InterCall, Inc. v. Egenera, Inc.

INTERCALL, INC. v. EGENERA, INC. 	801
Cite as 284 Neb. 801
the assistance was performed at Pedersen’s request, in reliance
on Pedersen’s representation that he had made arrangements
to prevent liability under the 107th Avenue lease, and without
requirement that Pedersen breach any existing contractual rela-
tionships. As for Lund’s liability for inducing the breach of a
lease under § 81-885.24(13), we do not reach the issue because
appellants’ arguments for an implied private right of action
focus solely on whether the statute imposed a duty in tort—a
distinct and separate issue. These holdings make it unnecessary
to consider appellants’ remaining assignments of error. Because
we either do not reach appellants’ assignments of error or find
them to be without merit, we affirm the judgment of the dis-
trict court.
A ffirmed.
mccormAck and miller-lermAn, JJ., not participating.
intercAll, inc., AppellAnt, v.
egenerA, inc., Appellee.
824 N.W.2d 12
Filed December 7, 2012. 	No. S-11-1003.
1. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to
the discretion of the trial court, and an appellate court will not disturb the trial
court’s decision absent an abuse of discretion.
2. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
3. Verdicts: Appeal and Error. A civil verdict will not be set aside where evidence
is in conflict or where reasonable minds may reach different conclusions or infer-
ences, as it is within the jury’s province to decide issues of fact.
4. Motions for New Trial: Appeal and Error. An appellate court reviews a denial
of a motion for new trial or, in the alternative, to alter or amend the judgment, for
an abuse of discretion.
5. Contracts: Fraud. A contract is voidable by a party if his or her manifestation
of assent is induced by either a fraudulent or a material misrepresentation by the
other party upon which he or she is justified in relying.
6. ____: ____. A misrepresentation induces a party’s manifestation of assent if it
substantially contributes to the party’s decision to manifest his or her assent.
7. ____: ____. A party who has been induced to enter into a contract by a material
misrepresentation has, upon discovery of such misrepresentation, an election of
remedies: either to affirm the contract and sue for damages or to disaffirm the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

802 	284 NEBRASKA REPORTS
contract and be reinstated to the induced party’s position which existed before
entry into the contract.
8. Contracts: Fraud: Restitution. Where the induced party to a contract elects to
disaffirm or avoid the transaction, it may claim restitution.
9. Torts: Contracts: Fraud. Misrepresentation or nondisclosure may render a
transaction voidable even if there would be no tort cause of action for deceit.
10. Pleadings. A district court’s denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad faith on the part of
the moving party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated.
11. 	Pleadings: Proof. The burden of proof of prejudice is on the party opposing
amendment of a pleading. Prejudice does not mean inconvenience to a party, but
instead requires that the nonmoving party show that it was unfairly disadvantaged
or deprived of the opportunity to present facts or evidence which it would have
offered had the amendments been timely.
12. Actions: Pleadings: Words and Phrases. A cause of action consists of the fact
or facts which give one a right to judicial relief against another; a theory of
recovery is not itself a cause of action. Thus, two or more claims in a complaint
arising out of the same operative facts and involving the same parties constitute
separate legal theories, of either liability or damages, and not separate causes
of action.
13. Records: Appeal and Error. It is incumbent upon the appellant to present a
record supporting the errors assigned; absent such a record, an appellate court
will affirm the lower court’s decision regarding those errors.
14. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is to say, when an issue should be decided as a
matter of law.
15. Contracts: Fraud. An essential element of actionable false misrepresentation is
justifiable reliance on the representation.
16. Fraud. Whether a party’s reliance upon a misrepresentation was reasonable is a
question of fact.
17. ____. Justifiable reliance must be determined on a case-by-case basis. In deter-
mining whether an individual reasonably relied on a misrepresentation, courts
consider the totality of the circumstances, including the nature of the transaction;
the form and materiality of the representation; the relationship of the parties; the
respective intelligence, experience, age, and mental and physical condition of the
parties; and their respective knowledge and means of knowledge.
18. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
19. ____: ____: ____. To establish reversible error from a court’s failure to give
a requested jury instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2) the tendered instruc-
tion was warranted by the evidence, and (3) the appellant was prejudiced by the
court’s failure to give the requested instruction.

INTERCALL, INC. v. EGENERA, INC. 	803
Cite as 284 Neb. 801
20. Jury Instructions: Appeal and Error. If the instructions given, which are taken
as a whole, correctly state the law, are not misleading, and adequately cover the
issues submissible to a jury, there is no prejudicial error concerning the instruc-
tions and necessitating a reversal.
21. Contracts: Fraud. A material misrepresentation may be a basis for avoiding a
contract, even if it resulted from an honest mistake.
Appeal from the District Court for Douglas County: thomAs
A. otepkA, Judge. Affirmed.
Patrick R. Guinan, of Erickson & Sederstrom, P.C., L.L.O.,
for appellant.
Joel E. Feistner, of Locher, Pavelka, Dostal, Braddy &
Hammes, L.L.C., for appellee.
heAvicAn, c.J., Wright, connolly, stephAn, mccormAck,
miller-lermAn, and cAssel, JJ.
stephAn, J.
This case involves a dispute arising from a contractual
relationship between InterCall, Inc., and Egenera, Inc. After
Egenera failed to pay for certain services InterCall provided
pursuant to a contract, InterCall brought an action in the dis-
trict court for Douglas County. Egenera asserted affirmative
defenses and a counterclaim to recover what it claimed to be
overpayments. InterCall appeals from a judgment in favor of
Egenera on the counterclaim. We affirm.
I. BACKGROUND
1. fActs
Egenera is a Delaware corporation with its principal place of
business in Massachusetts. It is engaged in the sale of business
software and routinely uses audioconferencing services pro-
vided by outside vendors for both interaction with its custom-
ers and internal communication and training.
Prior to March 2007, Egenera obtained audioconferenc-
ing services from Raindance Communications (Raindance).
Raindance charged Egenera $.05 per minute for conference call
service, with no minimum charge. Raindance was subsequently
acquired by InterCall, a Delaware corporation conducting busi-
ness in Nebraska and a provider of audio, Web, and video

804 	284 NEBRASKA REPORTS
conferencing services. After this acquisition, Egenera could
have continued its business relationship with Raindance for
some period of time, but eventually Raindance’s conferencing
“platform” would have ended and Egenera would have been
required to obtain audioconferencing services from InterCall or
some other vendor.
In November or December 2006, Richard Visconte, a global
account executive for InterCall, contacted Terry Lehane, the
global technical director of customer service for Egenera, to
explain the conferencing service platform offered by InterCall.
Visconte and Lehane discussed pricing for audio and Web con-
ferencing. In January 2007, Visconte told Lehane that InterCall
could provide audioconferencing services at a rate of $.07 per
minute. Lehane rejected the offer because it was more than the
rate charged by Raindance. Lehane was satisfied with the serv-
ice provided by Raindance and with its pricing structure, and
he was not interested in doing business with InterCall unless
it offered a better price and features than Egenera received
from Raindance.
Visconte was then given permission by a regional vice
president at InterCall to offer Egenera the same rate it had paid
Raindance, $.05 per minute, for the audioconferencing serv-
ices. In an e-mail message to Lehane, Visconte stated that he
had been able to “talk [InterCall’s regional vice president] into
honoring your current Raindance rate of .05 cents and roll you
into InterCall’s [program] like we talked about, which is great
news!” Relying upon this representation, Lehane agreed to the
proposal. On behalf of Egenera, Lehane executed a service
agreement with InterCall on March 1, 2007.
The service agreement provided for a rate of $.05 per min-
ute for audioconferencing in the continental United States,
with a “Monthly Volume Discount” and a “Minimum Annual
Commitment” of $44,000 for all services. The agreement fur-
ther provided:
BY SIGNING BELOW, EACH PARTY ACKNOWL-
EDGES AND AGREES THAT: UNLESS INDICATED
OTHERWISE, SERVICES ARE CHARGED BY MUL-
TIPLYING ALL INBOUND OR OUTBOUND LEGS
OF ALL CONFERENCES BY THE APPLICABLE PER

INTERCALL, INC. v. EGENERA, INC. 	805
Cite as 284 Neb. 801
MINUTE 	RATE; 	SERVICE 	FEATURES, 	FEES 	OR
SURCHARGES NOT LISTED HEREIN, INCLUDING
CONFERENCE LEGS TO OR FROM A LOCATION
OUTSIDE 	THE 	CONTINENTAL 	U.S. 	WILL 	BE
CHARGED AT INTERCALL’S STANDARD RATES;
CUSTOMER MAY OBTAIN INTERCALL’S STANDARD
RATES 	THROUGH 	CUSTOMER’S 	WEB 	ACCOUNT
OR THROUGH CUSTOMER’S SALES OR ACCOUNT
REPRESENTATIVE; SUBJECT TO THE TERMS OF
THIS AGREEMENT, ANY 	RATES 	INDICATED 	IN
THE RATE INFORMATION OF THIS AGREEMENT
WILL REMAIN IN EFFECT FOR THE TERM OF THIS
AGREEMENT; AND IT HAS READ AND AGREES TO
BE BOUND BY THIS AGREEMENT, INCLUDING THE
TERMS AND CONDITIONS ATTACHED HERETO.
(Emphasis supplied.)
The service agreement also provided: “Customer must notify
InterCall of any disputed charges within thirty (30) days from
the date of the invoice, otherwise Customer hereby agrees
to such charges and InterCall will not be subject to mak-
ing adjustments.”
The dispute here involves a $15 “conference minimum
charge” which was not mentioned in the service agreement but
was included in InterCall’s standard rate sheet. Visconte testi-
fied that he was not aware of the conference minimum charge
and that he never told Lehane about it during the negotiations
which led to the execution of the service agreement. The
agreement did not mention minimum charges, nor did it refer-
ence a Web site where information about additional charges
could be obtained. InterCall’s standard rates are updated on a
monthly basis in a standard rate agreement which is typically
not attached to service agreements because of the frequency
of change. Any of InterCall’s customers can obtain a copy of
the standard rate sheet through the customer’s Web account
or by contacting a customer representative. No employee of
Egenera asked Visconte to provide a copy of InterCall’s stan-
dard rate sheet.
Egenera received and paid invoices for audioconferenc-
ing services provided by InterCall from March 2007 until

806 	284 NEBRASKA REPORTS
September 2008. The invoices were processed by employees
in Egenera’s accounts payable department who had not been
involved in negotiating the service agreement with InterCall. In
the fall of 2008, an Egenera employee reviewed these invoices
as a part of the company’s budget process. During this review,
the employee noticed that the invoices reflected billing for con-
ference minimum charges, which he considered to be unusual
and not part of the contract. For example, a 3-minute call at
$.05 per minute totaled $.15, but a charge of $14.85 was added
to make the total charge $15. The charges were brought to the
attention of Kevin Kerrigan, Egenera’s chief financial officer,
who reviewed the service agreement and found no reference to
a minimum charge. Kerrigan ultimately determined that dur-
ing the period from March 2007 to September 2008, Egenera
paid InterCall a total of $453,684.25 for audioconferencing
services, of which $104,652.96 represented conference mini-
mum charges.
Kerrigan contacted InterCall and demanded a refund of this
amount. InterCall agreed to give Egenera a credit for the mini-
mum charges on its October 1, 2008, invoice and to waive such
charges going forward, but it declined to refund the charges
previously billed and paid. Egenera continued to use InterCall’s
audioconferencing services from October 2008 through April
2009, but refused to pay any portion of the $51,445.14 billed
for those services, despite the fact that no minimum charges
were included in this amount.
2. procedurAl history
In its complaint, InterCall sought to recover the unpaid
amounts 	which 	it 	had 	billed 	Egenera 	for 	services 	after
September 2008, solely on the theory of breach of contract.
Egenera responded with an answer denying liability to InterCall
and raising various affirmative defenses. Egenera also filed a
counterclaim seeking recovery of the alleged “overcharges”
attributable to conference minimum charges on various theo-
ries, including fraud in the inducement. After filing its reply,
InterCall moved for summary judgment.
The district court granted InterCall’s motion with respect
to its claim for unpaid invoices accrued from October 2008

INTERCALL, INC. v. EGENERA, INC. 	807
Cite as 284 Neb. 801
through April 2009, amounting to $51,445.14, noting that
none of these invoices included conference minimum charges.
However, with respect to Egenera’s counterclaim, the district
court concluded that there were genuine issues of material fact
regarding Egenera’s claim that it was fraudulently induced by
InterCall to enter into the original service agreement.
A jury trial was held on the counterclaim. Shortly before
trial, and apparently with leave of the district court, Egenera
filed an amended counterclaim in which it asserted two alterna-
tive theories of recovery, one based upon fraudulent misrepre-
sentation and the second based on material misrepresentation.
With respect to the latter, it alleged:
InterCall made misrepresentations to Egenera as to mate-
rial facts . . . with respect to cost and pricing issues
for audio conferencing services which substantially con-
tributed to Egenera’s decision to enter into an agree-
ment with InterCall, and Egenera reasonably relied on
such misrepresentations in entering into an agreement
with InterCall.
After overruling InterCall’s motions for a directed verdict,
the court instructed the jury on both of Egenera’s alternative
theories of recovery. The jury returned a verdict in favor of
Egenera in the amount of $104,652.96, and the district court
entered judgment on the verdict. Subsequently, the district
court overruled InterCall’s motion for new trial or, in the
alternative, to alter or amend the judgment. InterCall perfected
this timely appeal, which we moved to our docket on our own
motion pursuant to our authority to regulate the caseloads of
the appellate courts of this state.
II. ASSIGNMENTS OF ERROR
InterCall assigns, summarized and restated, that the district
court erred in (1) not finding as a matter of law that Egenera
failed to prove that InterCall misrepresented a fact that Egenera
reasonably and justifiably relied upon; (2) allowing Egenera to
untimely amend its counterclaim to allege material misrepre-
sentation, a cause of action not recognized in Nebraska; (3)
instructing the jury; and (4) overruling InterCall’s motion for
new trial or motion to alter or amend the judgment.

808 	284 NEBRASKA REPORTS
III. STANDARD OF REVIEW
[1] Permission to amend a pleading is addressed to the dis-
cretion of the trial court, and an appellate court will not disturb
the trial court’s decision absent an abuse of discretion.1
[2] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides.2
[3] A civil verdict will not be set aside where evidence is in
conflict or where reasonable minds may reach different conclu-
sions or inferences, as it is within the jury’s province to decide
issues of fact.3
[4] An appellate court reviews a denial of a motion for new
trial or, in the alternative, to alter or amend the judgment, for
an abuse of discretion.4
IV. ANALYSIS
1. mAteriAl misrepresentAtion
We begin by addressing InterCall’s argument that mate-
rial misrepresentation is not a recognized theory of recovery
under Nebraska law. Misrepresentation is a familiar concept in
contract law. The Restatement (Second) of Contracts defines
misrepresentation as “an assertion that is not in accord with
the facts.”5 A misrepresentation may be either fraudulent or
material.6 “A misrepresentation is material if it would be likely
to induce a reasonable person to manifest his assent, or if the
maker knows that it would be likely to induce the recipient to
do so.”7
[5,6] A contract is voidable by a party if his or her “manifes-
tation of assent is induced by either a fraudulent or a material
1 Roos v. KFS BD, Inc., 280 Neb. 930, 799 N.W.2d 43 (2010).
2 Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d
249 (2011).
3 Steele v. Sedlacek, 267 Neb. 1, 673 N.W.2d 1 (2003).
4 See Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011).
5 Restatement (Second) of Contracts § 159 at 426 (1981).
6 Id., comment a.
7 Id., § 162(2) at 439.

INTERCALL, INC. v. EGENERA, INC. 	809
Cite as 284 Neb. 801
misrepresentation by the other party upon which [he or she] is
justified in relying.”8 A misrepresentation “induces a party’s
manifestation of assent if it substantially contributes to [the
party’s] decision to manifest his [or her] assent.”9
InterCall acknowledges that material misrepresentation is an
affirmative defense to an action on a contract. But it contends
that Nebraska has never recognized a tort based upon material
misrepresentation. While this is true, the threshold question is
whether Egenera’s counterclaim sounds in contract or in tort.
We find it sounds in contract.
[7-9] A party who has been induced to enter into a contract
by a material misrepresentation has, upon discovery of such
misrepresentation, an election of remedies: either to affirm
the contract and sue for damages or to disaffirm the contract
and be reinstated to the induced party’s position which existed
before entry into the contract.10 Where the induced party elects
to disaffirm or avoid the transaction, it may claim restitution.11
“Misrepresentation or nondisclosure may render a transac-
tion voidable even if there would be no tort cause of action
for deceit.”12
Egenera did not ratify or affirm the original contract after
it discovered the existence of the minimum charges. To the
contrary, it renegotiated the contract to remove those charges
going forward from October 1, 2008. The district court was
inconsistent in its characterization of these facts. In its order
granting InterCall’s motion for summary judgment with respect
to amounts billed after October 1, 2008, the district court noted
that Egenera had affirmed the original contract by suing for
damages. But later in the same order, the court characterized
the first agreement as having been replaced by a new agree-
ment which did not include minimum charges. In determining
8 Id., § 164(1) at 445.
9 Id., § 167 at 453.
10 Christopher v. Evans, 219 Neb. 51, 361 N.W.2d 193 (1985).
11 7 Corbin on Contracts § 28.13 (rev. ed. 2002).
12 Id. at 71.

810 	284 NEBRASKA REPORTS
that InterCall was entitled to summary judgment on its claim
for amounts due under the second agreement, the court rea-
soned that the “amounts sought by InterCall [were] an attempt
to recover on invoices billed after the parties renegotiated the
price terms of their contract.” (Emphasis supplied.) The court
further noted that “[a]ny alleged misrepresentations that took
place pursuant to the earlier contract have no bearing upon
the subsequent agreement and therefore cannot act as a bar to
InterCall’s recovery.”
Thus, while InterCall sued Egenera for breach of the sec-
ond contract, Egenera’s counterclaim related to the first. It
was not a claim for tort damages, but, rather, a claim for
restitution relating to its avoidance of the original contract on
the basis of InterCall’s alleged misrepresentations. Because
Egenera’s restitution claim sounded in contract, it could be
asserted on alternative theories of fraudulent and material
misrepresentation.
2. timeliness of A mendment
InterCall argues that even if material misrepresentation was
a viable theory of recovery, the district court abused its discre-
tion in permitting Egenera to assert it by amending its coun-
terclaim on the eve of trial. Trial of the case commenced on
July 27, 2011. InterCall states in its brief that the district court
granted Egenera leave to file its amended counterclaim on July
20, citing to an unspecified portion of the supplemental tran-
script which contains no order bearing that date. The transcript
includes a copy of the praecipe for supplemental transcript,
which requests inclusion of a “[j]ournal entry entered July 20,
2011.” There is a handwritten notation by an unknown author
next to that request, stating “not pleading or order Jdg’s note
can’t be ctfd.” The amended counterclaim is file stamped July
28, 2011. Although InterCall states that leave to amend was
granted over its objection, we find no such objection in the
record. Thus, although we can reasonably conclude that the
district court granted Egenera leave to file its amended coun-
terclaim, the record does not inform us of its reasoning for
doing so.

INTERCALL, INC. v. EGENERA, INC. 	811
Cite as 284 Neb. 801
[10,11] When a party seeks leave of court to amend a
pleading, our rules require that “leave shall be freely given
when justice so requires.”13 A district court’s denial of leave
to amend pleadings is appropriate only in those limited cir-
cumstances in which undue delay, bad faith on the part of the
moving party, futility of the amendment, or unfair prejudice
to the nonmoving party can be demonstrated.14 The Nebraska
rules governing the amendment of pleadings are similar to
those of the Federal Rules of Civil Procedure,15 and in apply-
ing our rules, we have looked to federal decisions interpreting
the corresponding federal rule for guidance.16 Federal courts
have held that “[d]elay alone is not a reason in and of itself to
deny leave to amend; the delay must have resulted in unfair
prejudice to the party opposing amendment.”17 The burden of
proof of prejudice is on the party opposing the amendment.18
“Prejudice does not mean inconvenience to a party,” but
instead requires that the nonmoving party “‘show that it was
unfairly disadvantaged or deprived of the opportunity to pre-
sent facts or evidence which it would have offered had the . . .
amendments been timely.’”19
[12] InterCall contends that it was prejudiced by the intro-
duction of a new cause of action on the eve of trial. We dis-
agree. Before and after the amendment, Egenera had a single
cause of action to recover the minimum charges under the
13 Neb. Ct. R. Pldg. § 6-1115(a); Spear T Ranch v. Knaub, 269 Neb. 177, 691
N.W.2d 116 (2005).
14 Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011).
15 See Fed. R. Civ. P. 15(a)(2).
16 See, Citizens Opposing Indus. Livestock v. Jefferson Cty., 274 Neb. 386,
740 N.W.2d 362 (2007); Ichtertz v. Orthopaedic Specialists of Neb., 273
Neb. 466, 730 N.W.2d 798 (2007).
17 Roberson v. Hayti Police Dept., 241 F.3d 992, 995 (8th Cir. 2001). See,
also, Bailey v. First Nat. Bank of Chadron, 16 Neb. App. 153, 741 N.W.2d
184 (2007).
18 Roberson, supra note 17.
19 Cuffy v. Getty Refining & Marketing Co., 648 F. Supp. 802, 806 (D. Del.
1986), quoting Heyl & Patterson Intern. v. F. D. Rich Housing, 663 F.2d
419 (3d Cir. 1981).

812 	284 NEBRASKA REPORTS
original contract. Material misrepresentation as alleged in the
amended counterclaim was not a new cause of action, but,
rather, an alternative theory of recovery. As we explained in
Poppert v. Dicke20:
A cause of action consists of the fact or facts which
give one a right to judicial relief against another; a theory
of recovery is not itself a cause of action. Thus, two or
more claims in a complaint arising out of the same opera-
tive facts and involving the same parties constitute sepa-
rate legal theories, of either liability or damages, and not
separate causes of action.
InterCall also argues that the amendment injected new facts
into the case which prejudiced its ability to present its defense
to the counterclaim. The record does not support this argument.
The operative facts alleged in paragraphs 1 through 10 of the
amended counterclaim are almost identical to the correspond-
ing paragraphs in the original counterclaim. Both theories of
recovery focus on representations made by InterCall which
induced Egenera to discontinue its business relationship with
Raindance and enter into a new contractual relationship with
InterCall. As we have noted, there is no indication in the
record that InterCall objected to the amendment, and like-
wise, the record does not reflect that InterCall requested a
continuance because of any new factual issues resulting from
the amendment.
[13] It is incumbent upon the appellant to present a record
supporting the errors assigned; absent such a record, an appel-
late court will affirm the lower court’s decision regarding
those errors.21 On the record before us, the district court did
not abuse its discretion in granting Egenera leave to amend
its counterclaim.
3. motions for directed verdict
[14] InterCall argues that its motion for directed verdict
made at the close of Egenera’s case and renewed at the close of
20 Poppert v. Dicke, 275 Neb. 562, 566, 747 N.W.2d 629, 633 (2008).
21 In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009).

INTERCALL, INC. v. EGENERA, INC. 	813
Cite as 284 Neb. 801
all the evidence should have been sustained, because Egenera
did not prove that there had been a misrepresentation or that
it had justifiably or reasonably relied upon any alleged mis-
representation. In addressing this argument, we are guided by
the principle that a directed verdict is proper at the close of
all the evidence only when reasonable minds cannot differ and
can draw but one conclusion from the evidence, that is to say,
when an issue should be decided as a matter of law.22 If there is
any evidence which will sustain a finding for the party against
whom the motion is made, the case may not be decided as a
matter of law.23
(a) Misrepresentation
InterCall argues there was no evidence of a misrepresen-
tation. It contends that Visconte truthfully told Lehane that
Egenera would be charged a rate of $.05 per minute for audio-
conferencing. But one can draw a reasonable inference that
Visconte represented and Lehane understood that conference
calls would be billed at this rate regardless of their duration.
There was evidence that Egenera was unwilling to enter into a
new agreement for audioconferencing services with InterCall
at a price greater than it was paying to Raindance, which did
not include a minimum charge. Visconte was aware of this,
and his January 9, 2007, e-mail message to Lehane indicat-
ing that he had been authorized to “honor[] your current
Raindance rate of .05 cents and roll you into InterCall’s [pro-
gram]” can be fairly understood to mean that he was offering
to match the Raindance price. Indeed, that is what Visconte
himself thought he was doing, because he was unaware that
the $.05 per minute rate he was quoting to Lehane was subject
to a minimum charge of $15 for each call, regardless of the
length of the call. Comment a. to § 159 of the Restatement
(Second) of Contracts notes that “a statement intended to be
truthful may be a misrepresentation because of ignorance or
22 Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008).
23 Id.

814 	284 NEBRASKA REPORTS
carelessness.”24 Likewise, a misrepresentation may consist of
a “half-truth,” i.e., a statement which is “true with respect to
the facts stated, but [which] may fail to include qualifying
matter necessary to prevent the implication of an assertion that
is false with respect to other facts.”25 Given the context of the
negotiations between Visconte and Lehane, there is a basis for
a reasonable inference that Visconte represented that Egenera
would pay $.05 per minute for all conference calls, regardless
of call duration.
There is no evidence that Visconte knowingly failed to
disclose the existence of the minimum charge, because he
was admittedly unaware of it. But the fact that he was not
completely familiar with InterCall’s pricing structure during
the negotiations with Egenera could reasonably be viewed as
proof that his representations to Egenera regarding the price
which it would pay for InterCall’s audioconferencing services
were made “recklessly, without regard to whether it is true” so
as to constitute an element of fraudulent misrepresentation.26
And the record supports Egenera’s claim that the misrepre-
sentation was material, in that it substantially contributed to
Egenera’s willingness to enter into a new contractual relation-
ship with InterCall.
(b) Reliance
[15] An essential element of actionable false misrepre-
sentation 	is 	justifiable 	reliance 	on 	the 	representation.27
InterCall argues that Egenera could not have justifiably relied
on 	Visconte’s 	representations 	regarding 	a 	flat 	per-minute
charge because the contract included language referring to
InterCall’s standard rates, which included the minimum charge,
and because the minimum charge was reflected on monthly
invoices which Egenera received before the renegotiation of
the contract.
24 Restatement, supra note 5, comment a. at 427.
25 Id., comment b. at 427.
26 Id., § 162, comment b. at 440-41.
27 Growney v. C M H Real Estate Co., 195 Neb. 398, 238 N.W.2d 240
(1976); Camfield v. Olsen, 183 Neb. 739, 164 N.W.2d 431 (1969).

INTERCALL, INC. v. EGENERA, INC. 	815
Cite as 284 Neb. 801
[16,17] Whether a party’s reliance upon a misrepresentation
was reasonable is a question of fact.28 A party is justified in
relying upon a representation made to the party as a positive
statement of fact when an investigation would be required to
ascertain its falsity.29 Justifiable reliance must be determined
on a case-by-case basis.30 In determining whether an individual
reasonably relied on a misrepresentation, courts consider the
totality of the circumstances, including the nature of the trans-
action; the form and materiality of the representation; the rela-
tionship of the parties; the respective intelligence, experience,
age, and mental and physical condition of the parties; and their
respective knowledge and means of knowledge.31
The record in this case supports a reasonable inference that
Visconte represented to Lehane as a positive statement of fact
that Egenera would be charged $.05 per minute for confer-
ence calls, the same amount it had been paying to Raindance.
This price term was the key point in the negotiations which
led to the execution of the original service agreement. There
had been no discussion of minimum charges, and the service
agreement itself made no mention of such charges. There is
no evidence that InterCall’s standard rate sheet was made
available to Lehane or any other Egenera employee before
the service agreement was executed. Although the service
agreement provided that the standard rate information could
be obtained “through customer’s web account or through cus-
tomer’s sales or account representative,” there was evidence
that the information necessary for Egenera to access its “Web
Account” was not provided by InterCall until after the service
agreement had been executed. Likewise, at the time it exe-
cuted the service agreement, Egenera could not have learned
from Visconte that the standard rates included the minimum
charge, because Visconte was not aware of those charges. On
this record, reasonable minds could draw different inferences
28 Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001);
Cao v. Nguyen, 258 Neb. 1027, 607 N.W.2d 528 (2000).
29 Fitl v. Strek, 269 Neb. 51, 690 N.W.2d 605 (2005); Cao, supra note 28.
30 Lucky 7 v. THT Realty, 278 Neb. 997, 775 N.W.2d 671 (2009).
31 Id.

816 	284 NEBRASKA REPORTS
and conclusions on whether Egenera reasonably relied upon
the representations of Visconte that InterCall would charge the
same price for conference calls that Egenera had been paying
to Raindance.
(c) Resolution
Because there was evidence upon which the jury could
reasonably have concluded that InterCall misrepresented the
price it would charge Egenera for conference call services, and
that Egenera reasonably relied upon that misrepresentation, the
district court did not err in overruling InterCall’s motions for
directed verdict.
4. Jury instructions
[18-20] 	InterCall 	argues 	that 	two 	of 	the 	jury 	instruc-
tions given by the district court were erroneous and that the
court erred in refusing to give two instructions requested by
InterCall. In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.32 To establish
reversible error from a court’s failure to give a requested jury
instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3)
the appellant was prejudiced by the court’s failure to give the
requested instruction.33 If the instructions given, which are
taken as a whole, correctly state the law, are not misleading,
and adequately cover the issues submissible to a jury, there is
no prejudicial error concerning the instructions and necessitat-
ing a reversal.34
32 Karel v. Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007);
Domjan v. Faith Regional Health Servs., 273 Neb. 877, 735 N.W.2d 355
(2007).
33 Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 N.W.2d
406 (2008); Castillo v. Young, 272 Neb. 240, 720 N.W.2d 40 (2006).
34 Shipler v. General Motors Corp., 271 Neb. 194, 710 N.W.2d 807 (2006);
Curry v. Lewis & Clark NRD, 267 Neb. 857, 678 N.W.2d 95 (2004).

INTERCALL, INC. v. EGENERA, INC. 	817
Cite as 284 Neb. 801
InterCall first challenges instruction No. 1.C., which sets
forth Egenera’s burden of proof with respect to material mis-
representation. The instruction states:
Before Egenera can recover against InterCall on its
claim of material misrepresentation, Egenera has the bur-
den of proving, by the greater weight of the evidence,
each and all of the following:
1. That InterCall made the claimed representation to
Egenera;
2. That the representation was false;
3. That the representation was material;
4. That this representation substantially contributed to
Egenera’s decision to agree to the service agreement;
5. That Egenera’s reliance on this representation was
reasonable; and
6. That Egenera sustained damages as a result of this
reasonable reliance.
It is not necessary that InterCall knew that the represen-
tation was false. It may be that it was honestly mistaken.
InterCall contends that the last sentence of the instruction is
an erroneous statement of law. The sentence is taken directly
from NJI2d Civ. 15.22, which is applicable to contract actions.
This pattern instruction reflects the elements of material mis-
representation stated in § 162(2) of the Restatement (Second)
of Contracts. The Restatement at § 159 defines “misrepresenta-
tion” as “an assertion that is not in accord with the facts.”35 A
comment to this definitional section states:
[A]n assertion need not be fraudulent to be a misrepre-
sentation. Thus a statement intended to be truthful may be
a misrepresentation because of ignorance or carelessness,
as when the word “not” is inadvertently omitted or when
inaccurate language is used. But a misrepresentation that
is not fraudulent has no consequences under this Chapter
unless it is material. Whether an assertion is material is
determined by the rule stated in § 162(2).36
35 Restatement, supra note 5, § 159 at 426.
36 Id., comment a. at 427.

818 	284 NEBRASKA REPORTS
[21] Thus, NJI2d Civ. 15.22 is a correct statement of
contract law. A material misrepresentation may be a basis
for avoiding a contract, even if it resulted from an honest
mistake.
InterCall also argues that this instruction was deficient
because it did not include “caveats” such as those set forth
in two instructions which it requested and the court declined
to give.37 Proposed instruction No. 10 stated: “A person who
signs a contract without reading it cannot later relieve himself/
herself of its burdens.” Proposed instruction No. 13 stated:
“Reliance on an implied misrepresentations [sic] is unreason-
able if a written contract provision explicitly states a fact com-
pletely contradictory to the claimed misrepresentation.”
For the reasons more fully set forth in our discussion above
regarding the evidence of reasonable reliance, we find no error
in the giving of instruction No. 1.C. or the refusal to give
requested instructions Nos. 10 and 13. The service agreement
signed by Lehane did not include any facts “completely con-
tradictory” to Visconte’s representation that Egenera would be
charged a flat fee of $.05 per minute for conference calls, the
same as under its prior agreement with Raindance. As we have
noted, Egenera did not have access to the standard rate sheet
via its Web account until after the agreement was executed,
and it could not have learned of the minimum charge by asking
Visconte, because he was unaware of it himself.
InterCall also contends that the district court erred in giv-
ing instruction No. 4, which stated: “An intent to deceive
is not a necessary element for proof of fraudulent misrep-
resentation. A representation is fraudulent if, when made,
it was known to be false or was made recklessly as a posi-
tive assertion without knowledge concerning the truth of the
representation.”
InterCall contends that this instruction “is not a pattern jury
instruction”38 and is inconsistent with instruction No. 1.B.,
which instructed the jury on the elements of fraudulent misrep-
resentation. One of those elements was that “the representation
37 Brief for appellant at 34.
38 Id. at 35.

INTERCALL, INC. v. EGENERA, INC. 	819
Cite as 284 Neb. 801
was made fraudulently.” Instruction No. 4 simply informs the
jury what constitutes fraud. It is consistent with our cases hold-
ing that fraud can be based on a false statement that, when
made, was “‘known to be false or made recklessly without
knowledge of its truth and as a positive assertion.’”39 The
instruction was thus a correct statement of the law, and the
district court did not err in giving it.
5. motion for neW triAl
Finally, InterCall argues that the district court erred in over-
ruling its motion requesting a new trial or, in the alternative,
to alter and amend the judgment. InterCall’s argument in this
regard is based upon the same arguments which we have con-
sidered and rejected above. For the reasons underlying our
disposition of those issues, we conclude that the district court
did not abuse its discretion in overruling InterCall’s post-
trial motion.
V. CONCLUSION
For the reasons discussed herein, we affirm the judgment of
the district court.
A ffirmed.
39 Agri Affiliates, Inc. v. Bones, 265 Neb. 798, 805, 660 N.W.2d 168, 175
(2003). See, also, Nebraska Nutrients, supra note 28.