Jeffres v. Countryside Homes of Lincoln, Inc.

367 N.W.2d 728, 220 Neb. 26, 1985 Neb. LEXIS 1038
CourtNebraska Supreme Court
DecidedMay 17, 1985
Docket84-382
StatusPublished
Cited by39 cases

This text of 367 N.W.2d 728 (Jeffres v. Countryside Homes of Lincoln, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jeffres v. Countryside Homes of Lincoln, Inc., 367 N.W.2d 728, 220 Neb. 26, 1985 Neb. LEXIS 1038 (Neb. 1985).

Opinion

*27 Per Curiam.

The appellee, Darlene Jeffres, brought this action to recover damages to her mobile home caused by the appellant’s, Countryside Homes of Lincoln, Inc.’s, negligent conduct when it moved the home from its premises pursuant to a writ of restitution. After a bench tried judgment was entered for the appellee. In Jeffres v. Countryside Homes, 214 Neb. 104, 333 N.W.2d 754 (1983), this court affirmed the district court’s order as to the appellant’s liability. However, as to the issue of damages, this court found the evidence insufficient and remanded the cause for a rehearing. Specifically, this court stated that

our review of the record has convinced us that the testimony presented with reference to the amount of damages to the mobile home in question leaves much to be desired, and that issue should be remanded for rehearing in the court below. For example, the evidence is clear that when appellee purchased the motor home in question it contained a substantial amount of furniture. The record is also clear that appellee removed all of such furniture before the home was sold at sheriff’s sale, and there is no evidence in the record as to the value of the items removed. If these items had any value at all (and they undoubtedly did), the appellant should be given credit for such value, rather than having the damages determined by the application of the price at the sale of $900 only.

Id. at 124, 333 N.W.2d at 764-65.

After a new trial on the issue of damages, the district court for Lancaster County, Nebraska, awarded the appellee $5,145 plus interest on that amount at the legal rate.

Basically, the errors assigned by the appellant raise two issues for this court’s review: (1) Whether the trial court erred in its findings as to the fair market value of the mobile home both before and after it was damaged, and as to the fair market value of the personal property removed from the home; and (2) Whether the trial court erred in its award of prejudgment ■interest.

At the rehearing the trial judge, sitting without a jury, received the bill of exceptions from the original trial into *28 evidence. The evidence therein demonstrates that the appellee purchased the mobile home on June 27,1975, for $9,832.50 and that it was damaged by the appellant on August 29, 1979. Thereafter, it was sold at a police sale on March 1, 1980, for $900.

Joel Phipps, a former vice president of Commonwealth Savings, testified that the day before the mobile home was damaged, $7,324.54 remained outstanding on the loan for the home; he further testified that the value of a mobile home should be approximately equal to the unpaid balance of the loan. Phipps also indicated that the Kelley Blue Book value of the home was $7,125. In Phipps’ opinion, after the mobile home was damaged it was not worth in excess of $1,000. Additionally, Kenneth Ferguson, owner of a mobile home sale and repair business, testified that upon the request of Commonwealth Savings Co., he inspected the home after it was damaged and concluded “it wasn’t salvageable.”

At the rehearing Robert Dula, a real estate broker, testified that he had inspected the mobile home on or about January 11, 1979, and as a result of such inspection, he listed the home for sale for $9,975. Also, at the rehearing, appellee, the owner of the mobile home, testified that immediately before it was damaged it was worth $7,000 to $8,000.

With regard to the furniture removed from the mobile home prior to the salvage sale, appellee testified as to the value of each item so removed; the district court totaled the values, which, according to its calculations, amounted to $655.

The evidence presented by the appellant was in substantial conflict with that offered by the appellee.

In its order after rehearing, the district court found that the mobile home was valued at $7,000 immediately before appellant damaged it; that it was valued at $1,200 immediately afterwards; and that appellee had removed $655 worth of furniture and personal property.

When error exists only as to the issue of damages and the judgment is in other respects free from error, and it is clear that no injustice will result from doing so, a reviewing court may, when remanding a cause for a new trial, limit the new trial to such issue. O’Neil v. Behrendt, 212 Neb. 372, 322 N.W.2d 790 *29 (1982).

The trial court having the issue of damages before it for a new trial on that issue, it was within the sound discretion of the trial court to decide the issue on evidence contained in the record already made at the first trial, or to take additional evidence or to try the case de novo. Botsch v. Leigh Land Co., 205 Neb. 401, 288 N.W.2d 31 (1980), appeal after remand 210 Neb. 290, 313 N.W.2d 696 (1981). In light of this court’s previous finding that the evidence as to damages left “much to be desired,” it was not inconsistent with the opinion directing remand, and it was within the trial court’s discretion, to receive the record from the first trial and to receive new evidence.

Appellant argues, however, that evidence of the original purchase price of the mobile home, the sale price of the mobile home at the sheriff’s sale, and the principal balance of a mortgage against the mobile home was improperly received under the precedent established in Neill v. McGinn, 175 Neb. 369, 122 N.W.2d 65 (1963). In Neill the plaintiff’s automobile was converted by the defendant and subsequently wrecked. The only evidence offered by the plaintiff to prove the value of the automobile before the taking and the salvage value thereafter was the purchase price and the sale price of the salvage, respectively. This court held that those prices “in no way tended to prove the proper measure of plaintiff’s damage in this cause. ... It is obvious that neither the purchase price nor the amount received as salvage was material to show the reasonable market value of the automobile before and after the injury.” Id. at 373, 122 N.W.2d at 68.

In Torrey v. Torrey, 206 Neb. 485, 491, 293 N.W.2d 402, 406 (1980), this court reiterated the rule:

In a case tried to the court, either in law or in equity, the presumption obtains that the trial court, in arriving at its decision, considered only such evidence as was competent and relevant. This court will not reverse a case so tried because other evidence was admitted, if there is sufficient competent and relevant evidence in the record to sustain the judgment.

See, also, Kockrow v. Kockrow, 191 Neb.

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Cite This Page — Counsel Stack

Bluebook (online)
367 N.W.2d 728, 220 Neb. 26, 1985 Neb. LEXIS 1038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jeffres-v-countryside-homes-of-lincoln-inc-neb-1985.