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Thurston v. Nelson

Court of Appeals of Nebraska

February 4, 2014

T. Sidney Thurston and Jean Thurston, Appellants,
Robert Nelson, doing business as Nelson Construction, and Nelson Construction & Custom Homes, Inc., Appellees.

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Appeal from the District Court for Grant County: TRAVIS P. O'GORMAN, Judge. Affirmed.

Gregory J. Beal, Ogallala, for appellants.

James L. Zimmerman, of Zimmerman Law Firm, P.C., L.L.O., Scottsbluff, for appellees.

Inbody, Chief Judge, and Moore and Riedmann, Judges.


1. Trial: Expert Witnesses: Appeal and Error. A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when 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. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, which an appellate court independently decides.

4. Trial: Witnesses. In order to predicate error upon a ruling of the court refusing to permit a witness to testify, or to answer a specific question, the record must show an offer to prove the facts sought to be elicited.

5. Trial: Evidence: Appeal and Error. To constitute reversible error in a civil case, the admission or exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence admitted or excluded.

6. Trial: Evidence: Appeal and Error. An improper exclusion of evidence is ordinarily not prejudicial where substantially similar evidence is admitted without objection.

7. 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

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was prejudiced by the court's failure to give the requested instruction.

[21 Neb.App. 741] 8. 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.

9. Jury Instructions: Pleadings: Evidence. A trial court, whether requested to do so or not, has a duty to instruct the jury on issues presented by the pleadings and the evidence.

10. Actions: Pleadings: Words and Phrases. A cause of action consists of the fact or facts which give one a right to judicial relief against another; a theory of recovery is not itself a cause of action.

11. Actions: Pleadings. Two or more claims in a complaint arising out of the same operative facts and involving the same parties constitute separate legal theories, of either liability or damages, and not separate causes of action.

12. Election of Remedies. Pleading alternative theories of recovery is permitted, and ordinarily, an election between theories of recovery will not be required unless the theories are so inconsistent that a party cannot logically choose one without renouncing the other.

13. Negligence: Complaints: Contracts: Torts. In order to decide the form of redress, whether contract or tort, it is necessary to know the source or origin of the duty or the nature of the grievance, and the character of the action must be determined from what is asserted concerning it in the complaint.

14. Actions: Breach of Contract: Torts: Words and Phrases. Contract actions, which arise from a breach of a duty imposed on one by an agreement, protect a plaintiff's interest in or right to performance of another's promises, whereas tort actions, which arise from a breach of a duty imposed by law, protect a plaintiff's interest or right to be free from another's conduct which causes damage or loss to the plaintiff's person or property.

15. Contractors and Subcontractors: Warranty. As a general rule, a contractor constructing a building impliedly warrants that the building will be erected in a workmanlike manner.

16. Contractors and Subcontractors: Warranty. The implied warranty of workmanlike performance provides the owner with an action against the contractor if the contractor's work is not of good quality and free from defects.

17. Contracts: Contractors and Subcontractors. In building and construction contracts, in the absence of an express agreement to the contrary, the law implies that the building will be erected in a reasonably good and workmanlike manner and will be reasonably fit for the intended purpose.

Moore, Judge.

[21 Neb.App. 742] I. INTRODUCTION

T. Sidney Thurston and Jean Thurston filed suit in the district court for Grant County against Robert Nelson, doing business as Nelson Construction, and Nelson Construction & Custom Homes, Inc. (referred

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to herein individually and collectively as " Nelson" ), seeking damages for alleged construction defects resulting from Nelson's work in building an addition to and remodeling their house. Following a jury trial, the jury found in favor of Nelson. The Thurstons have appealed, assigning error to the court's exclusion of certain expert witness testimony and its refusal to give requested jury instructions. Finding no abuse of discretion in the district court's exclusion of expert witness testimony and no error in the instructions given to the jury, we affirm.


In their operative complaint, the Thurstons set forth claims for breach of contract, negligence, and breach of the implied warranty of workmanlike performance. Specifically, the Thurstons alleged that as a result of the parties' contact in February 2009, they entered into an oral agreement for Nelson to construct a substantial addition to the Thurstons' house in rural Grant County and to make certain improvements to the existing structure. They alleged that Nelson held himself out as an experienced homebuilder, that he represented he could and would build the addition in accordance with industry standards and building codes within a reasonable time, and that they relied upon Nelson's representations and promises. They further alleged that Nelson worked on their house between May and October, that Nelson removed his tools and equipment from the construction site in November and never returned to complete the project, and that they had paid Nelson $42,024.43 and had incurred $90,479.39 in material and inspection costs.

With respect to breach of contract, the Thurstons alleged that Nelson breached the contract by not completing the agreed [21 Neb.App. 743] construction within a reasonable time, by not performing the work in a workmanlike manner, and by leaving both the old structure and the new structure unprotected from the elements, resulting in damage to the property. They alleged that they had suffered damages to the new construction totaling approximately $132,503.82. They further alleged that they had suffered personal injury due to dampness and mold existing in both the old structure and the new structure, which dampness and mold would require removal and replacement of the new structure at an estimated cost of $116,000 and an estimated additional $250,000 in damages if the old structure required replacement. The Thurstons alleged consequential damages in the nature of loss of use and occupancy of their house, severe emotional distress and mental anguish, and other allowed consequential damages. They alleged that their damages from Nelson's breach of contract were continuing and increasing due to structural inadequacies or defects and continued exposure to the elements.

With respect to negligence, the Thurstons alleged that Nelson had a duty to use reasonable and workmanlike practices and procedures in the construction work and that he breached his duty to do so. Specifically, they alleged that Nelson failed to construct the foundation according to building code and workmanlike practices; supervise the work of subcontractors; protect the property from the elements; use proper-dimension lumber, beams, or support systems for the structure; assess load-bearing capacity of the existing structure or provide adequate structural support for new construction joining the existing structure; and use venting where reasonably required. The Thurstons alleged Nelson's negligence was the sole and proximate cause of damages sustained to both the new and existing

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structure in excess of $10,000. They alleged that they suffered personal injury to their health due to mold on the premises and also repeated their claim for consequential damages.

Finally, with respect to breach of warranty, the Thurstons alleged that Nelson represented himself to be an experienced, qualified homebuilder who was competent and experienced enough to do the contemplated construction work and that [21 Neb.App. 744] based on his representations and the Thurstons' reliance on those representations, Nelson began to construct an addition and to make certain alterations to the existing house. The Thurstons alleged that Nelson failed to perform the construction in a workmanlike manner and that there were numerous structural and cosmetic defects in Nelson's work. They alleged that as a result of Nelson's breach of the implied warranty, they had been damaged in the minimum amount of $250,000. The Thurstons again repeated their claim for consequential damages.

In his answer, Nelson alleged that the work performed was completed in a good and workmanlike manner in compliance with construction standards in the area and that any claims made by the Thurstons were the result of their interference and refusal to allow Nelson to complete the contract. Nelson denied any negligence and alleged that he was not responsible for the hiring, supervision, or payment of any other contractors or subcontractors who performed labor or provided material to complete the construction. Nelson denied the nature and extent of the damages alleged by the Thurstons and denied that they suffered any personal injury to their health by reason of any mold on the premises.

A jury trial was held in the district court beginning on December 17, 2012, and over the course of the 5-day trial, the jury heard testimony from the parties and various witnesses as to the construction work performed by Nelson for the Thurstons and the alleged structural defects and mold damage. The court received numerous photographs and other documentary exhibits into evidence as well. The bill of exceptions, excluding exhibits, is nearly 1,200 pages long. For the sake of brevity and due to the nature of the assignments of error on appeal, we decline to further summarize the evidence here. We have set forth additional facts as necessary to our resolution of this appeal in the analysis section below. We note that Nelson made a motion for ...

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