishable from the 

legal, the defect may usually be remedied by a remittitur of the 

excess. Barbour v. Jenson Commercial Distributing Co., 212 

Neb. 512, 323 N.W.2d 824 (1982). The verdict is not in excess 

of the requested damages by appellees, and such amount is 

well within the estimated bids of the contractors. Therefore, we 

find that the verdict is not excessive and that thus, the district 

court properly denied the motion for new trial and remittitur 

on this basis.

[11,12] Finally, appellants object to the jury’s verdict on the 

basis that it is not supported by the evidence, in violation of 

§ 25-1142(6), or was a quotient verdict, contrary to NJI2d Civ. 

4.02. We have already addressed the issue of the evidence supporting the verdict and found there to be sufficient evidence to 

support the jury’s verdict. A quotient verdict is one in which 

the jurors, for the purpose of arriving at a verdict, agree that 

each should write on his or her ballot a sum representing his 

or her judgment, that the aggregate should be divided by the 

number of jurors, and that the jurors will be bound by the 

quotient as their verdict. Anis v. BryanLGH Health System, 

14 Neb. App. 372, 707 N.W.2d 60 (2005). It is the agreement 

by the jurors to be bound by the quotient which creates the 
- 10 -

Nebraska Court of Appeals Advance S

27 Nebraska Appellate Repor

BRIDWELL v. WALTON

Cite as 27 Neb. App. 1

invalidity of quotient verdicts; the process of arriving at a 

quotient is valid so long as there is no prior agreement to be 

bound by the result. See id. Appellants do not point to any 

evidence in the record which would suggest that the jury used 

a quotient verdict process or that it was the result of an agreement to be bound by the quotient verdict prior to finding the 

average. Accordingly, this argument is without merit and the 

district court did not abuse its discretion in denying the motion 

for new trial on this basis.

CONCLUSION

We conclude that the district court did not abuse its discretion in denying appellants’ motion to amend to conform to 

the pleadings and did not abuse its discretion in denying the 

motion for new trial and remittitur. The jury’s verdict and order 

of the district court is affirmed.

Affirmed