Juries: Verdicts. A jury, by its general
verdict, pronounces upon all or any of the issues either in
favor of the plaintiff or the defendant.
Juries: Verdicts: Presumptions. Because a
general verdict does not specify the basis for an award,
Nebraska law presumes that the winning party prevailed on all
issues presented to the jury.
Trial: 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.
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.
Trial: Courts: Juries: Attorneys at Law: Notice:
Appeal and Error. In Nebraska, the failure of the
court to notify counsel of a jury's question is
reversible error only if prejudice results.
Rules of Evidence: Juries. Pursuant to Neb.
Rev. Stat. § 27-606(2) (Reissue 2016), juror affidavits
cannot be used for the purpose of showing a juror was
confused, as that would relate directly to the juror's
mental processes in rendering the verdict.
Pretrial Procedure: Appeal and Error. A
trial court's ruling on a discovery sanction will not be
disturbed on appeal absent an abuse of discretion.
Pretrial Procedure. The determination of an
appropriate discovery sanction is to be considered in the
factual context of the particular case.
Rules of the Supreme Court: Pretrial Procedure:
Expert Witnesses. The Nebraska Court Rules of
Discovery in Civil Cases allow a party to discover facts
known and opinions held by opposing experts.
Neb. 778] 10. ___: ___: ___. A party may, through
interrogatories, require the other party to identify each
person intended to be called as an expert witness, disclose
the subject matter on which the expert is expected to
testify, and state the substance of the facts and opinions to
which the expert is expected to testify.
___: ___: ___. Generally, a party who has responded to a
discovery request with a response that was complete when made
is under no duty to supplement the response. However, a party
has a duty to seasonably supplement its discovery response
with respect to any question directly addressed to the
identity of experts expected to be called at trial, the
subject matter on which the expert is expected to testify,
and the substance of the expert's testimony.
Pretrial Procedure: Expert Witnesses. When
determining what discovery sanction is appropriate, a trial
court should consider the explanation for the failure to
comply, the importance of the expert's testimony, the
surprise to the opposing party, any time needed to prepare to
meet the testimony from the expert, and the possibility of a
Judgments: Verdicts: Directed Verdict. A
motion for judgment notwithstanding the verdict may be
granted when the movant's previous motion for directed
verdict, made at the conclusion of all the evidence, should
have been sustained.
Judgments: Verdicts. To sustain a motion for
judgment notwithstanding the verdict, the court resolves the
controversy as a matter of law and may do so only when the
facts are such that reasonable minds can draw but one
___: ___. On a motion for judgment notwithstanding the
verdict, the moving party is deemed to have admitted as true
all the relevant evidence admitted that is favorable to the
party against whom the motion is directed, and, further, the
party against whom the motion is directed is entitled to the
benefit of all proper inferences deducible from the relevant
Motions for New Trial: Appeal and Error. An
appellate court reviews a denial of a motion for new trial
for an abuse of discretion.
from the District Court for Douglas County: J. Michael
Coffey, Judge. Affirmed.
A. Svoboda and Adam J. Wachal, of Gross & Welch. PC,
L.L.O., for appellant.
E. Welch, Jr., Damien J. Wright, and Larry E. Welch, Sr., of
Welch Law Firm, PC, for appellee.
Neb. 779] Heavican, C.J., Miller-Lerman, Cassel, Stacy, and
case, which is before us for a second time, involves a
dispute over amounts owed under a contract between Facilities
Cost Management Group (FCMG) and Otoe County School District
66-0111, also known as Nebraska City Public Schools (the
School District). In the first appeal, we found the jury had
been given an erroneous instruction and we reversed a verdict
in favor of FCMG and remanded the cause for a new
trial.On retrial, the jury returned a verdict in
favor of the School District. FCMG appeals, assigning error
to the admission and exclusion of certain evidence, to the
jury instructions, and to the court's ruling on posttrial
motions. Finding no reversible error, we affirm.
2008, FCMG entered into a contract with the School District
to perform certain architectural, owner representative, and
project management services related to a large construction
project undertaken by the School District. The project
spanned almost 5 years. During that time, a dispute arose
over amounts due FCMG under the contract.
ultimately filed a breach of contract action against the
School District. After a jury trial, FCMG was awarded
approximately $1.9 million in damages. The School District
appealed, and we reversed, and remanded for a new trial after
finding the trial court had improperly instructed the jury
that § 11.2 of the parties' contract was
case was then retried. The second jury trial generally
focused on two issues. The first was how FCMG's fees were
[298 Neb. 780] to be calculated under the contractual
provision we found was ambiguous, § 11.2, which provided
These fees and costs are intended to be converted to Lump Sum
amounts with the initial approval by the Owner and Architect
of the Project Scope, Budget, and concept to be advanced for
funding. Lump Sum amounts and inclusions shall remain
effective for the duration of the Project(s), except in the
event of approved changes in the scope of work or
alternatives to be bid adding two percent or more to the
scope. In such event the Lump Sum fees and costs shall be
increased proportionately to reflect the full percentage of
second issue was the School District's affirmative
defenses. The School District asserted that FCMG fraudulently
induced it into entering the contract by representing that
the contract contained a guaranteed maximum price. In this
regard, the School District claimed FCMG led it to believe
that once the School District approved the initial scope and
budget, FCMG would manage the project to that fixed budget,
and that project costs would not change unless the School
District approved scope changes or selected alternative
construction options. The School District also alleged as an
affirmative defense that FCMG misrepresented the fees it
intended to charge and that the School District entered into
the contract in reliance on that misrepresentation.
2006, the School District decided to construct a new grade
school and make significant renovations to its existing grade
school and high school. Merle Rambo, the sole shareholder,
director, and officer of FCMG, submitted a proposal for the
project to the School District. The proposal emphasized that
FCMG was not a traditional architectural firm, but instead
would serve as the project's architect, owner's
representative, and manager. It stated that because of this,
FCMG had the "unique ability" to "offer
guaranteed maximum cost options."
Neb. 781] After Rambo presented his proposal, the School
District submitted various questions to him. One question
asked whether there was a "guaranteed maximum price for
the project, " and Rambo responded, "Yes, "
followed by an explanation. Another question asked what
happened if the bids came in over the budget, and Rambo
responded FCMG would match the bids to the budget. The School
District also asked whether the fees FCMG showed in the
proposal were "all inclusive, " and Rambo responded
the "costs are all inclusive, incorporating
construction, equipment, site development and related project
School District decided to hire FCMG, and Rambo sent a
standard form agreement for architectural services to Thomas
Farrell, the School District's representative. The
parties customized certain parts of the standard form
agreement, including the fee agreement in § 11.2.
signed the customized contract on July 18, 2007. Farrell did
not sign until August 9. During the interim, Farrell asked
Rambo questions regarding § 5.2.2 of the contract, which
stated that "[n]o fixed limit of Construction Cost shall
be established as a condition of this Agreement . . . ."
Farrell thought this was inconsistent with FCMG's
responsibility, as outlined in its proposal, to perform as
the owner's representative and project manager and to
manage the project to a fixed budget. To address these
concerns, the parties added § 12.7 to the contract. This
section states that FCMG's earlier proposal was attached
"for general reference purposes." Farrell testified
that by doing this, he thought the parties were incorporating
a guaranteed maximum price into the contract. He further
testified that he would not have signed the contract if a
guaranteed maximum price was not part of the deal.
also discussed fees with Rambo prior to signing the contract.
Farrell was confused because there was a fee schedule in
§ 11.2, but other sections of the contract referenced
"OR/ PM" or "Owner Representative/Project
Management" fees. According to Farrell, Rambo told him
the final fees would be [298 Neb. 782] approximately 11
percent of the project budget, plus reimburs-ables. Farrell
testified that he would not have signed the contract had he
known this was not the fee agreement.
trial, Rambo acknowledged telling Farrell the fees would be
10 to 12 percent, but explained he thought Farrell was asking
about only architectural fees, and not owner representative
or project management fees. Rambo also explained that the fee
rates in his proposal covered only architectural fees and did
not cover owner representative or project manager fees.
Approval of Project Scope
January 2008, Rambo prepared a project budget and presented
it to the School District at a school board meeting. The
budget was presented in the form of a grid, which showed the
costs for the project broken down into categories such as
site and construction, equipment, professional services, and
connection systems. The parties generally agree that this was
the point where FCMG's fees were to be converted into a
"Lump Sum" pursuant to § 11.2 of the contract.
January 2008 budget grid showed a project cost of $24.6
million. During Rambo's presentation, the School District
asked him to identify the lump-sum fee in the grid. He
indicated the fee was shown in the category titled
"professional services" in the amount of $1, 944,
000. At trial, Rambo testified that this answer referred only
to his architectural fees, as that is what he thought the
School District was referencing. Rambo prepared a trial
exhibit showing that in aggregate, the 2008 budget grid
actually showed fees, in various categories, in the amount of
$3, 824, 000. Trial testimony established, however, that at
least some of these fees were not ascertainable by the School
District at the time the budget grid was presented in
Additions to Project Scope
August 2008, Rambo presented the School District a list of
alternatives to consider for the construction projects. Each
alternative was presented with a corresponding cost. The [298
Neb. 783] School District understood the costs associated
with the alternatives were "the cost that would be
incurred to the overall Project" if selected. The School
District approved the alternatives with associated costs
listed by Rambo of $1.4 million. The School District
understood this should have increased the project budget from
$24.6 million to $26 million.
2009, FCMG emailed the School District a revised budget. This
budget showed total project costs of $27.5 million. The
School District asked why the budget was shown as $27.5
million, when it understood it was now $26 million. FCMG
responded with a one-page memorandum attempting to explain
several scope increases. The School District also asked Rambo
to explain how his fees were being calculated, but he did not
presented evidence that the School District approved and
added over $4.8 million in scope changes to the projects. The
School District presented evidence that it added only
approximately $2.9 million in scope changes.
parties presented expert testimony on how FCMG's fees
should be calculated under the provisions of § 11.2 of
the contract. Robert Mabrey, an architect who testified for
the School District, explained how to calculate FCMG's
"proportionate" adjustment of fees under §
11.2. Mabrey testified that the calculation required
determining the proportionate relationship between fees and
construction costs at the time the original lump sum was
agreed upon, and then applying that percentage to determine
FCMG's fees for increases in the scope of construction.
As a hypothetical example, if the initial approved
construction costs were $20 million, and the initial lump-sum
fee was $2 million, then FCMG would be entitled to an
additional fee of 10 percent of the cost of any approved
scope increases or selected alternatives.
Neb. 784] Mabrey then looked to the January 2008 budget grid
to determine the lump sum. He found it included construction
costs of $ 19.9 million. Mabrey acknowledged the parties did
not agree on what that budget grid included for FCMG's
fees; FCMG argued the budget grid showed approximately $3.8
million in fees, while the School District contended it
showed only $1.9 million in fees. Because of this dispute,
Mabrey prepared two calculations of the proportional
difference-one based on FCMG's fee numbers and the other
based on the School District's fee numbers.
FCMG's assertion that the budget grid included fees of
$3.8 million, Mabrey concluded that was 19.23 percent of the
construction cost of $19.9 million. He then applied this
percentage to the additional construction costs incurred
during the course of the project, which he calculated at $2.9
million. This computation resulted in Mabrey's finding
that FCMG would be entitled to an additional fee of $562,
302. In sum, FCMG's fees would be the $3.8 million plus
$562, 302, for a total of approximately $4.3 million. It was
undisputed that FCMG previously had been paid $3, 661, 127 in
fees, so according to Mabrey, the amount due using that
computation would be $725, 195.
also did the computation using the School District's
assertion that the budget grid lump-sum fee amount was $1.9
million, not $3.8 million. Under that scenario, the
percentage of fees to construction costs was 12.65, and
applying that percentage to the $2.9 million in scope changes
resulted in increased fees of $369, 974. This computation
resulted in Mabrey's finding that FCMG was entitled to
total fees of approximately $2.8 ...