R & D Properties v. Altech Constr. Co.

based on a ground or reason different from that assigned by the
trial court—an appellate court will affirm.22 Here, the district
court was correct in overruling the plea in bar, but it should
have done so under the principles of Humbert and Johnson
instead of addressing the merits of a double jeopardy claim
which does not yet exist. We express no opinion as to whether
the district court was correct in concluding that involuntary
manslaughter and motor vehicle homicide are not the “same
offense” for purposes of a double jeopardy analysis.
CONCLUSION
For the reasons discussed, we affirm the order of the dis-
trict court overruling Huff’s plea in bar and remand for fur-
ther proceedings.
A ffirmed And remAnded for
further proceedings.
22 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
r & d properties , LLc, AppeLLAnt, v. ALtech
construction co., defendAnt And third -pArty
pLAintiff, And thunn construction, inc.,
third -pArty defendAnt, AppeLLees.
776 N.W.2d 493
Filed December 24, 2009. 	No. S-09-289.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not
involve a factual dispute is determined by an appellate court as a matter of law.
2. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.
3. Judgments: Appeal and Error. An appellate court reviews questions of law
independently of the lower court’s conclusion.
4. Statutes. To the extent there is a conflict between two statutes on the same sub-
ject, the specific statute controls over the general statute.
5. Statutes: Legislature: Public Policy. It is the Legislature’s function through the
enactment of statutes to declare what is the law and public policy.
Appeal from the District Court for Douglas County: J russeLL
derr, Judge. Reversed and remanded with directions.
74 	279 NebRASkA RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:48 AM CST

Gregory C. Scaglione and brenda George, of koley Jessen,
p.C., L.L.O., for appellant.
Michael W. pirtle and Francie C. Riedmann, of Gross &
Welch, p.C., L.L.O., for appellee Altech Construction Co.
heAvicAn, 	c.J., 	Wright, 	connoLLy, 	gerrArd, 	stephAn,
mccormAck , and miLLer-L ermAn, JJ.
heAvicAn, c.J.
FACTUAL bACkGROUND
The underlying dispute in this case involves the construc-
tion of an office building in the “Altech business park” in
southwest Omaha, Nebraska. R & D properties, LLC (R & D),
plaintiff, entered into a contract with Altech Construction Co.
(Altech) for the construction. The building was completed, and
R & D leased space in the building to various tenants. A tenant
complained about a musty odor in its space, and eventually,
mold growth was discovered in that space. R & D alleges that
the mold was caused by excessive moisture in the building,
which was in turn caused by defects in the design or construc-
tion of the building.
R & D sued Altech and Design Associates, Inc., the building
architect, on several theories of recovery, including breach of
warranty, negligence, and fraudulent misrepresentation. R & D
pled damages composed of damage to the building, costs of
retaining contractors to assess and repair the building, general
damages, prejudgment interest, administrative costs, attorney
fees, and litigation expenses.
Altech 	filed 	a 	third-party 	complaint 	against 	Thunn
Construction, Inc., a subcontractor on the project. Altech
alleged that the deficiencies alleged by R & D were caused
by Thunn Construction’s work on the foundation and masonry
of the building, and that Thunn Construction had agreed to
indemnify Altech for claims and damages assessed against
Altech by reason of its work. Altech also filed a cross-
complaint against Design Associates. but the district court
granted Design Associates’ motion for summary judgment with
respect to R & D, and Altech dismissed its cross-complaint
against 	Design 	Associates 	without 	prejudice. 	Thus, 	two
R & D pROpeRTIeS v. ALTeCH CONSTR. CO. 	75
Cite as 279 Neb. 74

claims remained: R & D against Altech, and Altech against
Thunn Construction.
The case went to a jury trial on R & D’s claim against
Altech. The jury returned a verdict for R & D in the amount
of $520,303.32. Altech filed a motion for judgment not-
withstanding the verdict, remittitur, or a new trial. Specifically,
Altech argued that the court had erred in permitting the jury
to consider evidence of interest paid by R & D on loans used
to pay for the costs of repairing the building. Altech claimed
that such damages were not recoverable under Nebraska law
and that R & D had not pled that element of damages in
its complaint.
The district court agreed with Altech that R & D’s alleged
interest damages were disclosed late. The court also concluded
that interest paid on borrowed funds could not be recovered as
damages for breach of contract, at least not above the statutory
judgment rate. And because the determination of damages was
intertwined with the extent of damage to the building and the
necessity of all the repairs to the building, the court ordered a
new trial on all issues. R & D appeals. We granted R & D’s
petition to bypass. We reverse the decision and remand the
cause to the district court.
ASSIGNMeNTS OF eRROR
On appeal, R & D assigns that the district court erred in (1)
granting Altech’s motion for new trial and vacating the judg-
ment in favor of R & D and (2) overruling R & D’s application
for an award of prejudgment statutory interest and costs and
vacating such requested award. Alternatively, R & D argues
that the trial court erred in (1) not reducing R & D’s judg-
ment by $94,395.97 to $425,907.35 to adjust for the reduc-
tion in interest and (2) not limiting the new trial to the issue
of damages.
STANDARD OF ReVIeW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law.1
1 Kilgore v. Nebraska Dept. of Health & Human Servs., 277 Neb. 456, 763
N.W.2d 77 (2009).
76 	279 NebRASkA RepORTS

[2] 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.2
[3] An appellate court reviews questions of law indepen-
dently of the lower court’s conclusion.3
ANALYSIS
Jurisdictional Issue.
before reaching the legal issues presented for review, it is
the duty of an appellate court to settle jurisdictional issues pre-
sented by a case.4 And this case first presents a jurisdictional
issue, as Altech’s third-party claim against Thunn Construction
is still outstanding.
The jurisdictional issue in this case presents a conflict
between Neb. Rev. Stat. §§ 25-1315(1) and 25-1315.03 (Reissue
2008). Section 25-1315(1) provides:
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,
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.
In this case, the order granting a new trial was not certified as
a final judgment under § 25-1315(1). Altech argues that as a
2 Lacey v. State, 278 Neb. 87, 768 N.W.2d 132 (2009).
3 Anderson v. Houston, 277 Neb. 907, 766 N.W.2d 94 (2009).
4 Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
R & D pROpeRTIeS v. ALTeCH CONSTR. CO. 	77
Cite as 279 Neb. 74

result, the order is not appealable until Altech’s claim against
Thunn Construction is disposed of.
R 	& 	D 	disagrees 	and 	relies 	on 	§ 	25-1315.03, 	which
provides:
An order entering judgment [notwithstanding the ver-
dict] or granting or denying a new trial is an appealable
order. The time for and manner of taking such appeal
shall be as in an appeal from a judgment, decree, or
final order of the district court in a civil action. On
appeal from an order granting a new trial, upon a review
of an order denying a new trial in the action in which
such motion was made, or on appeal from the judg-
ment, the appellate court may order and direct judgment
to be entered in favor of the party who was entitled to
such judgment.
R & D argues that § 25-1315.03 takes precedence here,
such that the order granting Altech a new trial is appealable
despite the fact that the judgment was not certified under
§ 25-1315(1).
[4] To the extent there is a conflict between two statutes on
the same subject, the specific statute controls over the general
statute.5 In this case, we have two statutes dealing with the final-
ity and appealability of the order of a district court. The subject
matter of § 25-1315.03 is limited to orders entering a judgment
notwithstanding the verdict or granting or denying a new trial;
we are presented with an order granting a new trial. On the
other hand, § 25-1315(1) contains no language with regard to
orders such as this. We therefore conclude that § 25-1315(1)
is of more general applicability and that § 25-1315.03 is more
specific. The more specific statute, § 25-1315.03, controls in
this case. As such, the order of the district court granting a new
trial is final and appealable.
Recoverability of Interest Paid as Damages.
On appeal, R & D argues that the district court erred in
concluding it was not entitled to recover, as an element of
damages, the interest it paid on funds it borrowed to make
5 Sack v. Castillo, 278 Neb. 156, 768 N.W.2d 429 (2009).
78 	279 NebRASkA RepORTS

repairs to its property during the pendency of this litigation.
This court has never addressed whether interest paid on bor-
rowed funds can be recovered as damages, though the issue
has previously been presented to us.6 On that previous occa-
sion, we declined to reach the issue because we found that the
proof presented regarding damages in that case was deficient.
We find no such deficiency in this case and thus are squarely
presented with whether such interest is recoverable. We con-
clude that because the Legislature has seen fit to provide for
prejudgment interest in Neb. Rev. Stat. § 45-103.02 (Reissue
2004), the type of recovery sought by R & D in this case is
not permitted.
[5] In support of its argument that it should be entitled to
recover the interest paid on borrowed funds, R & D contends
that “[w]ithout an award of the interest expense, [R & D] is not
made whole or compensated for losses it sustained.”7 but the
purpose behind prejudgment interest statutes is to “ensure that
an injured party is fully compensated.”8 It is the Legislature’s
function through the enactment of statutes to declare what is
the law and public policy.9 Where a mechanism with the spe-
cific purpose of fully compensating a litigant exists, we decline
to provide a remedy beyond that established by the Legislature.
We therefore conclude that the district court did not err in
concluding it had erred when it initially admitted the evidence
relating to the interest paid. We note that this conclusion is
consistent with other jurisdictions that for various reasons have
reached this same result.10
6 See Union Ins. Co. v. Land and Sky, Inc., 253 Neb. 184, 568 N.W.2d 908
(1997).
7 brief for appellant at 16.
8 Milwaukee v. Cement Div., National Gypsum Co., 515 U.S. 189, 195, 115
S. Ct. 2091, 132 L. ed. 2d 148 (1995).
9 In re Trust Created by Nixon, 277 Neb. 546, 763 N.W.2d 404 (2009).
10 Cencula v. Keller, 180 Ill. App. 3d 645, 536 N.e.2d 93, 129 Ill. Dec. 409
(1989); Parkside Mobile Estates v. Lee, 294 N.W.2d 327 (Minn. 1980).
but see, St. Paul Structural Steel v. ABI Contracting, 364 N.W.2d 83 (N.D.
1985) (decided under Minnesota law); Metropolitan Transfer v. Design
Structures, 328 N.W.2d 532 (Iowa App. 1982).
R & D pROpeRTIeS v. ALTeCH CONSTR. CO. 	79
Cite as 279 Neb. 74

Though we conclude the district court was correct in deter-
mining that the interest evidence was inadmissible, we agree
with R & D that the district court erred in granting a new trial.
In its motion for remittitur, Altech requested that the verdict be
reduced by $93,780.54; R & D now stipulates that the inter-
est costs were actually $94,395.97. Given this agreement, we
conclude that Altech’s motion for remittitur should have been
granted and that R & D’s judgment should have been reduced
by $94,395.97 to $425,907.35.
Prejudgment Interest.
Finally, R & D argues that it is entitled to prejudgment
interest on the judgment, less the interest erroneously admitted.
Section 45-103.02(1) provides that
interest as provided in section 45-103 shall accrue on the
unpaid balance of unliquidated claims from the date of
the plaintiff’s first offer of settlement which is exceeded
by the judgment until the entry of judgment if all of the
following conditions are met:
(a) The offer is made in writing upon the defendant by
certified mail, return receipt requested, to allow judgment
to be taken in accordance with the terms and conditions
stated in the offer;
(b) The offer is made not less than ten days prior to the
commencement of the trial;
(c) A copy of the offer and proof of delivery to the
defendant in the form of a receipt signed by the party or
his or her attorney is filed with the clerk of the court in
which the action is pending; and
(d) The offer is not accepted prior to trial or within thirty
days of the date of the offer, whichever occurs first.
A review of the record demonstrates that R & D complied
with all of the requirements of § 45-103.02(1). As such, R & D
is entitled to an award of prejudgment interest. We remand this
cause to the district court for a determination of that prejudg-
ment interest.
CONCLUSION
As an initial matter, we conclude that this court has jurisdic-
tion over this appeal under § 25-1315.03. We also conclude
80 	279 NebRASkA RepORTS

that the district court was correct in concluding the interest
paid on the money borrowed by R & D was not recoverable.
However, we conclude that the district court erred in grant-
ing a new trial on all issues and instead should have granted
Altech’s motion for remittitur. Finally, we conclude that R & D
was entitled to prejudgment interest on the jury award less
the amount of the remittitur. We therefore reverse the district
court’s grant of a new trial and remand the cause with direc-
tions to grant Altech’s motion for remittitur and to calculate
prejudgment interest.
reversed And remAnded With directions.
Wright, J., not participating in the decision.
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