Opinion
No. A-10-1179.
01-31-2012
WEST PLAINS CO. v. JELINEK WEST PLAINS CO., A NEBRASKA CORPORATION, APPELLEE, v. JIM JELINEK, APPELLANT.
Terry Curtiss, of Curtiss, Moravek & Curtiss, P.C., L.L.O., for appellant. Todd R. McWha, S. David Schreiber, and Nicholas J. Welding, of Waite, McWha & Schreiber, for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Box Butte County: RANDALL L. LIPPSTREU, Judge. Affirmed.
Terry Curtiss, of Curtiss, Moravek & Curtiss, P.C., L.L.O., for appellant.
Todd R. McWha, S. David Schreiber, and Nicholas J. Welding, of Waite, McWha & Schreiber, for appellee.
IRWIN, MOORE, and CASSEL, Judges.
MOORE, Judge.
INTRODUCTION
West Plains Co. (West Plains) filed a complaint in the district court for Box Butte County, alleging that Jim Jelinek breached a contract with West Plains for the sale of No. 2 yellow corn. Following entry of a jury verdict and award of damages in favor of West Plains, Jelinek filed a motion for new trial. The court denied Jelinek's motion, and Jelinek has appealed to this court. Jelinek assigns error to the admission of certain exhibits, denial of his objection to certain statements made during closing argument, refusal to admit a juror affidavit at the hearing on his motion for new trial, failure to grant the motion for new trial due to jury misconduct and because the verdict of damages was contrary to law due to the jury's error in calculation, and denial of his motion for remittitur. We find no merit to any of these arguments, and accordingly, we affirm the judgment in all respects.
BACKGROUND
West Plains is a company that buys and sells grain, primarily wheat and corn. West Plains buys corn from farmers and sells it to feedlots and an ethanol plant. Jelinek has been farming since 1979. In 2006, he was farming approximately 5,500 acres. The dispute in this case arises from transactions regarding the sale of corn by Jelinek to West Plains in 2006.
The record contains several purchase contract documents, showing grain purchase transactions between West Plains and Jelinek. Contract No. 12878 (the first contract), dated August 2, 2006, was admitted into evidence as exhibit 10. The first contract is for 450,000 bushels of No. 2 yellow corn purchased by West Plains from Jelinek at $2.40 per bushel. The first contract does not make any reference to "mixed corn" or "blended corn." The first contract lists a shipment period starting August 1 and ending September 15. The copy of the first contract in our record does not show a signature by either party. Jelinek fulfilled the terms of the first contract.
Contract No. 12962-01 (the second contract), dated September 14, 2006, was admitted into evidence as exhibit 11. The second contract is for an additional 60,000 bushels of No. 2 yellow corn purchased by West Plains from Jelinek at $2.30 per bushel. The second contract lists a shipment period starting September 14 and ending September 30. The second contract also does not mention "mixed corn" or "blended corn," and, like the first contract, the copy in our record does not show a signature for either party.
Issues arose relating to the quality of the corn supplied by Jelinek. The record shows that Jelinek mixed "good" or acceptable corn with "bad" or unacceptable corn to meet the requirements of No. 2 yellow corn. West Plains does not object if a farmer mixes or blends corn as long as the end product meets the standard of No. 2 yellow corn. There are specifications concerning weight, moisture content, and percent of damaged kernels in order to qualify as No. 2 corn.
Jelinek delivered some loads of unblended good corn at West Plains' request, ran out of good corn to mix with bad corn, and stopped supplying corn after West Plains refused to take loads of bad corn only. The records show that October 2, 2006, was the last date Jelinek delivered any corn on the second contract. Jelinek refused to deliver the remaining 10,526 bushels of corn due under the second contract.
These issues led to the creation of contract No. 13288-03 (the rollover contract), dated November 21, 2006, which was admitted into evidence as exhibit 15. The rollover contract was for the purchase of 10,526 bushels of No. 2 yellow corn by West Plains from Jelinek at $2.30 per bushel with a start date of October 1, 2007, and an end date of November 30. Like the other contract documents in the record, the copy of exhibit 15 in the record is not signed by either party. Jelinek maintains that he never agreed to the rollover contract and that he told West Plains of his disagreement.
In December 2007, West Plains sent a letter to Jelinek, informing Jelinek that its records showed he had not delivered the 10,526 bushels of corn to fulfill his obligations under the rollover contract, which letter was received into evidence as exhibit 19. The letter further stated:
If in the event the bushels are not received by 01/15/2008 then we will buy the necessary bushels to fill your contract. . . . These bushels will be bought out at market price, at
contract delivery point on 01/18/2008. We will calculate the net cost between your contract, and this amount will be expensed by way of an invoice to you. In the event that there are monies owed to you by pending grain settlements, the West Plains Co[.] will apply these monies toward your bill. We will require this payment by 1/30/2008. Any payments not received by 1/30/2008 will be referred to the West Plains Co. legal counsel for collection.
West Plains eventually created contract No. 1685 (the cover contract), dated February 1, 2008, which was admitted into evidence as exhibit 20. Exhibit 20 states that 10,526 bushels of No. 2 yellow corn were sold by West Plains to Jelinek at a price of $4.94 per bushel. West Plains sent Jelinek a letter dated February 1, 2008, which was received into evidence as exhibit 22. Exhibit 22 states that under the rollover contract Jelinek sold West Plains 10,526 bushels of corn at $2.30 per bushel for a total of $24,209.80 and that West Plains would sell corn to Jelinek at $4.94 per bushel to fill his contract for a total of $51,998.44. The letter further stated that the difference between $51,998.44 and $24,209.80 of $27,788.64 was owed to West Plains.
West Plains filed a complaint for breach of contract in the district court. West Plains set forth the details of the second contract, alleging that Jelinek delivered 49,474 bushels of corn during the 2006 harvest pursuant to that contract and that the remaining 10,526 bushels of Jelinek's corn were rejected as failing to meet the specified contract grade. West Plains asserted that Jelinek agreed to the rollover contract for delivery of the remaining bushels of corn during the 2007 harvest, that Jelinek's sole objection to the rollover contract was that it should have been for 5,000 bushels rather than 10,526, but that Jelinek failed to deliver any corn under the rollover contract. West Plains alleged that it sold 10,526 bushels of corn to Jelinek at the then-market price of $4.94 per bushel under the cover contract to satisfy the rollover contract. West Plains alleged that it had been damaged in the amount of $27,788.64 (cover price of $4.94/bushel - contract price of $2.30/bushel = $2.64/bushel x 10,526 bushels = $27,788.64) as a direct and proximate result of Jelinek's breach of contract.
In his answer, Jelinek generally denied the allegations of the complaint and affirmatively alleged that he contracted to sell 60,000 bushels of blended corn to West Plains under an oral agreement with Mike Fastnacht, that a representative of West Plains examined Jelinek's corn and specified the manner of mixing the corn, and that Jelinek delivered 36 loads of corn between August 24 and September 5, 2006. Jelinek further alleged that commencing with a bill of lading dated September 5, 2006, and for the next nine loads of grain, he shipped unmixed corn per the demands of West Plains' truckdrivers, that he ceased shipment of unmixed grain on September 6 as the agreement had been for mixed corn, and that West Plains' refusal to accept mixed corn constituted a breach, which terminated the oral contract. Finally, Jelinek alleged that he did not purchase corn from West Plains at any time; that he did not agree to deliver any 2007 corn to West Plains, pursuant to any agreement, oral or written; and that West Plains had fabricated the alleged contract documents attached to its complaint. Jelinek asked the court to dismiss West Plains' complaint and allow him recovery of his costs and attorney fees.
A jury trial was held on August 17 and 18, 2010. Jelinek testified as well as several West Plains employees. Paul Yekel buys and sells grain for the elevators out of West Plains' Hay Springs, Nebraska, location, and he oversees the bookkeeping department at West Plains. Fastnacht worked for West Plains from June 2005 through January 2007 as a grain merchandiser. Justin Anderson is also a grain merchandiser for West Plains. Yekel and Anderson both testified to the business practices of West Plains and its standard procedure for the creation of contracts. Yekel did not have any personal contact with Jelinek regarding the various contracts. Fastnacht negotiated the second contract with Jelinek and was familiar with the issues surrounding Jelinek's failure to supply corn and the preparation of the rollover contract. Anderson was involved in the cover contract and the letters sent to Jelinek regarding his obligation under the cover contract.
The record shows that the standard procedure for creating contracts by West Plains is that after a verbal agreement is reached with the farmer, a written contract is prepared and mailed to the farmer the same day. The written contract is normally signed by West Plains as the buyer and two copies are provided to the farmer--one for the farmer to retain and one to be signed by the farmer and returned to West Plains. According to Yekel, after approximately 10 days, if the contract has not been returned by the farmer, West Plains contacts the farmer to determine whether there is a problem with the contract. If there is a dispute or objection by the farmer with the contract, that information is automatically written down, signed, dated, and placed in the file to prevent later disputes. Contracts are only created and mailed after a farmer has agreed to the terms.
The record shows that the first and second contracts were prepared and mailed using the foregoing procedure and were maintained in the records of West Plains in the ordinary course of its business. The first contract was fully performed by Jelinek. The records relating to the second contract showed that 10,526 bushels remained undelivered for the 2006 crop year, which Jelinek does not dispute. Fastnacht, who negotiated the second contract with Jelinek, testified to his understanding that Jelinek would blend together his good-quality corn stored in bins and his lesser-quality corn stored on the ground in order to fill the second contract for No. 2 yellow corn. According to Fastnacht, Jelinek was running short of good corn to mix with bad corn and the feedlots would not accept it. Fastnacht testified that Jelinek wanted West Plains to take the "all-bad corn" to fulfill the second contract. West Plains was unwilling to do so, and Fastnacht discussed with Jelinek the possibility of entering into a rollover contract in order for Jelinek to provide the remaining corn the following year. Jelinek initially declined the rollover contract, after which Fastnacht contacted his supervisor, Mike Rowan, and discussed the situation. According to Fastnacht, Rowan said that he would call Jelinek, that Rowan called Jelinek, and that Rowan called Fastnacht back and instructed him to prepare the rollover contract for delivery of the corn the following fall. Thereafter, the rollover contract, exhibit 15, was mailed to Jelinek. This contract provided for the 10,526 bushels of corn due from the second contract to be delivered in the 2007 crop year. The record indicates that this contract was maintained in the records of West Plains in the ordinary course of business and the records concerning the rollover contract do not contain any notation of a dispute or objection with the contract by Jelinek.
The record shows that during October and November 2006, it would have cost West Plains $2.30 to $2.31 per bushel to buy corn to cover the 10,526 bushels that Jelinek had not delivered.
Jelinek testified about the first and second contracts and agreed that the terms reflected on those contracts were accurate. Jelinek intended to blend or mix different sources of corn that he had in order to fill these contracts and agreed that the blended product had to meet the requirement of No. 2 yellow corn. Jelinek agreed that during the period in which he was delivering corn under the first and second contracts, he received a complaint from Fastnacht and from John Brunner, one of the truckers picking up the corn, about the quality of the corn. According to Jelinek, Fastnacht asked him to provide West Plains with a couple of loads of unblended good corn to address the quality issues. Jelinek testified that due to a miscommunication between him and one of his employees, West Plains took approximately 10 loads of good corn, rather than the two loads discussed by Fastnacht and Jelinek. After the loads of good corn went out, Jelinek did not allow West Plains to take any more corn. He admitted that before giving West Plains the unblended corn, he did not tell anyone that the unblended loads would reduce the amount of corn he was going to deliver under the second contract. Jelinek felt that he had fulfilled the second contract since West Plains took approximately 10 loads of unblended good corn, which they could have blended with the bad corn to fill the contract. For this reason, Jelinek testified that he refused Fastnacht's request to rollover the remaining 10,526 bushels.
Anderson testified about the necessity of corn satisfying the specified grade and weight in a contract. Anderson testified that if West Plains buys corn that does not meet the specified grade and weight, it will be discounted with some amount per bushel being taken off the purchase price. If corn is absolutely rejected by the feedlot West Plains is selling to, West Plains still has to pay trucking costs and find another place to deliver the corn. Anderson explained that No. 2 yellow corn was the industry standard on which all of the end users, such as feedlots and ethanol plants, base the quality of corn.
Anderson testified about West Plains' procedure when a farmer does not fulfill a contract. Anderson explained that depending on the value of the contract versus the value at the time of buyout, the farmer could have equity in the contract or could owe money to West Plains. Anderson testified about the letters and cover contract sent to Jelinek after he failed to deliver corn under the rollover contract. Anderson signed the December 2007 letter, exhibit 19, which was sent to Jelinek, advising him to either deliver the remaining bushels of corn or that West Plains would buy out the contract on January 18, 2008. The district court received exhibit 19 into evidence over Jelinek's objections on relevance, foundation, and hearsay.
Anderson testified that exhibit 20 was the cover contract that he created in the ordinary course of business on the 10,526 bushels of corn Jelinek did not deliver at a purchase price of $4.94 per bushel. According to Anderson, $4.94 was the price that other feedlots and ethanol plants were paying for corn at the time. Anderson identified exhibit 21 as a bid sheet generated at the end of every day in the ordinary course of West Plains' business. Anderson testified that on January 18, 2008, the delivery date referenced in exhibit 19, No. 2 yellow corn was selling for $4.98 per bushel. The district court received exhibits 20 and 21 over Jelinek's relevancy objections. Finally, Anderson testified about exhibit 22, which was the letter signed by him and sent to Jelinek on February 1, 2008, showing the amount owed by Jelinek to West Plains as $27,788.64. Anderson testified that the price used in his calculations included the cost for West Plains to transport corn to feedlots. The court received exhibit 22 into evidence over Jelinek's relevance objection.
Anderson admitted that if the parties had not agreed to the rollover contract, Jelinek's breach of the second contract would have occurred in November 2006, which was when Jelinek advised that he was not going to deliver any more corn. However, Anderson reaffirmed that there was nothing in the West Plains records to indicate that Jelinek objected to the rollover contract after it was mailed to him. Thus, Anderson proceeded under the usual procedure of West Plains to cover the contract and seek recovery from Jelinek. According to Anderson, $4.94 per bushel was the price at which West Plains was selling corn in February 2008; however, West Plains was buying corn from other producers in February 2008 for $4.67 per bushel.
Brunner, the owner of a trucking operation, was one of the truckers who hauled corn in September 2006 on behalf of West Plains from Jelinek's farm to the feedlots. Brunner testified about the issues with respect to the quality of Jelinek's blended corn. The evidence showed that one of the loads rejected by a feedlot due to quality issues was delivered to and accepted by another feedlot, so that West Plains only incurred the cost of additional freight with respect to that load.
During closing argument, counsel for both parties made multiple references to Rowan, the West Plains employee who spoke to Jelinek about the rollover contract, and, according to Fastnacht, directed him to create the rollover contract document. We set forth several of those references, which are relevant to the issues on appeal. West Plains' counsel stated, without objection:
Unfortunately, West Plains' former employee . . . Rowan wasn't able to testify. He's a former employee. He could not be here, and was not willing to come. He was the party that . . . Jelinek testified that he talked to at least on two occasions. The substance of that conversation . . . Jelinek says is he did not agree to the rollover contract.
In his closing argument, Jelinek's counsel reminded the jury that Fastnacht's testimony had been by deposition and then stated:
Now, we didn't get told in any direct testimony yesterday that . . . Rowan was a former employee. What we are forced to ask is what does that have to do with anything and why wasn't he here? If his testimony is so critical, if . . . Jelinek made an agreement with . . . Rowan, they could've deposed him and said that.Jelinek's counsel also stated, "The interest or lack of interest of the witness in the result of the case. Well, that's significant as far as . . . Fastnacht. It's also significant when we see . . . Rowan didn't testify." He also told the jury:
He's not here. He didn't testify. The only direct firsthand knowledge you have from anybody is . . . Jelinek saying, "No." I said, "No. I was unhappy with how this contract ended."
The fact they could get a business record in evidence is not showing there was an agreement. . . . Not in the face of . . . Rowan not testifying, not saying something different when all they had to do was depose him. They managed to do that with . . . Fastnacht, why not him? Well, one of the things you can infer as a juror is maybe he wouldn't have said what they wanted to hear.Fastnacht testified to." The district court overruled the objection, stating "The jurors' memory will be the optimum memory of testimony for all witnesses." There were no further references to Rowan during the rebuttal argument, and Jelinek made no further objections or motions relating to the reference to Rowan made by West Plains' counsel during the rebuttal argument.
Finally, in his rebuttal argument, West Plains' counsel stated:
There's references made . . . to infer why . . . Rowan wasn't here. One inference you can make is maybe . . . Rowan is outside the Court's subpoena power. Maybe we
couldn't force him to testify. Maybe we couldn't force him to sit for a deposition. He's no longer an employee of West Plains. There's no way West Plains can force him to participate in this action.
That's the issue here. And that's why we are relying on the documents, the written tangible evidence, the objective proof as to what happened. West Plains testified as to its business practice. It only creates these documents when there's an oral agreement. The guy who created the oral agreement and instructed . . . Fastnacht to do the written agreement is no longer an employee of West Plains and is beyond the Court's subpoena power.
Now, . . . Fastnacht is also beyond the Court's subpoena power, but he agreed to sit for his deposition. And his deposition stated that he talked to . . . Jelinek and he created the agreement pursuant to company standards after . . . Rowan had talked -- At this point, Jelinek's counsel objected, stating "He's mischaracterizing what . . .
The jury returned a verdict in favor of West Plains in the amount of $24,209.80. The court accepted the verdict and entered judgment in that amount.
Jelinek filed a motion for new trial on August 25, 2010, alleging that a new trial or remittitur should be granted due to (1) irregularity in the proceedings by West Plains' counsel by which Jelinek was prevented from having a fair trial, (2) misconduct of West Plains' counsel, (3) error in the assessment of the amount of contract recovery, (4) the verdict was not sustained by the evidence or was contrary to law, and (5) an error of law occurring at trial and excepted to by Jelinek.
A hearing on Jelinek's motion for new trial was held on September 28, 2010. Jelinek offered exhibits 25 (Jelinek's rebuttal closing argument to the jury), 26 (affidavit of juror D.R.), 27 (affidavit of another juror), and 28 (affidavit of Rowan). We have set forth details of those exhibits as necessary in the analysis section below. West Plains objected to the juror affidavits pursuant to Neb. Rev. Stat. § 27-607 (Reissue 2008) and to Jelinek's other exhibits on relevance. The district court took West Plains' objections under advisement. West Plains offered exhibit 29 (transcript of Jelinek's closing argument), which was received without objection.
The district court entered an order on November 9, 2010, overruling Jelinek's motion. The court overruled West Plains' objections to exhibits 25 and 28. The court found the juror affidavits to be inadmissible. The court found no clear and convincing evidence of prejudicial jury misconduct. We have set forth further details of the court's order ruling on Jelinek's motion in the analysis section below. Jelinek subsequently perfected his appeal to this court.
ASSIGNMENTS OF ERROR
Jelinek asserts, consolidated and restated, that the district court erred in (1) admitting exhibits 19 to 22 into evidence at trial, (2) allowing improper statements by West Plains in its closing argument over objection by Jelinek, (3) refusing to admit the affidavit of juror D.R. into evidence at the hearing on Jelinek's motion for new trial, (4) failing to grant Jelinek's motion for new trial on the grounds that there was juror misconduct and that the verdict was not sustained by the evidence and was contrary to law due to an error in the jury's calculation of damages, and (5) denying Jelinek's request for remittitur in the amount of $24,105.54 to correct the alleged error in the assessment of damages.
STANDARD OF REVIEW
In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. American Cent. City v. Joint Antelope Valley Auth., 281 Neb. 742, __ N.W.2d __ (2011), cert. denied __ U.S. __, 132 S. Ct. 525, __ L. Ed. 2d __. The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of discretion. Richardson v. Children's Hosp., 280 Neb. 396, 787 N.W.2d 235 (2010).
The amount of damages to be awarded is a determination solely for the fact finder, and the fact finder's decision will not be disturbed on appeal if it is supported by the evidence and bears a reasonable relationship to the elements of the damages proved. Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d 433 (2010). An award of damages may be set aside as excessive or inadequate when, and not unless, it is so excessive or inadequate as to be the result of passion, prejudice, mistake, or some other means not apparent in the record. Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011).
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. Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118 (2011). The discretion of a trial court in ruling on a motion for new trial is only the power to apply the statutes and legal principles to all facts of the case; a new trial may be granted only where legal cause exists. Id.
ANALYSIS
Admission of Exhibits 19 to 22.
Jelinek asserts that the district court erred in admitting exhibits 19 (December 2007 demand letter), 20 (cover contract), 21 (January 18, 2008, bid sheet), and 22 (February 2008 letter showing calculation of amount West Plains claims owed by Jelinek) into evidence at trial over his relevancy objections. "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Neb. Rev. Stat. § 27-401 (Reissue 2008).
We note that Jelinek initially argues that the district court erred in admitting exhibit 15, but he has not assigned error to the admission of exhibit 15. Errors argued but not assigned will not be considered on appeal. Shepherd v. Chambers, 281 Neb. 57, 794 N.W.2d 678 (2011). Regardless, we briefly address the admission of exhibit 15 into evidence because Jelinek's arguments that exhibits 19 to 22 were not relevant hinge on his assertion that exhibit 15 was not relevant evidence.
Jelinek testified at trial that he did not agree to the rollover contract. West Plains presented testimony that the rollover contract document was created following standard procedures, that no such document would be created without agreement from the farmer, and that Fastnacht created the document at Rowan's direction after Rowan spoke with Jelinek. Essentially, Jelinek is asking us to resolve the conflicting evidence in his favor and give his testimony weight over that of Fastnacht, something this court will not do. It is for the jury, as trier of the facts, to resolve conflicts in the evidence and to determine the weight and credibility to be given to the testimony of the witnesses. Orduna v. Total Constr. Servs., 271 Neb. 557, 713 N.W.2d 471 (2006). Exhibit 15 was relevant to West Plains' theory.
Exhibits 19 to 22 all relate to West Plains' actions after Jelinek failed to deliver on the rollover contract and are likewise relevant to prove West Plains' theory of the case. We also note that Anderson testified extensively, without objection, about the contents of these four exhibits. Evidence objected to which is substantially similar to evidence admitted without objection results in no prejudicial error. In re Estate of Jeffrey B., 268 Neb. 761, 688 N.W.2d 135 (2004). The district court did not abuse its discretion in admitting these exhibits into evidence over Jelinek's relevancy objection. We note that Jelinek also objected to exhibit 19 on the basis of foundation and hearsay, but he does not argue these bases in his brief on appeal and therefore we do not address these objections further.
Statements During Closing Argument.
Jelinek asserts that the district court erred in allowing improper statements by West Plains in its closing argument over objection by Jelinek. Jelinek argues that a new trial is required because West Plains' counsel, during closing arguments, stated that Rowan was beyond the subpoena power of the court. Neither party called Rowan as a witness. In his affidavit, offered at the hearing on Jelinek's motion for new trial, Rowan stated that he has lived in Gurley, Nebraska, for the last 5½ years and that Gurley is 71 miles from Alliance.
In his closing argument, Jelinek's counsel referred to Rowan's absence at trial and argued that the jury could infer by Rowan's absence that his testimony would not have supported West Plains. The comments made by West Plains' counsel in his rebuttal argument were clearly in response to Jelinek's argument and countered that there were other inferences that could be made by Rowan's absence, a conclusion reached by the district court, in its order overruling Jelinek's motion for new trial. The court concluded that West Plains' counsel was responding to Jelinek's closing argument and noted that per Neb. Rev. Stat. § 25-1142 (Reissue 2008), a new trial is warranted only when alleged errors materially affect the substantial rights of the party. The court reasoned that the comments by the parties' counsel about Rowan during closing argument were not such that they materially affected a substantial right of either party. The court noted that the jurors were admonished at the start of trial and in the final jury instructions that counsels' comments were not evidence.
Jelinek made an objection during the course of West Plains' rebuttal argument, but his objection did not address the assertions that Rowan was no longer an employee of West Plains and might be beyond the court's subpoena power. Jelinek did not object until West Plains' counsel stated: "Now, . . . Fastnacht is also beyond the Court's subpoena power, but he agreed to sit for his deposition. And his deposition stated that he talked to . . . Jelinek and he created the agreement pursuant to company standards after . . . Rowan had talked[.]" Jelinek objected that West Plains' counsel was "mischaracteri[z]ing what . . . Fastnacht testified to." The court overruled the objection, stating that the jury could rely on its memory for the testimony of all witnesses. Clearly, Jelinek's objection did not address any alleged misconduct in the statements of West Plains' counsel about Rowan's absence at trial. Where it is claimed that an attorney is guilty of misconduct in arguing a case to a jury, and it is desired to raise a question on that point for decision in an appellate court, it is necessary that the objection be made to the trial court at the time and an adverse ruling had thereon and that the same be made a part of the record by a proper bill of exceptions. Marple v. Sears, Roebuck & Co., 244 Neb. 274, 505 N.W.2d 715 (1993). The district court did not abuse its discretion in failing to grant a new trial on the basis of statements made during closing argument.
Admission of Juror Affidavits.
Jelinek asserts that the district court erred in refusing to admit the affidavit of juror D.R. into evidence at the hearing on Jelinek's motion for new trial. He also alleges that a new trial should have been granted as the amount of the verdict was the result of juror misconduct. Initially, we note that although Jelinek's arguments address both juror affidavits, he only assigned error to the admission of juror D.R.'s affidavit, and we again caution Jelinek that errors argued but not assigned will not be considered on appeal. Shepherd v. Chambers, 281 Neb. 57, 794 N.W.2d 678 (2011). Juror D.R.'s affidavit addressed, inter alia, statements made by jurors during the course of their deliberations, jurors' interpretation of the evidence, the manner in which jurors calculated damages, and jurors' voting patterns during their deliberations.
Neb. Rev. Stat. § 27-606(2) (Reissue 2008) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him indicating an effect of this kind be received for these purposes.
Section 27-606(2) permits use of a juror's affidavit to establish that the jury considered prejudicial information emanating from a source other than evidence presented at trial. Loving v. Baker's Supermarkets, 238 Neb. 727, 472 N.W.2d 695 (1991). Section 27-606(2) prohibits a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations, which enter into the verdict. Loving, supra. Section 27-606(2) does not equate with, or govern, grounds for a new trial, but indicates and governs the character or type of information properly used in determining whether juror misconduct has occurred in reference to a verdict. Loving, supra. Since § 27-606(2) precludes and excludes testimony, including a juror's affidavit, concerning motives, methods, misunderstanding, thought processes, or discussions by a jury in reaching a verdict, § 27-606(2) also precludes juror testimony to establish that extraneous prejudicial information actually entered into the verdict. Loving, supra.
In Rahmig v. Mosley Machinery Co., 226 Neb. 423, 455-57, 412 N.W.2d 56, 77-78 (1987), the Nebraska Supreme Court stated:
In Neb. Evid. R. 606(2), the important phrase is "extraneous prejudicial information," and within that phrase the crucial word is extraneous, which means "existing or originating outside or beyond: external in origin: coming from the outside . . . brought in, introduced, or added from an external source or point of origin." [Citation omitted.]
. . . .
. . . Neb. Evid. R. 606(2) permits use of a juror's affidavit to establish that the jury considered prejudicial information emanating from a source other than evidence presented at trial. However, it is just as clear that Neb. Evid. R. 606(2) prohibits a juror's affidavit to impeach a verdict on the basis of jury motives, methods, misunderstanding, thought processes, or discussions during deliberations, which enter into the verdict.
In excluding the juror affidavits from evidence, the district court found that neither affidavit addressed "extraneous" information or improper outside influence. We agree. The affidavits offered by Jelinek related to the jurors' thought processes, discussions, and perhaps misunderstandings in calculating damages. The affidavits did not reflect "extraneous prejudicial information" entering into the verdict. The court properly excluded juror D.R.'s affidavit offered to impeach the verdict.
New Trial/Juror Misconduct.
Jelinek alleges that a new trial should have been granted based on jury misconduct. He relies on the juror affidavits, but we have already determined that juror D.R.'s affidavit was properly excluded and Jelinek did not assign error to the exclusion of the other affidavit.
An application for new trial may properly be based upon allegations of misconduct of the jury. Poppe v. Siefker, 274 Neb. 1, 735 N.W.2d 784 (2007). In a motion for new trial, allegations of misconduct by jurors must be substantiated by competent evidence. Id. In a motion for new trial based on juror misconduct, the misconduct complained of must relate to a disputed matter that is relevant to the issues in the case and must have influenced the jurors in arriving at the verdict. Id. In order for a new trial to be ordered because of juror misconduct, the party claiming the misconduct has the burden to show by clear and convincing evidence that prejudice has occurred. Id. Clear and convincing evidence is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved. Id. Extraneous material or information considered by a jury may be deemed prejudicial without proof of actual prejudice if the material or information relates to an issue submitted to the jury and there is a reasonable possibility that the extraneous material or information affected the verdict to the detriment of a litigant. Id. The trial court's ruling on a question involving jury misconduct will not be disturbed on appeal absent an abuse of discretion. Id.
The district court found that the record did not contain clear and convincing evidence that prejudicial jury misconduct occurred. We agree. The court stated that even assuming the truth of the proffered affidavits, a juror's intradeliberational statements do not constitute extraneous information within the meaning of § 27-606(2). See Leavitt ex rel. Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999) (juror's intradeliberational statements, when based on personal knowledge not directly related to litigation at issue, do not constitute extraneous information within the meaning of § 27-606(2)). The court did not abuse its discretion in failing to grant a new trial on the basis of juror misconduct.
Calculation of Damages.
Jelinek asserts that the district court erred in failing to grant his motion for new trial on the grounds that the verdict was not sustained by the evidence and was contrary to law due to an error in the jury's calculation of damages.
When a seller fails to make delivery of goods, the buyer may "cover" by making in good faith and without unreasonable delay any reasonable purchase of goods in substitution for those due from the seller. Neb. U.C.C. §§ 2-711 and 2-712 (Reissue 2001). Damages are "the difference between the cost of cover and the contract price together with any incidental or consequential damages . . . but less expenses saved in consequence of the seller's breach." Neb. U.C.C. § 2-712 (Reissue 2001). Incidental and consequential damages may include, among other things, transportation costs. Neb. U.C.C. § 2-715 (Reissue 2001).
The jury was instructed:
West Plains is entitled to recover the following damages:
1. The difference between the market price at the time when West Plains learned of the breach of contract and the contract price (If you find that the contract was ever modified, then damages would be the difference between the market price at the time West Plains learned of the breach of the modified contract and the contract price.); and
2. Plus any expenses West Plains reasonably incurred as a result of the breach; and
3. Minus any expenses West Plains saved as a result of the breach.
The district court found that a fact question existed as to the date West Plains learned of the breach of contract, and we agree. As discussed above, the evidence was conflicting with respect to the creation of the rollover contract and thus with respect to when the breach occurred. Jelinek argues that the breach occurred in November 2006 and that the cost of cover was, at most, one cent. West Plains asserts that the breach occurred when Jelinek failed to deliver under the rollover contract in the fall of 2007 and when it was required to cover the contract in January 2008. There was evidence in the record that the cost to West Plains to cover the contract was either $4.67, $4.94, or $4.98 per bushel. In addition, there was some evidence of expenses incurred or saved by West Plains as a result of Jelinek's breach. We conclude that the amount of damages awarded is supported by the evidence and bears a reasonable relationship to the elements of the damages proved. Accordingly, the district court did not abuse its discretion in failing to grant a new trial on the basis of the damages calculation.
Request for Remittitur.
Jelinek asserts that the district court erred in denying his request for remittitur in the amount of $24,105.54 to correct the alleged error in the assessment of damages. He relies in part on the juror affidavits, which were excluded by the court.
Where a verdict is excessive, but not so much as to indicate passion or prejudice on the part of the jury, the error may be corrected by remittitur if the excess can be estimated with reasonable certainty. Nelson-Holst v. Iverson, 239 Neb. 911, 479 N.W.2d 759 (1992). If the amount of the verdict is supported by some competent evidence, then it cannot be said to have been arrived at by the jury through passion and prejudice, and the verdict cannot be set aside on that ground, but a remittitur can be ordered when the clear preponderance of the evidence shows the verdict to be excessive. Pearse v. Loup River Public Power Dist., 137 Neb. 611, 290 N.W. 474 (1940). Given the conflicting evidence about the creation of the rollover contract and when West Plains learned of the breach, as well as the fact that the jury may have adjusted its calculation for any expenses incurred or saved by West Plains, we cannot say that a clear preponderance shows the verdict to be excessive. The district court did not err in denying Jelinek's request for remittitur.
CONCLUSION
The district court did not abuse its discretion in the evidentiary rulings complained of or in denying Jelinek's motion for new trial. The court did not err in denying Jelinek's request for remittitur.
AFFIRMED.