Edwards v. Mount Moriah Missionary Baptist Church ( 2014 )

Decisions of the Nebraska Court of Appeals
896 21 NEBRASKA APPELLATE REPORTS
issues of material fact remain. Having made this determina-
tion, we need not address the Association’s remaining assign-
ments of error.
CONCLUSION
In conclusion, we find that the district court erred by
granting the motion for summary judgment filed by Scott,
as personal representative. Therefore, we reverse the dis-
trict court’s determination and remand the matter for further
proceedings.
R eversed and remanded for
further proceedings.
Rodney D. Edwards, Sr., doing business as The
Home Improvement Store LLC, appellee,
v. Mount Moriah M issionary
Baptist Church, appellant.
___ N.W.2d ___
Filed April 8, 2014. No. A-12-932.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted and gives the party the benefit of all reasonable
inferences deducible from the evidence.
2. Summary Judgment. Summary judgment is proper when the pleadings, depo-
sitions, and admissions on file, together with affidavits, show there exists no
genuine issue either as to any material fact or as to the ultimate inferences to be
drawn therefrom and show the moving party is entitled to judgment as a matter
of law.
3. Contracts: Judgments: Appeal and Error. The meaning of a contract is a
question of law, in connection with which an appellate court has an obliga-
tion to reach its conclusions independently of the determinations made by the
court below.
4. Contracts: Pleadings. To recover for breach of contract, a plaintiff must show
proof of the existence of a promise, its breach, damage, and compliance with any
conditions precedent that activate the defendant’s duty.
5. Contracts. A contract written in clear and unambiguous language is not subject
to interpretation or construction and must be enforced according to its terms.
6. Parol Evidence: Contracts. The general rule is that unless a contract is ambig­
uous, parol evidence cannot be used to vary its terms.
Decisions of the Nebraska Court of Appeals
EDWARDS v. MOUNT MORIAH MISSIONARY BAPTIST CHURCH 897
Cite as 21 Neb. App. 8967. Rules of the Supreme Court: Pleadings. The key inquiry of the rule for express
or implied consent to trial of an issue not presented by the pleadings is whether
the parties recognized that an issue not presented by the pleadings entered the
case at trial.
8. Courts: Pleadings: Pretrial Procedure. In determining whether to allow amend-
ment of pleadings to conform to the evidence, a court initially should consider
whether the opposing party expressly or impliedly consented to the introduction
of the evidence. Express consent may be found when a party has stipulated to an
issue or the issue is set forth in a pretrial order.
9. Pleadings. Implied consent to trial of an issue not presented by the pleadings
may arise in two situations. First, the claim may be introduced outside of the
complaint—in another pleading or document—and then treated by the opposing
party as if pleaded. Second, consent may be implied if during the trial the party
acquiesces or fails to object to the introduction of evidence that relates only to
that issue.
10. Pleadings: Proof. Implied consent to trial of an issue not presented by the
pleadings may not be found if the opposing party did not recognize that new
matters were at issue during the trial. The pleader must demonstrate that the
opposing party understood that the evidence in question was introduced to prove
new issues.
11. Expert Witnesses. An individual may qualify as an expert by reason of knowl-
edge, skill, experience, training, or education.
12. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Appeal from the District Court for Douglas County: Leigh
Ann R etelsdorf, Judge. Affirmed.
Michael B. Kratville for appellant.
Matthew P. Saathoff and Cathy R. Saathoff, of Saathoff Law
Group, P.C., L.L.O., for appellee.
Irwin, Pirtle, and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
Mount Moriah Missionary Baptist Church (Mount Moriah)
appeals the rulings of the district court for Douglas County
granting the motion for summary judgment of Rodney D.
Edwards, Sr., doing business as The Home Improvement Store
LLC, and overruling Mount Moriah’s motion to alter or amend
judgment. For the reasons that follow, we affirm.
Decisions of the Nebraska Court of Appeals
898 21 NEBRASKA APPELLATE REPORTS
BACKGROUND
Mount Moriah carries property insurance through Church
Mutual Insurance Company (Church Mutual). Church Mutual
hired Robert A. Olson to estimate the damage done to the
church’s roof by a windstorm on June 27, 2008. Olson is the
owner of Accurate Insurance Adjusters, LLC, and has been
an adjuster since 1986. Olson did the initial inspection of the
church’s roof in the summer and fall of 2010.
Olson prepared an initial estimated statement of loss based
on a visual inspection of the damage to the building and roof.
The statement estimated the cost of repair to be $29,922.45.
On or about October 28, 2010, Edwards, the sole owner of
The Home Improvement Store, entered into a contract with
Mount Moriah to replace the roof of the church. The con-
tract stated:
For the contract price(GRAND TOTAL) reflected in
the Accurate Insurance Adjusters . . . final estimate,* [The
Home Improvement Store] will furnish all labor and mate-
rial according to the following specifications, thereinafter
referred to as the work detail. Any additional unforeseen
and /or omitted work needed in the completion, of this job
will be documented, approved and invoiced to CHURCH
MUTUAL . . . and subsequently remitted to [The Home
Improvement Store] by [Mount Moriah].
....
*FOR ROOF REPLACEMENT
The contract identified Mount Moriah as the purchaser and
owner of the premises at issue in Omaha, Nebraska. Under the
contract, the church was to have no out-of-pocket expenses and
a $500 deductible was to be waived if the church displayed a
yard-sign advertisement for The Home Improvement Store for
60 days.
The contract identified The Home Improvement Store as the
contractor, and the contract required a downpayment equal to
50 percent of the grand total upon the start of work, with the
remaining balance to be remitted by the church upon comple-
tion of the work. Edwards obtained the necessary permits on
November 3, 2010, and began work.
Decisions of the Nebraska Court of Appeals
EDWARDS v. MOUNT MORIAH MISSIONARY BAPTIST CHURCH 899
Cite as 21 Neb. App. 896Edwards issued a “Revised Invoice for Roof” indicating
Church Mutual had paid a total of $15,776.04 for all items
completed by The Home Improvement Store. This included
receipt of the downpayment of $9,827.27 and an additional
payment of $5,948.76. The invoice indicates, “The remaining
balance is subject to final approval of [Accurate Insurance
Adjusters] and Church Mutual.”
During the course of the roof replacement, Edwards deter-
mined that additional work was needed beyond the amount
estimated in the original statement of loss. His recommenda-
tion was reviewed by Olson. Olson stated that on or about
November 5, 2010, Edwards informed him of additional square
footage not accounted for in the estimate, additional layers of
old shingles requiring removal, damage to underlying decking,
and additional items that needed to be completed to repair the
church’s roof.
Olson’s affidavit stated that it is common and customary that
when repair work is started, additional work may be necessary
to complete all of the required repairs for proper replacement
and repair of a roof. Olson personally inspected the roof and
found Edwards’ recommendation to be accurate.
Olson prepared a second statement of loss on November
29, 2010, reflecting the additional repairs. The amended total
cost of repair was $38,210.74. The second statement also
reflects discounts for certain charges, because these services
were included in the original statement. The second statement
was provided to Church Mutual, and the cost was approved
as charged. The second statement shows that Church Mutual
initially paid Mount Moriah $18,970.05 and that the remaining
amount to be paid to cover the repair contract was $17,328.69.
On November 29, Olson requested that Church Mutual make
a final payment in the amount of $17,328.69, payable to both
Mount Moriah and Edwards.
Olson stated that the increase between the first statement
of loss and the second statement of loss reflected necessary
increases in square footage, linear footage, and additional work
and that Edwards did not ask for Olson to “double bill” for
any work completed. He stated that the charges were normal
Decisions of the Nebraska Court of Appeals
900 21 NEBRASKA APPELLATE REPORTS
and customary charges for the type of work completed and that
they were fair and reasonable.
The work was completed on or about November 12, 2010.
Edwards stated Mount Moriah informed him that the church
did not want certain siding and trim or gutter work to be
completed and that the church did not want certain awnings
replaced; this work was not completed, and Edwards did not
charge for these services. The value of this work, as set out in
the second statement of loss, was subtracted from the total in
Edwards’ final invoice, sent December 16. The “grand total”
reflected in the final invoice was $34,602.74. The final invoice
acknowledged the previous payments by Mount Moriah of
$9,827.27 and $5,948.76 and requested payment of the remain-
ing amount due, $18,826.71.
After receipt of the final invoice, Mount Moriah submit-
ted a partial payment of $9,425.86 to Edwards; however, the
check was returned to Edwards by the church’s bank because
the account had insufficient funds on January 20, 2011. The
bank sent Edwards a letter stating that Mount Moriah’s account
also had insufficient funds on December 28, 2010, the date the
check was issued.
Edwards attempted to collect from the church the amount
reflected in the final invoice, and he alleges he suffered a
financial loss as a result of the church’s nonpayment. Edwards
sent an e-mail to the pastor at Mount Moriah, requesting pay-
ment of the church’s remaining balance. The e-mail indicated
Olson told Edwards that Mount Moriah had received the final
check from Church Mutual, payable to the church and The
Home Improvement Store. The pastor sent e-mails to Edwards
indicating the church did not intend to pay the amount in the
final invoice. He stated that the church “never agreed to turn
over the complete settlement from [Church Mutual] to [The
Home Improvement Store]” and that the church would not pay,
just because the insurance company had paid, for work that
was not done.
Edwards filed his complaint on January 3, 2011, alleg-
ing Mount Moriah refused to pay the outstanding balance of
the contract for roof repairs. Though the final invoice total
was $18,826.71, Edwards’ complaint requested payment of
Decisions of the Nebraska Court of Appeals
EDWARDS v. MOUNT MORIAH MISSIONARY BAPTIST CHURCH 901
Cite as 21 Neb. App. 896$18,226.71, subtracting $600 for air-conditioning repairs which
Edwards determined were not necessary and therefore were
not completed.
Mount Moriah’s answer denied the amount owed to Edwards
and alleged that Edwards “may be owed some amount but
that the fair and reasonable value of said additional services
is likely less than $1,000.00.” Mount Moriah denied Edwards’
allegation that the project was completed in a good and work-
manlike manner. Mount Moriah stated the amount charged was
not fair and reasonable. Mount Moriah did not file a counter-
claim or plead any affirmative defenses.
Edwards filed a motion for summary judgment on February
21, 2012, and the matter came before the district court for
Douglas County on May 14.
Mount Moriah’s answers to interrogatories allege that there
was no breach of contract, because Church Mutual paid for
work which Edwards did not complete, and that the church
paid Edwards for all work actually completed. The pastor’s
affidavit in opposition to the motion for summary judgment
also alleged Mount Moriah was not given credit for work not
completed by Edwards, including replacement of gutters and
combing of air-conditioning units. The pastor’s affidavit also
alleged the church was entitled to a deductible of $500 pro-
vided in the contract.
Edwards’ affidavit alleged his final invoice did not include
the costs associated with the gutters because he was asked not
to do this work by the church. Edwards’ affidavit stated that
he had planned to comb the air-conditioning units after that
time, but that he subsequently opined the units had not suf-
fered enough damage to require combing, and that as such,
the units were not combed. Edwards stated that he informed
an agent of the church that the final amount he requested was
$600 less than the amount reflected in the final invoice, an
amount attributable to the charged cost for combing the air-
conditioning units.
Edwards also alleged he did not provide the $500 deduct-
ible because it was contingent on Mount Moriah’s displaying
a yard-sign advertisement for The Home Improvement Store
for 60 days. Edwards alleged that he attempted to place a sign
Decisions of the Nebraska Court of Appeals
902 21 NEBRASKA APPELLATE REPORTS
in Mount Moriah’s lawn on a number of occasions but that the
church removed the sign every time.
At the hearing, Mount Moriah offered an affidavit of Addie
Hardrick. Hardrick’s affidavit alleged he looked at the roof of
Mount Moriah in 2012 and found that certain of the repairs
claimed to have been made by Edwards were not done, or were
not done properly. Hardrick alleged that as a result of Edwards’
work, Hardrick made additional repairs in the amount of
$7,984 and Mount Moriah would be expected to make addi-
tional repairs for approximately $1,500.
Edwards objected on foundation, as Hardrick’s affidavit did
not correctly identify the address of Mount Moriah. Edwards
also objected on competency, as Mount Moriah attempted to
qualify Hardrick as an expert. The affidavit does not identify
Hardrick’s position, employer, or experience. The court con-
sidered the evidence and found Hardrick’s affidavit was not
relevant on the claims framed by the complaint and answer,
because Mount Moriah did not “affirmatively allege accord
and satisfaction, setoff, breach of contract or negligence” and
did not raise these issues on counterclaim. The court found that
affidavits of two Mount Moriah church volunteers were not
relevant to the claims framed by the complaint and answer. The
district court also found that Mount Moriah submitted no evi-
dence on the fair and reasonable value of the services provided
by Edwards to contradict the evidence supplied by Edwards
and Olson. The district court granted summary judgment on
July 10, 2012.
Mount Moriah filed a “Motion to Alter and/or Amend
Judgment” on July 17, 2012. The matter came before the dis-
trict court on September 7, and Mount Moriah’s motion was
denied. Mount Moriah timely appeals.
ASSIGNMENTS OF ERROR
Mount Moriah asserts the trial court erred in granting
Edwards’ motion for summary judgment and in denying Mount
Moriah’s motion to alter or amend the judgment. The church
also asserts the trial court erred in raising and sustaining sua
sponte objections to the church’s proffered expert testimony
of Hardrick.
Decisions of the Nebraska Court of Appeals
EDWARDS v. MOUNT MORIAH MISSIONARY BAPTIST CHURCH 903
Cite as 21 Neb. App. 896STANDARD OF REVIEW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives the party
the benefit of all reasonable inferences deducible from the evi-
dence. Green v. Box Butte General Hosp., 284 Neb. 243, 818
N.W.2d 589 (2012).
[2] Summary judgment is proper when the pleadings, depo-
sitions, and admissions on file, together with affidavits, show
there exists no genuine issue either as to any material fact
or as to the ultimate inferences to be drawn therefrom and
show the moving party is entitled to judgment as a matter of
law. Id.[3] The meaning of a contract is a question of law, in con-
nection with which an appellate court has an obligation to
reach its conclusions independently of the determinations made
by the court below. Bedore v. Ranch Oil Co., 282 Neb. 553,
805 N.W.2d 68 (2011).
ANALYSIS
[4] In order to recover for breach of contract, a plaintiff must
show proof of the existence of a promise, its breach, damage,
and compliance with any conditions precedent that activate
the defendant’s duty. See Department of Banking, Receiver v.
Wilken, 217 Neb. 796, 352 N.W.2d 145 (1984).
[5] A contract written in clear and unambiguous language
is not subject to interpretation or construction and must be
enforced according to its terms. Davenport Ltd. Partnership v.
75th & Dodge I, L.P., 279 Neb. 615, 780 N.W.2d 416 (2010).
The district court found that the parties entered into a valid
contract for roof replacement and that the contract was not
ambiguous. The district court found the contract contained
clear terms for determining the final contract price for the
services and materials to be provided by Edwards. The court
also found there was no evidence of the fair and reasonable
value of the services to contradict the evidence supplied by
Edwards and by Olson of Accurate Insurance Adjusters. The
court found there were no material facts in dispute and granted
summary judgment.
Decisions of the Nebraska Court of Appeals
904 21 NEBRASKA APPELLATE REPORTS
Value of Contract.
Mount Moriah asserts there is a genuine issue of material
fact regarding whether Mount Moriah paid the contract in full.
Mount Moriah asserts the parties agreed in the contract to a
grand total of $19,654.54 and paid half of that amount as a
downpayment. Mount Moriah asserts that the other half was
“compromised by the parties downwards to $5948.76” and that
the church paid that amount to Edwards. Brief for appellant at
1. The church’s internal “accounts payable approval voucher”
is marked “payment in full.”
Our review of the evidence shows the contract states that the
contract price shall be the final estimate of Accurate Insurance
Adjusters. The initial statement of loss prepared by Olson of
Accurate Insurance Adjusters and submitted to Church Mutual
for approval was $29,922.45. The contract stated, “Any addi-
tional unforeseen and /or omitted work needed in the comple-
tion, of this job will be documented, approved and invoiced to
CHURCH MUTUAL . . . and subsequently remitted to [The
Home Improvement Store] by [Mount Moriah].”
When Edwards began work on the church, he discovered
additional square footage not accounted for in the estimate,
additional layers of old shingles requiring removal, damage
to underlying decking, and additional items that needed to be
completed to repair the church’s roof. Olson inspected the roof;
prepared a second, revised statement of loss to reflect the addi-
tional work, for a new total of $38,210.74; and submitted it to
Church Mutual for approval. That amount was paid to Mount
Moriah, according to Olson.
[6] The general rule is that unless a contract is ambiguous,
parol evidence cannot be used to vary its terms. Stackhouse
v. Gaver, 19 Neb. App. 117, 801 N.W.2d 260 (2011). Mount
Moriah’s assertion that the parties compromised downward is
an attempt to introduce parol evidence, but the terms of the
contract were clear and unambiguous.
Viewing the evidence in the light most favorable to Mount
Moriah and giving it the benefit of all reasonable inferences
deducible from the evidence, we find there was no material
issue of fact in dispute with regard to the total value of the
Decisions of the Nebraska Court of Appeals
EDWARDS v. MOUNT MORIAH MISSIONARY BAPTIST CHURCH 905
Cite as 21 Neb. App. 896agreed-upon contract. See Green v. Box Butte General Hosp.,
284 Neb. 243, 818 N.W.2d 589 (2012).
Mount Moriah also asserts there is an issue of fact as to
whether it should be billed for 67 square feet, as reflected in
the second statement of loss, or whether the amount should
be for 521⁄3 square feet, as reflected in the first statement
of loss.
As stated above, the parties provided for additional and
unforeseen work in the terms of the contract. After Edwards
discovered the difference in square footage, he submitted the
change to Olson, who inspected the property to verify the
accuracy of Edwards’ claim. Olson’s affidavit states that the
change in square footage was necessary, that he was not asked
to double bill for any work completed, and that the charges
were customary, fair, and reasonable.
However, there is evidence that some of the work contem-
plated in the original contract was not completed, and the
total contract price was to be adjusted downward to reflect
such work.
Work Not Completed.
Mount Moriah asserts that there is an issue of fact as to
whether Mount Moriah should get credit for work not com-
pleted by Edwards and whether it is entitled to the $500
deductible included in the contract.
There is no dispute that Edwards did not complete certain
work on the gutters, siding, trim, and air-conditioning units.
The evidence shows Edwards’ invoice does not include a
charge for gutters, siding, or trim. Though a $600 charge
attributed to combing the air-conditioning units was included
in the final invoice issued to Mount Moriah in December
2010, Edwards’ affidavit states that he does not seek pay-
ment for that work because it was not performed. As a result,
the amount requested in this case is equal to the amount
requested in the final invoice, minus $600, or $18,226.71. All
other work reflected in the final invoice, with the exception
of the air-conditioning work, was work that was completed.
The value of this work, as set out in the second statement
Decisions of the Nebraska Court of Appeals
906 21 NEBRASKA APPELLATE REPORTS
of loss, is equal to the amount requested by Edwards in
this case.
There is no issue of fact as to whether Mount Moriah is
entitled to a credit for work not performed, because Edwards
did not request payment for the work not performed.
Mount Moriah also asserts that it is entitled to a $500 credit
for the deductible. The contract states, “[T]he $500.00 deduct-
ible is waived for 60 day yard sign display.” The only evidence
in the record with regard to the placement of the yard sign
is that Edwards’ affidavit alleges, “[The Home Improvement
Store] attempted to place a sign in [Mount Moriah’s] yard
on a number of different occasions, but [Mount Moriah] kept
removing the said sign.” Based upon the evidence, there is no
issue of fact regarding whether Mount Moriah is entitled to the
deductible; the yard sign was not displayed for 60 days, and
therefore, Edwards was within his right to withhold the deduc-
tion for the yard-sign display.
Affirmative Defenses Not
Raised in Pleadings.
Mount Moriah also asserts that Edwards charged for certain
work and that the church found upon later inspection that the
work was allegedly not completed to a satisfactory standard,
or was not completed at all. Mount Moriah alleges that this
work caused damage to the church and that as a result, Mount
Moriah incurred $7,984 to pay for repairs and expects to
incur another $1,500 to remedy such defects. Mount Moriah
submitted this evidence through the affidavit of Hardrick. At
no time prior to the district court hearing was Hardrick, or
any other proffered expert, disclosed by Mount Moriah dur-
ing discovery.
The trial court excluded Mount Moriah’s evidence about
Edwards’ alleged nonconforming work, because it was outside
of the scope of the pleadings. The court found Mount Moriah
did “not affirmatively allege accord and satisfaction, setoff,
breach of contract or negligence. Neither were those theories
raised in counterclaim.” The trial court also found Edwards
properly objected that the evidence was not sufficient to estab-
lish Hardrick’s qualifications as an expert.
Decisions of the Nebraska Court of Appeals
EDWARDS v. MOUNT MORIAH MISSIONARY BAPTIST CHURCH 907
Cite as 21 Neb. App. 896Neb. Ct. R. Pldg. § 6-1112(b) states, “Every defense, in
law or fact, to a claim for relief in any pleading, whether a
claim, counterclaim, cross-claim, or third-party claim, shall be
asserted in the responsive pleading thereto if one is required,”
except for the enumerated defenses which may be made by
motion. Mount Moriah’s answer failed to allege any affirma-
tive defenses, and Mount Moriah did not file a counterclaim.
The court does not consider evidence submitted by a party
on issues and claims not set forth in the pleadings; therefore,
we would not consider Hardrick’s affidavit with regard to the
damages allegedly sustained, unless another specific provision
or exception applied.
Neb. Ct. R. Pldg. § 6-1115(b) allows amendment of the
pleadings if certain conditions are met. The Nebraska Supreme
Court has assumed, without deciding, that § 6-1115(b) can
be properly applied to summary judgment. Blinn v. Beatrice
Community Hosp. & Health Ctr., 270 Neb. 809, 708 N.W.2d
235 (2006). Accordingly, we apply § 6-1115(b) in the instant
case. That subsection of the rule provides, in part, “When
issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.” Here,
Mount Moriah asserts the issue of the alleged defective work
was tried by implied consent.
[7-10] The Nebraska Supreme Court has stated that the
key inquiry of the rule for “‘express or implied consent’” is
whether the parties recognized that an issue not presented
by the pleadings entered the case at trial. Blinn v. Beatrice
Community Hosp. & Health Ctr., 270 Neb. at 817, 708 N.W.2d
at 244.
“In determining whether to allow amendments to con-
form to the evidence, a court initially should consider
whether the opposing party expressly or impliedly con-
sented to the introduction of the evidence. Express con-
sent may be found when a party has stipulated to an issue
or the issue is set forth in a pretrial order.
“Implied consent may arise in two situations. First, the
claim may be introduced outside of the complaint — in
another pleading or document — and then treated by the
Decisions of the Nebraska Court of Appeals
908 21 NEBRASKA APPELLATE REPORTS
opposing party as if pleaded. Second, consent may be
implied if during the trial the party acquiesces or fails to
object to the introduction of evidence that relates only to
that issue.
“Implied consent may not be found if the opposing
party did not recognize that new matters were at issue
during the trial. The pleader must demonstrate that the
opposing party understood that the evidence in question
was introduced to prove new issues.”
Id., quoting 3 James Wm. Moore et al., Moore’s Federal
Practice § 15.18[1] (3d ed. 2005) (emphasis omitted).
It is clear that the parties did not expressly consent to the
amendment of the pleadings to include defective work or other
affirmative defenses.
The remaining question is whether the issues were raised
by implied consent. The record shows Edwards objected
on competency and foundation grounds to Mount Moriah’s
offering Hardrick’s affidavit at the summary judgment hear-
ing. Edwards also asked for rebuttal when Mount Moriah
asserted that the trial court should take Hardrick’s affida-
vit into account on the issue of defective work. Edwards’
counsel asserted that defective work was not at issue and
stated, “You have to raise it in an affirmative defense or file
a counterclaim.”
We find, upon our review of the evidence, that the pleadings
were not amended under § 6-1115(b) here, because the issues
of defective work or accord and satisfaction were not tried by
express or implied consent.
Further, Hardrick’s affidavit is not sufficient to meet the
requirements to qualify an individual as an expert. Ordinarily,
an expert’s opinion is admissible under Neb. Rev. Stat.
§ 27-702 (Reissue 2008) if the witness (1) qualifies as an
expert, (2) has an opinion that will assist the trier of fact, (3)
states his or her opinion, and (4) is prepared to disclose the
basis of that opinion on cross-examination. Village of Hallam
v. L.G. Barcus & Sons, 281 Neb. 516, 798 N.W.2d 109 (2011).
It is within the trial court’s discretion to determine whether
there is sufficient foundation for an expert witness to give his
opinion about an issue in question. Id.Decisions of the Nebraska Court of Appeals
EDWARDS v. MOUNT MORIAH MISSIONARY BAPTIST CHURCH 909
Cite as 21 Neb. App. 896[11] Under § 27-702, a witness can testify concerning sci-
entific, technical, or other specialized knowledge only if the
witness qualifies as an expert. Orchard Hill Neighborhood
v. Orchard Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820(2007). An individual may qualify as an expert by reason
of knowledge, skill, experience, training, or education. See
Northern Nat. Gas Co. v. Beech Aircraft Corp., 202 Neb. 300,
275 N.W.2d 77 (1979).
Upon our review, Hardrick’s affidavit fails to set forth suf-
ficient foundation for his opinion, because he includes no ref-
erences to his occupation, training, experience, qualifications,
or education. He also fails to accurately describe the property
he inspected and the methodology he employed during such
inspection. He merely states that he was hired to “look at the
structure” after a rainstorm and gave his opinion that the dam-
age was attributable to Edwards’ work. Therefore, Hardrick’s
affidavit does not support Mount Moriah’s assertion that there
are genuine issues as to any material fact.
Failure to Object to Proffered Expert
Testimony on Relevance.
Mount Moriah asserts that Edwards’ failure to object that
Hardrick’s affidavit was not relevant waived the objection, and
Mount Moriah asserts that it was outside of the province of
the court to exclude the evidence on a sua sponte objection.
Edwards did object to the affidavit on foundation and compe-
tency and asserted at the hearing that Mount Moriah must raise
the right to setoff as an affirmative defense or file a counter-
claim and that this was not done.
The trial court’s order found the affidavit was excluded as
evidence of issues not relevant to the claims framed by the
complaint and answer. The trial court noted that Edwards
objected to the evidence during the hearing, and it stated that
it would not consider evidence submitted on issues and claims
not set forth in the pleadings. Further, the trial court stated
Mount Moriah could not interject new theories of recovery
that would substantially change the nature of the case as well
as reopen concluded discovery to first present the theories at a
motion for summary judgment.
Decisions of the Nebraska Court of Appeals
910 21 NEBRASKA APPELLATE REPORTS
[12] As discussed above, Hardrick’s affidavit was properly
excluded from evidence because it lacked the foundation to
qualify him as an expert and failed to demonstrate his com-
petence, both objections raised by Edwards at the hearing.
Having found that the affidavit was properly excluded, we
decline to discuss whether the court made a sua sponte objec-
tion with regard to the affidavit’s relevance. An appellate court
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it. Hill v. Hill, 20
Neb. App. 528, 827 N.W.2d 304 (2013).
CONCLUSION
Upon our review of the evidence, we find that there are no
genuine issues of material fact and that Edwards was entitled
to judgment as a matter of law.
Affirmed.
William Burnett, appellant and cross-appellee,
v. Tyson Fresh M eats, I nc., appellee
and cross-appellant.
___ N.W.2d ___
Filed April 8, 2014. No. A-13-278.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or the award.
2. ____: ____. On appellate review of a workers’ compensation award, the trial
judge’s factual findings have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. Workers’ Compensation. The statutory scheme found in Neb. Rev. Stat.
§ 48-121 (Reissue 2010) compensates impairments of the body as a whole in
terms of loss of earning power or capacity, but compensates impairments of
scheduled members on the basis of loss of physical function.
4. ____. The test for determining whether a disability is to a scheduled member or
to the body as a whole is the location of the residual impairment, not the situs of
the injury.