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Bridwell v. Walton

Court of Appeals of Nebraska

March 12, 2019

Charles Bridwell and Sylvia Bridwell, husband and wife, appellees, Brett Walton and Gary Walton, doing business as Walton Contracting, appellants.

         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.

         [27 Neb.App. 2] 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, PC, ...


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