VKGS v. Planet Bingo , 309 Neb. 950 ( 2021 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/17/2021 12:09 AM CDT
    - 950 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    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 mat-
    ters 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 deter-
    minations 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 exclu-
    sion of evidence is not reversible error unless it unfairly prejudiced a
    substantial right of the complaining party.
    - 951 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    7. Jury Instructions: Appeal and Error. Whether jury instructions are
    correct is a question of law, which an appellate court resolves indepen-
    dently of the lower court’s decision.
    8. Statutes: Appeal and Error. Statutory interpretation presents a ques-
    tion 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 suf-
    ficient 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 docu-
    ment or writing is what it purports to be.
    11. Trial. Bifurcation of a trial may be appropriate where separate proceed-
    ings 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 success-
    ful party.
    - 952 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 inter-
    pretation 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 liabili-
    ties 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 offset-
    ting VKGS’ award.
    - 953 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 evi-
    dence 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 direc-
    tions 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 manage-
    ment and electronic gaming software called EPIC. The parties
    maintained a contractual business relationship from approxi-
    mately 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 confiden-
    tial 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).
    - 954 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 pat-
    ent 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 deter-
    mined that the patent application could not be admitted in
    VKGS’ case in chief, because the exhibit lacked foundation,
    - 955 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 cer-
    tified 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 rele-
    vant, 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
    - 956 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 adju-
    dicated 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’ con-
    tract 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 under-
    stand 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 con-
    tract 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 judg-
    ment 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
    - 957 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 depriv-
    ing 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 rele­
    vancy 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 hear-
    say 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
    .
    - 958 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    [8] Statutory interpretation presents a question of law on
    which an appellate court has an obligation to reach an inde-
    pendent 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 applica-
    tion 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 applica-
    tion 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
    .
    - 959 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    § 27-901(1) (Reissue 2016) does not impose a high hurdle for
    authentication or identification of proffered evidence as a con-
    dition precedent to admissibility. 13 The requirement of authen-
    tication or identification as a condition precedent to admissi-
    bility 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 pat-
    terns, or other distinctive characteristics, taken in conjunction
    with circumstances, sufficient to support a finding that the mat-
    ter 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 testi-
    fies 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 par-
    ties’ 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.
    - 960 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 investi-
    gate 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 direc-
    tion 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).
    - 961 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    cannot now claim on appeal the trial court erred in bifurcat-
    ing 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 screen-
    shots 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).
    - 962 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 informa-
    tion through licensing agreements or confidentiality agree-
    ments 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 confiden-
    tial 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).
    - 963 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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’ confi-
    dentiality 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 sub-
    ject 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).
    - 964 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 rea-
    sonable 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 instruc-
    tions. 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 necessitat-
    ing 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.
    - 965 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    marketing agreement, the 2004 licensing agreement, a 2005
    agreement which solidified the parties’ relationship and super-
    seded 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 relation-
    ship over time. The parties were not bound by the confiden­
    tiality 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 par-
    ties’ 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.
    - 966 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    [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 pre-
    sented 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 con-
    tract 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).
    - 967 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 determina-
    tion 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
    .
    - 968 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 deci-
    sion 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 coun-
    terclaim 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 judg-
    ment 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 inter-
    est 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).
    - 969 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VKGS v. PLANET BINGO
    Cite as 
    309 Neb. 950
    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 post-
    judgment interest.
    Affirmed in part, and in part reversed
    and remanded with directions.
    Papik, J., not participating.