Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/19/2019 09:06 AM CDT




                                                         -1-
                                Nebraska Court of A ppeals A dvance Sheets
                                     27 Nebraska A ppellate R eports
                                               BRIDWELL v. WALTON
                                                Cite as 27 Neb. App. 1




                          Charles Bridwell and Sylvia Bridwell, husband
                               and wife, appellees, v. Brett Walton
                               and Gary Walton, doing business as
                                 Walton Contracting, appellants.
                                                   ___ 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 evi-
                    dence is presented to the jury upon which it could find for the success-
                    ful 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 fail-
                    ure 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 intro-
                    duces 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.
                                     -2-
            Nebraska Court of A ppeals A dvance Sheets
                 27 Nebraska A ppellate R eports
                           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: Vicky
L. Johnson, Judge. Affirmed.

  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 A rterburn, Judges.

   Pirtle, Judge.
                        INTRODUCTION
   Brett Walton and Gary Walton, doing business as Walton
Contracting (collectively appellants), appeal from a jury ver-
dict 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 A ppeals A dvance Sheets
               27 Nebraska A ppellate R eports
                       BRIDWELL v. WALTON
                        Cite as 27 Neb. App. 1

demonstrate the standard of workmanlike manner, and in deny-
ing 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 exist-
ing 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, bring-
ing 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, includ-
ing problems with the concrete, size of the crawlspace, win-
dows, 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 conversa-
tion, it is undisputed that following the conversation, appellants
                                -4-
          Nebraska Court of A ppeals A dvance Sheets
               27 Nebraska A ppellate R eports
                       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 sub-
sequently filed a motion for new trial and a motion for remit-
titur, 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 stan-
dard 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 dis-
cretion 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 A ppeals A dvance Sheets
               27 Nebraska A ppellate R eports
                       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 con-
form 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 photo-
graphs 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 construc-
tion 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 over-
ruled. 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 ques-
tioned 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 evi-
dence,” but, rather, “a motion to raise an affirmative defense”
and that the defense had been waived.
                                -6-
          Nebraska Court of A ppeals A dvance Sheets
               27 Nebraska A ppellate R eports
                       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 preju-
dicial and that thus, the district court erred in allowing this evi-
dence in over objection. However, appellants did not specifi-
cally 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 plead-
ing 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 plead-
ings 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 appel-
lants’ 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 A ppeals A dvance Sheets
               27 Nebraska A ppellate R eports
                       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 appel-
lants 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 consoli-
dated and addressed together. These issues were raised within
the motions for new trial and remittitur.
                                -8-
          Nebraska Court of A ppeals A dvance Sheets
               27 Nebraska A ppellate R eports
                       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 primar-
ily 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 founda-
tion 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 addi-
tion 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 ulti-
mately awarded appellees $40,000.
   We cannot say in this case that the verdict shocks the con-
science. 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 recom-
mendation 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 A ppeals A dvance Sheets
               27 Nebraska A ppellate R eports
                       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 exces-
sive 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 declara-
tion, 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 sup-
porting 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 A ppeals A dvance Sheets
              27 Nebraska A ppellate R eports
                      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 agree-
ment 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 discre-
tion 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.
                                                     A ffirmed.
