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Cite as 309 Neb. 950

VKGS, LLC, doing business as Video King, 

a Delaware limited liability company, appellant 

and cross-appellee, v. Planet Bingo, LLC, 

a California limited liability company, 

and Melange Computer Services, Inc., 

a Michigan corporation, appellees 

and cross-appellants.

___ N.W.2d ___

Filed August 13, 2021. No. S-20-125.

1. Trial: Evidence: Appeal and Error. Because authentication rulings are 

necessarily fact specific, a trial court has discretion to determine whether 

evidence has been properly authenticated. An appellate court reviews the 

trial court’s ruling on authentication for abuse of discretion.

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

if the reasons or rulings of a trial judge are clearly untenable, unfairly 

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

3. Trial: Appeal and Error. A trial court’s decision to bifurcate claims for 

purposes of trial is reviewed for abuse of discretion.

4. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

5. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for clear 

error the factual findings underpinning a trial court’s hearsay ruling and 

reviews de novo the court’s ultimate determination to admit evidence 

over a hearsay objection or exclude evidence on hearsay grounds.

6. Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a 

substantial right of the complaining party.

Nebraska Supreme Court Online Library

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

09/10/2021 12:08 AM CDT
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7. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

8. Statutes: Appeal and Error. Statutory interpretation presents a question of law on which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

9. Rules of Evidence. Authentication or identification of evidence is a 

condition precedent to its admission and is satisfied by evidence sufficient to prove that the evidence is what the proponent claims.

10. ____. While not a high hurdle, it is still the burden of the proponent of 

the evidence to provide the court with sufficient evidence that the document or writing is what it purports to be.

11. Trial. Bifurcation of a trial may be appropriate where separate proceedings will do justice, avoid prejudice, and further the convenience of the 

parties and the court.

12. Courts: Trial. Trial courts have the inherent power over the general 

conduct of a trial.

13. Appeal and Error. Under Nebraska law, a party cannot complain of 

error which the party has invited the court commit.

14. Verdicts: Appeal and Error. A civil verdict will not be set aside where 

evidence is in conflict or where reasonable minds may reach different 

conclusions or inferences, as it is within the jury’s province to decide 

issues of fact.

15. 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.

16. ____: ____: ____. 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.

17. 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.

18. 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.
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19. 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.

20. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

21. Final Orders. Under Neb. Rev. Stat. § 25-1315 (Reissue 2016), an 

order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not final and is subject to revision at 

any time before the entry of judgment adjudicating all the claims and the 

rights and liabilities of all the parties.

Appeal from the District Court for Douglas County: Duane 

C. Dougherty, Judge. Affirmed in part, and in part reversed 

and remanded with directions.

Paul J. Gardner, B. Scott Eidson, J. Nicci Warr, and Julie 

Scheipeter, of Stinson, L.L.P., for appellant.

Patrick R. Guinan, of Erickson & Sederstrom, P.C., Steven Z. 

Cohen and Aaron E. Silvenis, of Cohen, Lerner & Rabinovitz, 

P.C., and Nicholas F. Sullivan, of Dvorak Law Group, L.L.C., 

for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Freudenberg, JJ.

Funke, J.

VKGS, LLC, and Planet Bingo, LLC, competitors in the 

bingo hall gaming industry, sued each other for breach of 

contract. In the trial on VKGS’ claims, the jury found Planet 

Bingo and its wholly owned subsidiary, Melange Computer 

Services, Inc. (Melange), liable for $558,405. In a separate trial 

on Planet Bingo and Melange’s claims, the jury found VKGS 

liable for $2,990,000. The court awarded VKGS postjudgment 

interest from the time of the first verdict, and it then entered 

judgment in favor of Planet Bingo and Melange, while offsetting VKGS’ award.
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VKGS appeals, arguing that the court should have dismissed 

Planet Bingo and Melange’s claims rather than bifurcate and 

continue trial and that the court should not have ruled evidence inadmissible or refused jury instructions. For reasons we 

explain, VKGS’ appeal is without merit.

Planet Bingo and Melange cross-appeal, arguing that the 

court should not have awarded VKGS postjudgment interest. 

Planet Bingo and Melange’s cross-appeal has merit. Therefore, 

we affirm in part, and in part reverse and remand with directions to modify the judgment in accordance with this opinion.

I. BACKGROUND

VKGS is a Delaware limited liability company with its 

principal place of business in Omaha, Nebraska. Planet 

Bingo is a foreign limited liability company doing business 

in Nebraska. Melange was a software development company 

which ultimately became a wholly owned subsidiary of Planet 

Bingo. Melange is a Michigan corporation doing business 

in Nebraska.

The dispute in this case involves bingo software. The case 

has a complex procedural history. Background facts have 

previously been set forth by this court and other courts. 1

Summarized, Melange developed a leading bingo hall management and electronic gaming software called EPIC. The parties 

maintained a contractual business relationship from approximately 2003 through 2012, which as of 2005 was protected 

by an extensive confidentiality provision drafted by VKGS. 

The parties explored a potential merger, which ultimately 

failed. Eventually, after acquiring Melange, Planet Bingo and 

Melange (hereinafter collectively Planet Bingo) alleged that 

VKGS was in violation of contract by misusing confidential information taken from EPIC to develop a competing 

1 Planet Bingo, LLC v. VKGS, LLC, 961 F. Supp. 2d 840 (W.D. Mich. 2013); 

Planet Bingo, LLC v. VKGS, LLC, 319 Mich. App. 308, 900 N.W.2d 680 

(2017); VKGS v. Planet Bingo, 285 Neb. 599, 828 N.W.2d 168 (2013).
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software program called OMNI. VKGS in turn alleged that 

Planet Bingo breached contractual obligations and tortiously 

interfered with business relations by using pricing information 

and disparagement to influence customers. Two separate jury 

trials ensued.

1. First Trial: VKGS’ Claims

Trial on the parties’ claims began on August 20, 2018. 

Originally, both parties were to present their claims during 

the first trial. However, a need to bifurcate the parties’ claims 

arose due to questioning by VKGS during its case in chief on 

the sixth day of trial. VKGS asked William Wei, the former 

president of Melange, about the source code for EPIC and 

“VIPick’em,” a bingo game played using EPIC. Wei testified 

that he believed that the EPIC source code and the VIPick’em 

source code were confidential. VKGS asked, “[Y]ou would 

never put any of that source code on the Internet, would you?” 

To which Wei answered, “No.” VKGS then asked if Wei 

filed a VIPick’em patent in Canada. Wei answered, “That, I 

don’t know.”

VKGS attempted to impeach Wei through the use of an 

exhibit, which was a copy of a file from the Canadian patent office, which VKGS had obtained from the internet that 

day. The file included a 2001 Canadian patent application 

for VIPick’em, with 158 pages of alleged source code. In 

addition, the exhibit included an assignment signed by Wei 

regarding Melange’s rights to the Canadian patent application. 

Wei admitted that he had signed the assignment, but did not 

remember having the document filed, could not identify the 

document, and stated, “I have no knowledge of this.”

Planet Bingo objected, arguing that VKGS had failed to 

lay foundation and had failed to disclose the document as a 

trial exhibit, in violation of pretrial orders. After several hours 

of argument outside the presence of the jury, the court determined that the patent application could not be admitted in 

VKGS’ case in chief, because the exhibit lacked foundation, 
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was not authenticated, and was not relevant to VKGS’ claims. 

The court found that Wei was being truthful in stating that he 

did not recognize the document, that the exhibit was not a certified copy, and that no witness established the extent to which 

the exhibit was in fact VIPick’em source code, or whether the 

copy was in fact an official document publicly available on the 

internet. VKGS argued the exhibit could be used to impeach 

Wei, but the court found there was no foundation for purposes 

of impeachment. The court found that the exhibit was not relevant, that any relevance was substantially outweighed by unfair 

prejudice, and that the issue was “too much of a surprise” and 

should have been known months earlier. The court stated that 

it would allow the evidence during Planet Bingo’s case. Planet 

Bingo requested time to have an expert compare the source 

code with EPIC before presenting its claims.

In turn, VKGS moved for dismissal of Planet Bingo’s claims, 

arguing that the claims lacked adequate investigation and were 

not viable going forward. The court denied VKGS’ motion. In 

the alternative, VKGS asked the court to “sever” the claims so 

as to allow VKGS to proceed separately with submission of 

its claims to the jury. VKGS argued that “the only appropriate 

action here is to sever the claims, create two different cases, 

allow Planet Bingo to then decide what they want to do with 

their claims, if anything.” VKGS stated, “[W]e do believe 

that if you would prefer to bifurcate . . . that would also be 

a way that would prevent extreme prejudice against [VKGS] 

while preserving Planet Bingo’s right to go forward with their 

claims.” The court overruled VKGS’ motion to “sever,” and 

then proceeded to bifurcate the trial. Trial continued on VKGS’ 

claims only.

At the jury instruction conference, the court refused VKGS’ 

proffered instruction regarding the implied contractual duty 

of good faith and fair dealing. After closing arguments, on 

September 7, 2018, the jury found in favor of VKGS and 

against Planet Bingo for breach of contract in the amount of 

$558,405. The jury rejected VKGS’ other breach of contract 
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and tortious interference claims. The court entered an order 

on the verdict on September 13, 2018. The court found under 

Neb. Rev. Stat. § 25-1315 (Reissue 2016) that the order was 

not final for purposes of appeal until all claims had been adjudicated on the merits.

2. Second Trial: Planet Bingo’s Claims

Trial on Planet Bingo’s claims commenced on June 12, 

2019. Planet Bingo presented evidence to the jury showing that 

VKGS violated the confidentiality provision of the parties’ contract by reverse engineering EPIC to develop OMNI. During 

OMNI’s development process, VKGS personnel admitted in 

emails that they reverse engineered EPIC in order to understand the software, and they were on record stating, “‘When in 

doubt, copy EPIC.’” The court rejected VKGS’ proffered jury 

instructions regarding Planet Bingo’s breach of contract claims. 

The jury found VKGS liable to Planet Bingo for breach of contract in the amount of $2,990,000, but rejected Planet Bingo’s 

misappropriation of trade secret claim and other claims.

The court awarded VKGS postjudgment interest dating back 

to the order on the first verdict. The court then entered judgment in favor of Planet Bingo while offsetting the award 

to VKGS.

VKGS appealed. Planet Bingo filed a cross-appeal.

II. ASSIGNMENTS OF ERROR

VKGS assigns, restated and summarized, that the district 

court erred in (1) bifurcating trial rather than dismissing Planet 

Bingo’s claims, (2) refusing to admit evidence, and (3) refusing 

proposed jury instructions.

Planet Bingo assigns on cross-appeal that the district court 

erred in awarding VKGS postjudgment interest.

III. STANDARD OF REVIEW

[1,2] Because authentication rulings are necessarily fact 

specific, a trial court has discretion to determine whether 
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evidence has been properly authenticated. 2 An appellate court 

reviews the trial court’s ruling on authentication for abuse of 

discretion. 3 A judicial abuse of discretion exists if the reasons 

or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in 

matters submitted for disposition. 4

[3] A trial court’s decision to bifurcate claims for purposes 

of trial is reviewed for abuse of discretion. 5

[4-6] A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations 

will not be disturbed on appeal unless they constitute an abuse 

of that discretion. 6 Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the 

factual findings underpinning a trial court’s hearsay ruling and 

reviews de novo the court’s ultimate determination to admit 

evidence over a hearsay objection or exclude evidence on 

hearsay grounds. 7 In a civil case, the admission or exclusion of 

evidence is not reversible error unless it unfairly prejudiced a 

substantial right of the complaining party. 8

[7] Whether jury instructions are correct is a question of law, 

which an appellate court resolves independently of the lower 

court’s decision. 9

2 O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 432 (2017); 

State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016); State v. Nolan, 283 

Neb. 50, 807 N.W.2d 520 (2012).

3 Id.

4 Vyhlidal v. Vyhlidal, ante p. 376, 960 N.W.2d 309 (2021).

5 See, Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009); 

Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792 

(2005).

6 Acklie v. Greater Omaha Packing Co., 306 Neb. 108, 944 N.W.2d 297 

(2020).

7 Cessna Aircraft Co., supra note 2.

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

N.W.2d 156 (2017).

9 Acklie, supra note 6.
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[8] Statutory interpretation presents a question of law on 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. 10

IV. ANALYSIS

1. VKGS’ Appeal

VKGS argues that its appeal is about what information is 

confidential, what information is public, and who should have 

access to what information. VKGS argues that these issues 

determine the merits of Planet Bingo’s breach of contract 

claim. Moreover, VKGS argues that Planet Bingo benefited 

from a “monumental procedural error” 11 which prejudiced 

VKGS in the presentation of its own claims and the defense 

of the claims against it. Both VKGS’ substantive argument and 

procedural argument focus on the court’s rulings regarding the 

undisclosed 2001 Canadian patent application. In our analysis, 

we explain that the court correctly excluded the patent application from VKGS’ case and that it correctly refused to dismiss 

Planet Bingo’s claims. We find no merit to VKGS’ arguments, 

nor merit to VKGS’ remaining arguments that the court erred 

in refusing other evidence and proposed jury instructions.

(a) Exclusion of Evidence in VKGS’ Case

[9] VKGS argues that the 2001 Canadian patent application should have been admitted in its case in chief. However, 

it is undisputed that VKGS failed to lay foundation for the 

exhibit or properly authenticate the exhibit. Authentication 

or identification of evidence is a condition precedent to its 

admission and is satisfied by evidence sufficient to prove that 

the evidence is what the proponent claims. 12 Neb. Rev. Stat. 

10 Wayne L. Ryan Revocable Trust v. Ryan, 308 Neb. 851, 957 N.W.2d 481 

(2021).

11 Brief for appellant at 19.

12 Cessna Aircraft Co., supra note 2; Oldson, supra note 2.
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§ 27-901(1) (Reissue 2016) does not impose a high hurdle for 

authentication or identification of proffered evidence as a condition precedent to admissibility. 13 The requirement of authentication or identification as a condition precedent to admissibility may be satisfied by testimony that a matter is what it is 

claimed to be, and proper authentication may also be attained 

by evidence of appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction 

with circumstances, sufficient to support a finding that the matter in question is what it is claimed to be. 14

Neb. Rev. Stat. § 27-902(4) (Reissue 2016) provides that 

properly certified public records are self-authenticating. 15

Under Neb. Rev. Stat. § 27-1005 (Reissue 2016), the contents 

of a copy of an official record may be admitted, if the copy of 

the official record is certified or if a person is called and testifies after comparing the copy with the original that it is correct 

and accurate. 16

[10] At the first trial, VKGS failed to produce a certified 

copy of the Canadian patent application and failed to lay 

the necessary foundation through a witness. VKGS failed to 

establish that the document was a publicly available official 

document that contained source code for VIPick’em. While 

not a high hurdle, it is still the burden of the proponent of the 

evidence to provide the court with sufficient evidence that the 

document or writing is what it purports to be. 17 On this record, 

we find no abuse of discretion in excluding the exhibit for lack 

of authentication.

(b) Bifurcation/Motion for Judgment

VKGS argues that the court erred in bifurcating the parties’ claims, rather than simply dismissing Planet Bingo’s 

13 State v. Newman, 300 Neb. 770, 916 N.W.2d 393 (2018).

14 State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

15 State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).

16 State v. Rice, 214 Neb. 518, 335 N.W.2d 269 (1983).

17 Id.
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claims. VKGS argues that Planet Bingo had the Canadian 

patent application in its possession and, with due diligence, 

could have been timely prepared to address the evidence at 

trial. VKGS further argues that bifurcation unfairly gave Planet 

Bingo what was in effect an 8-month continuance to investigate and prepare its claims.

[11,12] Bifurcation is a term used to describe the practice 

of trying one or more of the issues in a case before trying the 

remaining issues. 18 Bifurcation of a trial may be appropriate 

where separate proceedings will do justice, avoid prejudice, 

and further the convenience of the parties and the court. 19

Where a party is confronted with a multiclaim suit that is 

unmanageable, that party can raise those concerns through a 

motion to bifurcate the claims. 20 Additionally, trial courts have 

the inherent power over the general conduct of a trial. 21

[13] In assessing VKGS’ arguments, we are given direction from the findings of the district court, which explained 

the defects in VKGS’ presentation. During the second week 

of trial, VKGS sought to introduce the previously undisclosed 

Canadian patent application exhibit in its case in chief, yet the 

exhibit was relevant only to VKGS’ defense against Planet 

Bingo’s claims. The exhibit was not certified, and VKGS failed 

to have a witness properly authenticate or identify the exhibit. 

When the court did not admit the exhibit and denied VKGS’ 

motion to dismiss Planet Bingo’s claims, VKGS did not object 

to bifurcation of the parties’ claims. In fact, VKGS offered 

bifurcation as a resolution to the patent application dispute. 

Under Nebraska law, a party cannot complain of error which 

the party has invited the court to commit. 22 As such, VKGS 

18 John P. Lenich, Nebraska Civil Procedure § 7:8 (2021).

19 Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920 

N.W.2d 268 (2018).

20 Id.

21 Yopp v. Batt, 237 Neb. 779, 467 N.W.2d 868 (1991).

22 Mahlendorf v. Mahlendorf, 308 Neb. 202, 952 N.W.2d 923 (2021).
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cannot now claim on appeal the trial court erred in bifurcating the trial. In actuality, VKGS’ argument on appeal goes 

to the court’s refusal to dismiss Planet Bingo’s claims rather 

than bifurcation.

After Planet Bingo indicated that it could not go forward 

on its claims until it had an expert review the Canadian patent 

application, VKGS argued that judgment should be granted in 

its favor. VKGS argued that because Planet Bingo made its 

software publicly available through the patent filing, as well as 

through a copyright filing, EPIC seminars, and posting screenshots of EPIC on its website, the information was no longer 

confidential. VKGS stated that Planet Bingo was “claiming 

confidential information over a product that they placed the 

most confidential part of on the internet.” VKGS argued that 

the public availability of the software showed that Planet 

Bingo’s claims had no merit and that the lawsuit was filed with 

a wrongful intent to interfere with VKGS’ business. VKGS 

reiterated these arguments in its written motion for judgment 

or, in the alternative, to “sever” Planet Bingo’s counterclaim 

filed with the court. VKGS claimed that “the revelation that 

the source code for VIPick’em[] and very likely EPIC were 

publicly available for anyone to see calls its entire theory of 

its claims into question.” Our record does not include a written 

court order on VKGS’ motion. However, the court had already 

rejected VKGS’ argument in an earlier order denying VKGS’ 

motion for summary judgment.

In its earlier motion for summary judgment, VKGS asked 

the court to adopt the approach taken by the U.S. Court of 

Appeals for the Seventh Circuit, which enforces confidentiality 

agreements only when the information sought to be protected is 

actually confidential and reasonable efforts were made to keep 

it confidential. 23 Neb. Rev. Stat. § 87-502(4) (Reissue 2014) 

23 nClosures Inc. v. Block and Co., Inc., 770 F.3d 598 (7th Cir. 2014) 

(applying Illinois law).
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of Nebraska’s Trade Secrets Act 24 provides a similar definition 

for “[t]rade secret.” 25 Planet Bingo argued that it implemented 

safeguards to protect its confidential and proprietary information through licensing agreements or confidentiality agreements which restricted access and disclosure. Planet Bingo also 

argued that EPIC was never made publicly available and could 

not be purchased. The court, in ruling on the prior motion for 

summary judgment, found that, assuming that the Seventh 

Circuit’s standard applies, “there remains a question of fact as 

to whether the information sought to be protected is confidential and whether Planet Bingo took reasonable efforts to keep 

it confidential.”

We agree with the district court’s determination that Planet 

Bingo’s breach of contract claim raised issues of fact for the 

jury’s consideration, even under the legal standard proposed 

by VKGS. VKGS’ legal argument is overstated because it 

presumes without evidence that the entirety of EPIC’s source 

code is not confidential and that no reasonable steps were 

taken to protect EPIC’s confidentiality. The patent application, 

for example, merely established the public availability of 158 

pages of source code for one bingo game, in a 2001 application 

that was rejected and abandoned. VKGS did not show that the 

EPIC software is not confidential as a matter of law.

Later, during the trial of Planet Bingo’s claims, Planet 

Bingo’s software expert testified that the source code from 

the Canadian patent application contained approximately 3 

percent of EPIC. Additionally, the application contained an 

outdated version of VIPick’em and did not contain the entirety 

of the source code for the game. Typically, the question of 

whether reasonable measures were taken to keep information 

24 Neb. Rev. Stat. §§ 87-501 et seq. (Reissue 2014).

25 First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 

(2013). See, also, Compuware Corp. v. Serena Software Intern., Inc., 77 F. 

Supp. 2d 816 (E.D. Mich. 1999).
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confidential is an issue for a jury. 26 “‘[O]nly in an extreme 

case can what is a “reasonable” precaution be determined [as a 

matter of law], because the answer depends on a balancing of 

costs and benefits that will vary from case to case.’” 27 Because 

there were issues of fact as to whether EPIC’s source code was 

confidential and whether VKGS violated the parties’ confidentiality provision, the district court properly refused VKGS’ 

request for judgment on Planet Bingo’s claims and submitted 

the claims to the jury.

(c) Exclusion of Evidence 

in Planet Bingo’s Case

VKGS argues that the court erred by excluding a portion of 

an exhibit showing Melange’s financial information during its 

defense of Planet Bingo’s claims, which the court had admitted 

in full during the trial of VKGS’ claims. VKGS argues that it 

was prejudiced by the partial exclusion of the exhibit, because 

VKGS sought to establish that Planet Bingo had installed its 

software at hundreds of charity halls without their being subject to a confidentiality provision. VKGS argues the excluded 

evidence goes to its defense that Planet Bingo’s software was 

not confidential.

[14] Planet Bingo argues that the court did admit the part 

of the evidence that was relevant to VKGS’ defense, over 

Planet Bingo’s objection, and excluded the remaining portions 

of the exhibit, which were not relevant to VKGS’ defense. 

Based upon our review of the record, we conclude that VKGS 

failed to show any error or prejudice based upon the court’s 

evidentiary rulings. VKGS presented extensive evidence to 

support its defense theory that Planet Bingo’s software was 

26 See, Tax Track Systems Corp. v. New Investor World, 478 F.3d 783 (7th 

Cir. 2007); Am. Center for Excellence v. Community College, 190 F. Supp. 

3d 812 (N.D. Ill. 2016).

27 Learning Curve Toys, Inc. v. PlayWood Toys, Inc., 342 F.3d 714, 725 (7th 

Cir. 2003).
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not confidential. Even if the remaining portions of the exhibit 

were admitted, the jury was inevitably faced with the factual 

question of whether any such public disclosure of software 

would allow for copying or reverse engineering. Based on the 

arguments presented by the parties, the district court correctly 

found that reasonable minds may differ on the confidentiality 

issues presented by the evidence in this case. A civil verdict 

will not be set aside where evidence is in conflict or where reasonable minds may reach different conclusions or inferences, 

as it is within the jury’s province to decide issues of fact. 28 This 

assignment of error is without merit.

(d) Jury Instructions

[15-17] VKGS’ final two arguments concern jury instructions. 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. 29 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. 30 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. 31

VKGS argues that the court erred in giving a breach of 

contract jury instruction which allowed the jury to consider 

together, as one breach of contract claim, the parties’ 2003 

28 InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012).

29 Id.

30 Id.

31 Id.
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marketing agreement, the 2004 licensing agreement, a 2005 

agreement which solidified the parties’ relationship and superseded the previous agreements, and a 2007 addendum. VKGS 

argues that the jury should not have been permitted to consider 

the 2003 and 2004 agreements, because the confidentiality 

provision authored by VKGS was not put in place until 2005. 

Therefore, according to VKGS, the 2003 and 2004 agreements 

would have been superseded at the time of any alleged breach. 

VKGS argues that because the 2003 and 2004 agreements 

were superseded, they were “legally defunct at the time of the 

alleged breach” 32 and should not have been considered by the 

jury. We find no merit to this argument.

The trial evidence showed the parties’ contractual relationship over time. The parties were not bound by the confidentiality agreement until 2005. As such, in isolation the 2003 and 

2004 agreements were of limited relevance to Planet Bingo’s 

claim that VKGS misused contractual information. However, 

VKGS has failed to show how including the contracts in one 

instruction created any prejudice. VKGS cannot now argue on 

appeal that the 2003 and 2004 agreements are legally defunct, 

because VKGS asserted its rights under those agreements 

since it filed its complaint in this case and attached the 2004 

agreement, as well as the 2005 agreement, which incorporated 

the entire 2003 agreement. Thus, the facts show that the parties’ contracts were interrelated and cannot be easily separated 

into different instructions as VKGS proposes. Further, VKGS 

failed to show any prejudice as to how the jury was instructed. 

Under our rule that we review the jury instructions as a whole 

when analyzing prejudice, there is effectively no difference 

between submitting the agreements to the jury separately and 

doing so in one instruction. Because we find that the court’s 

instructions correctly stated the law, were not misleading, 

and adequately covered the issues, we conclude there was no 

prejudicial error.

32 Brief for appellant at 35.
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[18] VKGS also argues that because the jury rejected Planet 

Bingo’s trade secret claim, the jury necessarily accepted Planet 

Bingo’s breach of contract theory regarding the confidentiality 

provision. VKGS argues that this is a legally improper result 

and that the jury was required to specifically identify what 

information was confidential and which contract was breached. 

Because, as discussed, we do not view VKGS’ position that all 

of EPIC was not confidential to be supported by the record, we 

consider VKGS’ argument to be a sufficiency of the evidence 

argument. 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. 33 We conclude there was competent evidence presented 

to the jury upon which it could find for Planet Bingo.

[19] Moreover, VKGS’ argument improperly speculates as 

to the jury’s deliberation. On the verdict form for breach of 

contract regarding the 2003, 2004, and 2005 agreements and 

2007 addendum, the jury found that “Planet Bingo [has] met 

[its] burden of proof with respect to its breach of contract claim 

against VKGS . . . and the total amount of damages Planet 

Bingo . . . has incurred as a result of [VKGS’] breach of contract is $2,990,000.” 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. 34 Under an appropriate analysis of a jury 

verdict by an appellate court, we conclude that the jury found 

in favor of Planet Bingo on a valid breach of contract claim, 

rather than on an invalid claim as VKGS argues.

Lastly, VKGS argues that the court should not have refused 

its instruction for breach of implied covenant of good faith 

and fair dealing. It is undisputed that under a choice of law 

33 Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).

34 Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 395 (2015); Heckman 

v. Burlington Northern Santa Fe Ry. Co., 286 Neb. 453, 837 N.W.2d 532 

(2013).
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provision, the parties’ agreements are governed by Michigan 

law. Michigan does not recognize a separate cause of action for 

breach of the implied duty of good faith and fair dealing. 35 As 

such, the trial court could not have instructed the jury as VKGS 

requested. Therefore, the court did not err in refusing VKGS’ 

instruction. VKGS’ appeal is without merit.

2. Planet Bingo’s Cross-Appeal

Planet Bingo argues that the trial court erred by awarding 

VKGS postjudgment interest from the date the court accepted 

the first jury’s verdict, because no judgment was entered after 

the first trial and interest had not yet begun to accrue.

[20] Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous. 36 Under Neb. Rev. Stat. § 45-103 

(Reissue 2010), postjudgment interest accrues on all “decrees 

and judgments.” Under Neb. Rev. Stat. § 45-103.01 (Reissue 

2010), interest accrues on decrees and judgments “from the 

date of entry of judgment until satisfaction of judgment.”

Section 25-1315 states in part:

When more than one claim for relief is presented in an 

action, whether as a claim, counterclaim, cross-claim, or 

third-party claim, or when multiple parties are involved, 

the court may direct the entry of a final judgment as to 

one or more but fewer than all of the claims or parties 

only upon an express determination that there is no just 

reason for delay and upon an express direction for the 

entry of judgment. In the absence of such determination and direction, any order or other form of decision, 

35 Gorman v. American Honda Motor Co., 302 Mich. App. 113, 839 N.W.2d 

223 (2013); Belle Isle Grill Corp. v. Detroit, 256 Mich. App. 463, 666 

N.W.2d 271 (2003); Ulrich v. Federal Land Bank of St. Paul, 192 Mich. 

App. 194, 480 N.W.2d 910 (1991).

36 Wayne L. Ryan Revocable Trust, supra note 10.
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however designated, which adjudicates fewer than all 

the claims or the rights and liabilities of fewer than all 

the parties shall not terminate the action as to any of the 

claims or parties, and the order or other form of decision is subject to revision at any time before the entry of 

judgment adjudicating all the claims and the rights and 

liabilities of all the parties.

Under Neb. Rev. Stat. § 25-1316 (Reissue 2016), “If a counterclaim or setoff established at trial exceeds the plaintiff’s 

claim so established, judgment for the defendant must be given 

for the excess; or, if it appears that the defendant is entitled to 

any affirmative relief, judgment should be given therefor.” The 

practice in this state is that an action including a counterclaim 

shall be tried as an entirety, and not as separate suits. 37

[21] In the present matter, although the parties’ claims were 

joined pretrial, during the course of trial, offsetting claims and 

counterclaims were bifurcated and tried separately. Though 

VKGS’ claims and Planet Bingo’s claims were tried separately, 

they were not tried as separate suits; nor did the trial court 

certify the jury verdict from the first trial as a final judgment. 

Absent such certification, orders adjudicating fewer than all 

claims or the rights of fewer than all the parties are not final 

and are subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of 

all the parties. 38 Final judgment in this case occurred after all 

of the parties’ claims were adjudicated and both jury verdicts 

were accepted by the district court. As postjudgment interest accrues only on judgments, and § 25-1316 contemplates 

only one “judgment,” the district court erred in awarding 

VKGS postjudgment interest when interest had not begun to 

accrue on VKGS’ claim and Planet Bingo’s claim exceeded 

VKGS’ claim. The award of postjudgment interest to VKGS is 

37 Miller v. McGannon, 79 Neb. 609, 113 N.W. 170 (1907).

38 Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
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hereby reversed and the cause is remanded to the district court 

with directions to modify the judgment in conformity with 

this opinion.

V. CONCLUSION

The district court did not err in bifurcating trial of the 

parties’ claims, nor did the court err in declining to dismiss 

Planet Bingo’s claims or in refusing VKGS’ evidence and jury 

instructions. The district court erred in awarding VKGS postjudgment interest.

Affirmed in part, and in part reversed 

and remanded with directions.

Papik, J., not participating.