132 Ventures v. Active Spine Physical Therapy

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/22/2024 09:10 AM CST




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                               Nebraska Supreme Court Advance Sheets
                                        318 Nebraska Reports
                             132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY
                                              Cite as 

                     132 Ventures, LLC, a Nebraska limited liability
                   company, appellee, v. Active Spine Physical Therapy,
                       LLC, a Nebraska limited liability company,
                                   et al., appellants.
                                                    ___ N.W.3d ___

                                        Filed November 22, 2024.   No. S-24-032.

                 1. Trial: Evidence: Rules of Evidence: Appeal and Error. Evidential use
                    of summaries rests within the sound discretion of the trial judge, whose
                    action in allowing their use may not be disturbed by an appellate court
                    except for an abuse of discretion.
                 2. Verdicts: Juries: Appeal and Error. A jury verdict will not be dis-
                    turbed unless it is clearly wrong, and it is sufficient if there is competent
                    evidence presented to the jury upon which it could find for the success-
                    ful party.
                 3. 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.
                 4. Judgments: Words and Phrases. An abuse of discretion occurs when a
                    trial court’s decision is based upon reasons that are untenable or unrea-
                    sonable or if its action is clearly against justice or conscience, reason,
                    and evidence.
                 5. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
                    ing the verdict, the court resolves the controversy as a matter of law and
                    may do so only when the facts are such that reasonable minds can draw
                    but one conclusion.
                 6. Judgments: Verdicts: Directed Verdict. A motion for judgment not-
                    withstanding the verdict may be granted when the movant’s previous
                    motion for directed verdict, made at the conclusion of all the evidence,
                    should have been sustained.
                 7. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
                    motion for judgment notwithstanding the verdict is de novo on the
                    record.
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            Nebraska Supreme Court Advance Sheets
                     318 Nebraska Reports
          132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY
                           Cite as 

 8. Appeal and Error. A trial court cannot commit error in resolving an
    issue never presented and submitted to it for disposition.
 9. ____. An issue not presented to or passed on by the trial court is not
    appropriate for consideration on appeal.
10. Judgments: Verdicts: Directed Verdict. Pursuant to 

 (Reissue 2016), an argument not previously asserted as
    grounds for a directed verdict is not preserved as grounds for judgment
    notwithstanding the verdict.
11. Appeal and Error. To be considered by an appellate court, the party
    asserting an alleged error must both specifically assign and specifically
    argue it in the party’s initial brief.
12. ____. An appellate court’s holdings on issues presented to it conclu-
    sively settle all matters ruled upon, either expressly or by necessary
    implication.
13. Waiver: Appeal and Error. A decision made at a previous stage of liti-
    gation, which could have been challenged in the ensuing appeal but was
    not, becomes the law of the case; the parties are deemed to have waived
    the right to challenge that decision.
14. Rules of Evidence. 

 (Reissue 2016) permits
    the use of charts, summaries, or calculations of the contents of volumi-
    nous writings, recordings, or photographs that cannot conveniently be
    examined in court, so long as the requirements of the statute are met.
15. ____. 

 (Reissue 2016) is an exception to
    the requirement of 

 (Reissue 2016) that the
    originals must be presented to prove the contents of writings, recordings,
    and photographs.
16. Rules of Evidence: Records. Ledgers and similar records, relevant and
    admissible in their own right as business records and without regard to
    the admissibility of their underlying materials, do not fall under 

 and 27-1006 (Reissue 2016).
17. ____: ____. If produced reasonably contemporaneously with the trans-
    action and in the normal course of business, records derived from more
    numerous detailed documents memorializing individual transactions are
    business records and not 

 (Reissue 2016) sum-
    maries thereof.
18. Motions for New Trial: Verdicts: Appeal and Error. A motion for
    new trial is to be granted only when error prejudicial to the rights of the
    unsuccessful party has occurred. Unless such error appears, a party who
    has sustained the burden and expense of trial, and who has succeeded in
    securing a verdict on the facts in issue, has a right to keep the benefit of
    that verdict.
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            Nebraska Supreme Court Advance Sheets
                     318 Nebraska Reports
          132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY
                           Cite as 

19. Damages: Appeal and Error. 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.
20. Motions for New Trial: Appeal and Error. An appellant assigning
    as error on appeal the denial of a motion for new trial does not prop-
    erly raise as grounds for trial court error any grounds that were never
    assigned or argued to the trial court with respect to the motion.
21. Trial: Appeal and Error. Statements made at high levels of generality
    do not sufficiently preserve an argument for decision.
22. Judgments: Verdicts: Motions for New Trial: Juries. A motion for
    judgment notwithstanding the verdict differs from a motion for new trial
    in that it requests that the court not only nullify the jury verdict, but also
    enter judgment in favor of the moving party.
23. Judgments: Verdicts: Appeal and Error. A trial court does not err by
    denying a motion for judgment notwithstanding the verdict on a ground
    not presented to it in the motion.
24. Judgments: Verdicts: Directed Verdict: Appeal and Error. Since a
    motion for judgment notwithstanding the verdict is simply a renewal of
    the motion for directed verdict made at the close of all the evidence, any
    arguments made in a motion for judgment notwithstanding the verdict
    that were not made in the motion for directed verdict are not preserved
    for appellate review of denial of the motion.
25. ____: ____: ____: ____. A precursor motion for directed verdict that
    fails to comply with the statutory requirements of specificity fails to
    provide a basis for rendition of judgment notwithstanding the verdict
    and preserves nothing for review.
26. Appeal and Error. Where an appellant’s brief contains conclusory
    assertions unsupported by a coherent analytical argument, it fails to
    satisfy the requirement that for an alleged error to be considered by an
    appellate court, the party asserting the alleged error must both specifi-
    cally assign and specifically argue it in the party’s initial brief.
27. Contracts: Partial Performance. The general rule with respect to
    what performance is required when a contract is made for the agreed
    exchange of two performances, one of which is to be rendered first, is
    not strict, literal, and exact compliance with the terms of the contract,
    but, rather, only substantial compliance or substantial performance.
28. Breach of Contract: Pleadings: Notice: Waiver. In a breach of con-
    tract action, the failure to plead with sufficient particularity to give the
    plaintiff fair notice of the affirmative defense of denial of performance
    of a condition precedent to a duty to perform under the contract waives
    any such defense.
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            Nebraska Supreme Court Advance Sheets
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          132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY
                           Cite as 

29. Trial: Appeal and Error. One cannot silently tolerate error, gamble on
    a favorable result, and then complain that one guessed wrong.
30. Verdicts: Juries: Presumptions. Where a general verdict is returned for
    one of the parties, and the mental processes of the jury are not tested by
    special interrogatories to indicate which issue was determinative of the
    verdict, it will be presumed that all issues were resolved in favor of the
    prevailing party.

   Appeal from the District Court for Douglas County, Timothy
P. Burns, Judge. Affirmed.
   Zachary W. Lutz-Priefert, of Gross, Welch, Marks & Clare,
P.C., L.L.O., for appellants.
  Rubina S. Khaleel, Madaline McGill, and Allyse Noel,
Senior Certified Law Student, of Hennessy & Roach, P.C., for
appellee.
  Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
    Freudenberg, J.
                      I. INTRODUCTION
   Appellants, a tenant physical therapy business and its two
owners, appeal from a jury verdict in a trial on remand fol-
lowing our opinion in 132 Ventures v. Active Spine Physical
Therapy. 1 The jury found appellants liable for breach of con-
tract and personal guarantee to appellee, the lessor of the com-
mercial building where appellants operated their physical ther-
apy business, after appellants failed to pay rent and common
area maintenance (CAM) charges. Appellants assign that the
trial court erred in admitting the property management com-
pany’s invoices, a ledger, and a reconciliation, because they
include references to CAM services charged by third parties
and the lessor failed to establish foundation for their admis-
sibility as summaries of voluminous writings. Appellants also
1
    132 Ventures v. Active Spine Physical Therapy, 

, 

 (2022).
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        132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY
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assign that the trial court erred by denying their motion for
new trial or judgment notwithstanding the verdict (JNOV) for
several reasons, only one of which was presented below in
their motion for new trial: that the lessor failed to perform a
condition precedent by not giving the physical therapy busi-
ness prior notice of budgeted direct expenses before sending
monthly invoices containing CAM charges. We affirm.

                      II. BACKGROUND
   The owner of the commercial property (Property), 132
Ventures, LLC (Ventures), sued Active Spine Physical Therapy,
LLC (Active Spine), a physical therapy business, and its two
owners, Sara Muchowicz and Nicholas Muchowicz. Ventures
sought damages stemming from (1) Active Spine’s failure
to pay invoices under a lease signed in 2017 (2017 Lease)
with the prior owner of the Property, DEMU Properties, LLC
(DEMU); (2) breach of the Muchowiczes’ personal guarantee
of the 2017 Lease; and, alternatively, (3) unjust enrichment.
   DEMU was a partnership between the Muchowiczes and
Dale Scott, a real estate agent and investor. Under DEMU’s
operating agreement (Operating Agreement), Scott was origi-
nally DEMU’s managing member. The Operating Agreement
provided that a removed manager maintained voting rights
as a member and that “the affirmative vote of all of the
Members shall be necessary to effect . . . [a]ny contracts
between the Company and any entity or individual affiliated
with the Manager.”
   The purchase of the Property was made with a “bridge loan”
with the intent to obtain long-term financing through a Small
Business Administration (SBA) loan. The parties’ understand-
ing was that to qualify for the SBA loan, a holding company
different from the lessee operating company had to buy the real
estate. DEMU was formed for that purpose.
   The 2017 Lease was drafted to comply with SBA require-
ments, providing for an occupancy of 9,544 square feet, rep-
resenting 50.1 percent of the building, and for a 20-year term
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with an option to terminate after 10 years. Following disagree-
ments between Scott and the Muchowiczes, Scott was unwill-
ing to sign a personal guarantee for the SBA loan. Thereafter,
long-term financing could not be obtained.
   After DEMU attempted to evict Active Spine, the
Muchowiczes removed Scott as managing member. On
February 28, 2020, an alleged amended lease (Amended
Lease) was signed by Nicholas twice, once in his capacity as
DEMU’s manager and again on behalf of Active Spine. Scott
neither had notice of nor participated in a vote to execute the
Amended Lease. The Amended Lease reaffirmed most pro-
visions of the 2017 Lease but changed the lease term to an
immediate termination date of February 29, 2020, continuing
month to month thereafter with the landlord having the right to
terminate the month-to-month tenancy with 180 days’ notice.
The Amended Lease also eliminated a holdover provision.
   Without long-term financing, the Property was eventually
foreclosed upon. Scott formed Ventures, which purchased the
Property in a foreclosure sale on June 10, 2020. After Active
Spine failed to pay Ventures’ invoices for payments due under
the 2017 Lease, Ventures sent a notice to quit pursuant to 

,221 (Reissue 2016).

                     1. Prior Proceedings
   Ventures’ action was originally brought in July 2020, when
Active Spine was still occupying the Property. Ventures sought
forcible entry and detainer in addition to the contractual and
quasi-contractual claims.
   The claim for forcible entry and detainer was bifurcated
and tried without a jury. Active Spine and the Muchowiczes
asserted that the 2017 Lease was procured as a result of fraudu-
lent inducement by unilaterally changing the terms agreed to by
the parties. They also argued they were occupying the Property
under a COVID-19-related abatement. On January 4, 2021, the
district court ordered restitution of the premises to Ventures
and denied Active Spine’s request for a temporary injunction
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          132 VENTURES V. ACTIVE SPINE PHYSICAL THERAPY
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preventing Ventures from evicting it. The court found that
Active Spine owed Ventures rent from bills not paid from July
through October 2020, thereby implicitly rejecting the alleged
abatement. The court questioned whether the validity of a lease
is a defense to a forcible entry and detainer action when the
defendants remain in possession of the premises, but reasoned
that, even if it were, the evidence did not establish fraud in the
execution of the 2017 Lease.
   A separate bench trial was held in November 2021 on the
causes of action for breach of contract, breach of personal
guarantee, and unjust enrichment. Based on a failure to pay
rent and CAM billed from June 2020 to February 2021,
the court rendered a judgment against Active Spine and the
Muchowiczes for breach of contract.
   Active Spine and the Muchowiczes appealed to this court,
challenging the lack of a jury trial. In our decision in 132
Ventures, we affirmed that part of the judgment granting resti-
tution of the premises but reversed the judgment on Ventures’
breach of contract, breach of guarantee, and unjust enrichment
claims. 2 We remanded the cause for a new trial before a jury
on the contractual and quasi-contractual claims.

                      2. Trial on Remand
   During the trial on remand, the jury heard the testimony
of Sara, Nicholas, Scott, and employees of the property man-
agement company that worked for Ventures in managing the
Property. The jury was presented with several exhibits, includ-
ing the notice to vacate the premises pursuant to the court’s
prior order of restitution of the premises, the 2017 Lease, the
Amended Lease, and the Operating Agreement, all of which
were entered into evidence without objection.
   Ventures’ theory of the case for its breach of contract
claims was that it assumed the 2017 Lease, including its
personal guarantee, and that Active Spine breached the
2
    

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lease by not paying rent and other amounts due. Ventures
argued the Amended Lease was ineffective because it vio-
lated the Operating Agreement. Ventures alternatively claimed
compensation for unjust enrichment. Active Spine and the
Muchowiczes, in contrast, told the jury the case was about
“fairness” and “the power that a landlord has when [it] can
withhold taking certain responsibilities, withhold following
[its] obligations under the lease, and simultaneously demand
payment without proving [entitlement] to it, without doing
anything to earn it.”

               (a) DEMU’s Operating Agreement
   The Operating Agreement required notice of meetings to
“every Member entitled to vote.” Provision 5.2 designated
Scott as the manager of the company until his incapacity,
resignation, or removal. Provision 5.3 declared that “[t]he
Manager shall have the sole authority to make decisions on the
routine day-to-day management functions of the Company”
and, further, that “[t]he Manager shall make recommendations
to the Members regarding all material aspects of the manage-
ment of the Real Estate of the Company including, but not
limited to, decisions regarding . . . (ii) tenants, rental rates,
and other lease terms prior to signing leases with new ten-
ants for the Real Estate.” This provision went on to describe
a mediation process “[i]n the event that the Members are not
in unanimous agreement with the Manager for any manage-
ment decisions related to the items set forth in subsections
(i) and (ii) in the previous sentence . . . .” Under provision
5.5, a removed manager maintained voting rights as a mem-
ber. Provision 5.7 in the Operating Agreement set forth that
“[n]otwithstanding the general provisions of Sections 4.7, 5.1,
and 5.3, the affirmative vote of all of the Members shall be
necessary to effect any of the following actions: . . . (e) [a]ny
contracts between the Company and any entity or individual
affiliated with the Manager.”
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                       (b) The 2017 Lease
   Active Spine executed the 2017 Lease with DEMU on
December 29, 2017, to occupy part of the Property DEMU
had purchased. The 2017 Lease was signed by Scott as man-
ager of DEMU and by Nicholas as manager of Active Spine.
   Provision 3.1 of the 2017 Lease stated the 20-year term “shall
commence ninety (90) days after the Premises is vacated by the
existing tenant,” which would then be the “Commencement
Date.” The estimation of the commencement date was in
February 2019, but the actual date was to be confirmed later
through a process set forth in the lease. An attached exhibit,
a “Certificate of Occupancy,” would then be completed. The
“Certificate of Occupancy” was never filled out.
   In addition to rent, Active Spine agreed, in provision 5.1, to
pay “[d]irect [e]xpenses” based on the ratio of the total rent-
able square feet of the leased premises to the total rentable
square feet of the building. Direct expenses were defined in
provision 5.1.1 as “all direct and reasonable costs, expenses,
and disbursements which Landlord shall incur, pay, or become
obligated to pay in any calendar year in connection with the
ownership, operation, maintenance, repair, replacement . . . ,
and security of the Building, the real estate . . . , and all related
improvements and appurtenances thereto.”
   The 2017 Lease provided in provision 5.1 for “notice of the
Budgeted Direct Expenses” to the tenant by the landlord of
the estimated annual direct expenses on or before January 1 of
each calendar year:
      On or before January 1st of each calendar year subsequent
      to the calendar year in which this Lease commences,
      Landlord will notify Tenant of Landlord’s estimate of
      the Direct Expenses (“Budgeted Direct Expenses”) pay-
      able by Tenant for the calendar year. Following receipt
      of notice of the Budgeted Direct Expenses, Tenant shall
      pay to Landlord such amount in the same manner as
      the payment of Base Rent . . . one-twelfth (1/12) of the
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      amount of such Budgeted Direct Expenses for said cal-
      endar year.
   Provision 5.2 described reconciling budgeted direct expenses
with actual direct expenses, stating that “[n]ot later than ninety
(90) days after January 1st of each year, Landlord will give
written notice to Tenant of the Actual Direct Expenses for the
preceding year.” Active Spine would then receive a credit if
the actual direct expenses were less than the budgeted direct
expenses and would owe the difference if the budgeted direct
expenses were less than the actual direct expenses.
   Provision 16 set forth rules governing holdover, stating
that the tenant had no right to occupy the premises after the
expiration or termination of the lease and that, if the tenant
does so, the tenancy will be from month to month. Under
provisions 18.1 through 18.4, in the event of default, which
included failure to pay rent or any other payment required
under the lease 10 days after it is due, the 2017 Lease declared
in provision 18.2 that the landlord could terminate the tenant’s
right to possession and recover from the tenant all damages
incurred by reason of the tenant’s default. These included, but
were not limited to, “the cost of recovering possession of the
Premises, expenses of reletting, including necessary renovation
and alteration of the Premises (not to exceed $5 per [rentable
square foot]).” A separate provision, 28.18, established a “late
charge” of 5 percent of any sum not paid within 10 days after
written notice that it is past due.
   Under “Attornment & Nondisturbance” in provision 28.12,
the 2017 Lease stated that foreclosure on the Property shall not
terminate the lease, the tenant shall recognize the purchaser at
a foreclosure sale as the landlord, and the landlord shall cause
each of its Lenders to execute a nondisturbance agreement
acceptable to the tenant.
   Sara and Nicholas executed an attached personal guarantee
of payment of all rent and other charges and the performance
of all covenants under the 2017 Lease.
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                       (c) Scott’s Testimony
   Scott testified he thought Active Spine began occupying
the Property on May 1, 2019. However, because Nicholas
did not think Active Spine had yet used its 90-day period for
construction, Scott testified, “[W]e agreed we’d adjust it to
June 1.” Scott conceded the actual commencement date was
never put on the 2017 Lease. According to Scott, Active Spine
refused to sign the “Certificate of Occupancy” when it was
later sent to Active Spine.
   Scott explained how his partnership with the Muchowiczes
deteriorated after Active Spine failed to pay rent to DEMU
and caused multiple liens to be filed against the building for
nonpayment of the construction loans. Scott was required to
file a personal guarantee for an SBA loan, and he was no
longer willing to do that. Scott obtained extensions on the
bridge loan while attempting to find alternative financing but
was ultimately unsuccessful in finding long-term financing
for DEMU.
   Scott testified that when he was still the managing member
of DEMU, DEMU obtained an eviction order against Active
Spine for not paying rent. He stated, “The very next day,
they removed me as manager and canceled the eviction order
against themselves.” Scott did not participate in a vote to enter
into the Amended Lease and first learned of the Amended
Lease at that eviction hearing.
   Scott explained that Active Spine was in its second year
of the lease when Ventures bought the Property. On cross-­
examination, Scott was unsure if the property management
company hired by Ventures had caused each of the lenders to
execute a nondisturbance agreement acceptable to the tenant,
as set forth in provision 28.12 of the 2017 Lease.
   Scott testified that Active Spine was occupying the Property
without paying anything for 7 months after Ventures became
the landlord on June 10, 2020, for the period of June 10,
2020, to January 8, 2021. According to Scott, Active Spine
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“never paid one penny in rent or direct expenses” and did not
pay any late fees.
   Scott testified he did everything in his power to re-lease
the Property as quickly as possible after Active Spine was
evicted. According to Scott, in addition to amounts due while
occupying the Property, Active Spine owed Ventures approxi-
mately 8 months of rent and direct expenses for the period
the Property was vacant while Ventures tried to lease it after
Active Spine’s eviction. Also, Active Spine owed 5 months of
rent abatement Ventures had to give one of the new tenants
as an incentive, a build-out allowance, real estate commission
fees, and other costs related to re-leasing the Property. Scott
testified that the value of the 5 months’ rental abatement was
$68,701.88 and that the improvements were worth $47,720.
Ventures paid $14,889.57 in real estate commissions for one
new lessee and $11,228.74 for another. Those amounts are
also reflected in exhibits entered into evidence containing the
invoices for the commissions. Exhibit 15, admitted into evi-
dence without objection during Scott’s testimony, is a “Lease
Late Charge Provision” invoice showing a total amount due of
$451,183.63 on October 21, 2021.
   On cross-examination, Scott reiterated that rental abatement,
low rent, and tenant improvements are all means of attracting
possible tenants. Scott admitted that 100 percent of the time, a
“rental rate” is used. Scott admitted that 75 percent of the time,
some combination of rental abatement, lower rent, or tenant
improvements is used for a new tenant. However, Scott did not
necessarily agree with counsel’s assertion that those items are
“just the cost of doing business in your industry.” Scott testi-
fied, “Well, it’s part of doing business but not necessarily the
cost of doing business. Otherwise, every tenant could leave
after one year and you just keep incurring those costs, and
that’s not a very smart business.” Scott agreed those costs of
reletting are “bak[ed]” into the cost of building ownership but
clarified that this was “[o]ver lease terms, . . . which is why the
longer lease you sign, the more concessions you get.”
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              (d) Management Company Testimony
                   and Exhibits 10, 11, and 16
   Patricia White and Max Bogard, employees of the com-
pany that Ventures hired to handle the management of the
Property, laid foundation for exhibits 10, 11, and 16 and testi-
fied concerning notices sent to, and invoicing of, Active Spine.
White works as an assistant real estate controller overseeing
accounting and testified that she was familiar with invoices
that are sent to tenants. Bogard was the property manager
for the Property. Exhibits 10, 11, and 16 contained informa-
tion pertaining to billing under the 2017 Lease after Ventures
purchased the Property. White and Bogard testified that all the
documents contained in exhibits 10, 11, and 16 were prepared
in the ordinary course of the management company’s business
in relation to Active Spine.
   Exhibit 10 consisted of 63 pages of invoices that had been
sent to Active Spine over a period of 15 months. The invoices
included rent, CAM charges, and late fees. The CAM charges
were based upon a monthly division of the budgeted direct
expenses. The first invoice was sent on July 13, 2020, and
reflected June 11 prorated rent and CAM. The remaining
invoices were labeled “Lease Late Charge Provision” and
began on August 18, reflecting charges beginning on July
1. The last invoice was on October 21, 2021. It reflected a
total balance due of $451,183.63, which is the same amount
reflected in exhibit 15. White testified that the monthly state-
ments found in exhibit 10 were prepared by the management
company’s “accounts receivable specialist” in the ordinary
course of business.
   White testified that all the information regarding expenses,
rent, CAM reconciliation, and late fees was sent through
monthly statements to Active Spine and was also readily
available for Active Spine to review. Bogard similarly testi-
fied that he had no reason to believe Active Spine did not
receive the invoices. To his knowledge, they were received.
Indeed, he said, there had been some correspondence “in
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the beginning of this” where Nicholas questioned what the
“‘ACH payment’” was. Bogard added, “But then we’ve never
received any payment.”
   Bogard also said there was no reason why Active Spine
would have been unaware that it needed to pay Ventures’ rent.
The management company sent an email on June 11, 2020,
to the Muchowiczes, as well as a certified overnight mailed
document, explaining that it was the property manager hired
by Ventures and would begin charging rent. Nicholas replied
to the email, and there was confirmation that the letter was
received.
   Entered into evidence as exhibit 21 was a notice setting
forth that it was sent via email and overnight delivery on June
12, 2020, from the management company to Nicholas. The
letter notified Active Spine that effective June 10, Ventures
owned the Property, and that it would be managed through
the company. The notice set forth contact information for
the Property staff and the address for Active Spine payment
remittance and direct correspondence. Additionally, a letter
from the management company to Nicholas, as manager of
DEMU, was entered into evidence as exhibit 20. It shows
that on June 11, the management company asked for docu-
ments to ensure a smooth transition in assuming management
for Ventures.
   Exhibit 11 consisted of 11 pages and contained a general
ledger detailing the CAM costs for the commercial building
from January through December 2020. It also contained a rec-
onciliation of the CAM charges that Active Spine was respon-
sible for paying from June 11 to December 31, 2020, based on
its pro rata share. Exhibit 16 is identical to exhibit 11.
   Both White and Bogard testified that the contents of exhibits
11 and 16 were prepared in the ordinary course of business.
Bogard explained a ledger is where the management com-
pany keeps track of all the expenses paid out of the operating
account for each tenant. Bogard testified the ledger was used
by the management company for monthly financial reporting
and CAM reconciliations.
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   White testified that the CAM reconciliations were sent to
Active Spine by email with monthly statements and that she
had no reason to believe they were not received. She stated
the ledger was not sent to Active Spine but would have been
provided if requested.
   Bogard testified that during his time as the property man-
ager, Active Spine never paid rent or any other charges under
the invoices. Bogard testified without objection that the total
owed as of October 2021 was $451,183.63. Bogart explained
that the base rent amount was originally $10,339.33 per month,
which increased to $10,737 per month in May 2021. The base
rent for the 7-month period was $79,268.20, while the total
CAM charges were $61,402.41. Late fees were incurred over
the 7-month period in the amount of $33,305.73. However,
those rental, CAM, and late fees continued to be incurred after
January 2021 until Ventures was able to lease to a new tenant
in October 2021. Other charges were incurred in acquiring a
new tenant to lease the Property.
   On cross-examination, Bogard testified that his recollection
was that the lease between Active Spine and DEMU began in
May 2019. Bogard clarified that he was not sure if it was April
or May.
   Bogard was questioned on cross-examination about an
overassessment of CAM expenses one year in the amount
of $10,385.57, which was credited back against what Active
Spine owed. Active Spine’s questioning suggested that the
5-percent late fee was incorrectly calculated and compounded
upon an overassessment. On redirect, Bogard testified that the
variance that resulted in the credit was due to the decrease in
the estimated management fee because the management fee
is a percentage of the base rent collected, which Active Spine
failed to pay.
   Active Spine and the Muchowiczes objected to exhibits
10, 11, and 16 under 

 (Reissue
2016) as compilations of other more voluminous documents
that had not been made available. They did not object on any
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other grounds. Active Spine and the Muchowiczes argued the
exhibits were summaries of voluminous writings because they
incorporated CAM charges that are “an amalgamation of things
compiled together and divided over time” and contained “line
items that have to be supported by some other underlying
information.” The court overruled the objections and admitted
all three exhibits.
               (e) Sara’s and Nicholas’ Testimony
   Sara testified that her role at Active Spine was administra-
tive, including accounts receivable and making payments on
Active Spine’s behalf. There was some overlap of duties with
Nicholas, who worked as a physical therapist at Active Spine.
   Both Sara and Nicholas testified that the 2017 Lease was
entered into with the understanding that an SBA loan would
be used to purchase the building at the end of the bridge loan
period. Nicholas opined that the 2017 Lease was not valid
because Scott did not enter into an SBA loan.
   Sara stated that it was not until June 2019 that Active Spine
commenced occupancy of the building. She pointed out that
because a prior tenant had left behind “thousands of cables
coming from the ceilings[,] . . . furniture,” and other things, the
building had not been in “broom-clean condition.” Both Sara
and Nicholas testified that they were not using the whole sec-
ond floor of the building as indicated in the 2017 Lease. Sara
explained that since Scott had canceled the SBA loan, it was
no longer necessary that Active Spine occupy the entirety of
the space. Thus, Ventures was charging Active Spine for space
it was not using.
   Both Sara and Nicholas testified that a couple of weeks
before Active Spine moved into the Property, the parties to
the 2017 lease had agreed to amend it to make it more com-
pliant with the requirements of an SBA loan. An amended
lease was drafted, and, according to Nicholas, in 2019 when
Scott was still the manager, Sara, Nicholas, and Scott had a
meeting and voted to amend the lease accordingly. Nicholas
conceded, however, that the amendment the three of them
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had agreed on was never signed and that later meetings about
amending the lease, which resulted in the Amended Lease,
did not include Scott. The terms of the Amended Lease were
under the advice of Sara and Nicholas’ attorneys and were no
longer focused on the objective of SBA loan compliance. Sara
and Nicholas opined that the failure to inform Scott or include
Scott in the vote on the Amended Lease did not violate provi-
sion 5.7 of the Operating Agreement, because “effect” meant
“to enter into” “[a]s opposed to affect[,] which would mean
modify or change.”
   Both Sara and Nicholas testified that after Nicholas became
the managing member, DEMU gave Active Spine and one of
the other three tenants of the Property abatement on rent dur-
ing the COVID-19 pandemic. That abatement was in place
when Ventures purchased the building. No documentation of
the COVID-19 abatement was provided. Sara and Nicholas
both pointed out that Ventures never sent notice to Active
Spine that it was ending the abatement period.
   Nicholas testified that he did not believe he had a lease
agreement with Ventures, which was why Active Spine never
paid Ventures any rent. At the same time, Nicholas appeared
to deny receiving invoices from Ventures. Sara testified that
Ventures sent Active Spine an invoice via email after pur-
chasing the Property and said, “I don’t know why we were
receiving an invoice from them. They should have been com-
municating with the person they bought it from, the bank, if
they thought more money was owed to them.” She testified
it “felt like harassment.” Sara also pointed out that no non-
disturbance agreement was presented to Active Spine after
Ventures’ acquisition, as required by provision 28.1.2.
   Sara and Nicholas testified neither DEMU nor Ventures ever
provided Active Spine with budgeted direct expenses. In any
event, Sara did not think the charges were “anything [the par-
ties] ever agreed on,” illustrating, “‘Like, no place’s utilities
cost more than your mortgage.’”
   Both Sara and Nicholas admitted Active Spine never paid
rent to Ventures.
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                        (f) Jury Instructions
   The jury instructions given at the close of all the evidence
included a statement of the case. The instructions set forth that
Active Spine had signed the 2017 Lease and that it was “pur-
portedly amended”:
         This case involves a breach of contract on a commercial
      lease, a breach of contract on a personal guarantee and
      unjust enrichment. [Ventures] purchased commercial real
      estate located at 13220 Birch Drive in Omaha, Nebraska
      (the real estate) on June 10, 2020 from a foreclosure sale.
      Nicholas . . . owns [Active Spine]. Active Spine had
      signed a lease with the previous company that owned
      the property. Nicholas and Sara . . . signed a personal
      guarantee for this lease. The lease was purportedly
      amended by Nicholas . . . as the owner of Active Spine
      and as a manager of the previous owner.
         After [Ventures] purchased the real estate, Active Spine
      remained a tenant in the real estate until it was evicted.
      [Ventures] filed this lawsuit against Defendants Active
      Spine and Nicholas and Sara . . . alleging that the
      Defendants are liable for damages.
   The jury was instructed on the breach of contract claim
that Ventures claimed that Active Spine “breached the terms
of a contract (lease) by not paying rent and other charges due
pursuant to the contract (lease) between June 11, 2020 and
November 1, 2021. [Active Spine] denies these allegations.”
The jury was further instructed that it was Ventures’ burden
to prove the terms of “the contract (lease),” that Active Spine
breached the contract, that the breach was a proximate cause of
some damage, and the nature and extent of that damage. The
jury was instructed on the definition of proximate cause. It was
instructed that “[a] landlord is entitled to recover unpaid rent,
expenses and late charges.”
   The jury was instructed that if it found Ventures had met
its burden of proof for the breach of contract claim, it must
consider Active Spine’s affirmative defenses that the claim is
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barred by the doctrines of estoppel, waiver, and unclean hands
and must render a verdict in favor of Active Spine if it so finds.
Definitions for those affirmative defenses were given.
   A similar instruction was given with respect to the alleged
breach of the personal guarantee on the lease. The jury was
also instructed on unjust enrichment, which was to be reached
only if it found that Ventures had not met its burden on the
breach of contract claim.
   The jury was generally instructed it was the judge’s duty to
tell it what the law is and the jury’s duty to decide the facts
and apply the law to those facts.
   At the jury instruction conference, Active Spine and the
Muchowiczes did not object to any of the instructions. They
offered a jury instruction defining a personal guarantee, which
the court did not give because it believed the instruction
on breach of guarantee was adequate. Active Spine and the
Muchowiczes did not offer any other instructions.
                           (g) Jury Verdict
   The jury rendered a verdict in favor of Ventures in the
amount of $593,723.82 under two out of the three verdict
forms submitted to it. The record does not reflect that the par-
ties requested verdict forms other than those submitted.
   In the first verdict form, the jury found that Ventures had met
its burden of proof on its claim that Active Spine “breached the
terms of a contract (lease) by not paying rent and other charges
due pursuant to the contract (lease) between June 11, 2020 and
November 1, 2021.”
   In the second verdict form, the jury found that Ventures had
met its burden of proof on the claim that the Muchowiczes
executed a personal guarantee guaranteeing the payment of all
rent and other charges due under the lease with Active Spine
and breached the terms of the personal guarantee by not paying
rent and other charges due pursuant to the lease between June
11, 2020, and November 1, 2021.
   Because it found that Ventures had met its burden as to the
breach of contract and breach of guarantee, the jury did not
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reach the issue of unjust enrichment presented in a third ver-
dict form.
   Judgment was rendered on the verdicts for Ventures in the
total sum of $593,723.82.

               (h) Motion for New Trial or JNOV
   Active Spine and the Muchowiczes timely moved for a
new trial or JNOV. They had previously moved for a directed
verdict at the close of Ventures’ case and again at the close of
all the evidence, but they did not give any specific reasons for
the motions.
   In their motion for new trial or JNOV, Active Spine and the
Muchowiczes alleged that the “jury erred in its analysis of the
proofs.” They elaborated that it did so in three respects.
   First, they argued that “[n]o evidence of any kind was
produced establishing that the personal guarantees which
[Ventures] was attempting to enforce had been assigned to
[Ventures].”
   Second, they alleged that because the exhibit presented to
the jury erroneously showed a damages commencement date
of May instead of June 2020, the underlying principal and
resulting late fee percentages were incorrect, resulting in a
damages calculation that was “inherently wrong” due to “the
effect of the compounding of interest.”
   Third, Active Spine and the Muchowiczes asserted that the
jury erred in awarding damages that included CAM expenses.
They argue the jury disregarded the word “shall” in the lease
respecting the landlord’s duty to notify Active Spine of the
budgeted direct expenses before Active Spine had a duty to pay
those expenses.
   In the discussion of the motions before the trial court,
Active Spine and the Muchowiczes explained that the most
fundamental error was the jury’s miscalculation of damages
based on a demonstrative exhibit that started the CAM cal-
culations a month too early. They also reiterated the alleged
failure of Ventures, after the first year, to provide Active
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Spine with the notice of the budgeted direct expenses. They
argued this excused Active Spine from paying those expenses.
Active Spine and the Muchowiczes summarized that the
jury’s calculations started “with a wrong premise” and “a
month too early.”
   The district court overruled the motion. It explained that
there was sufficient evidence for the jury to rule in Ventures’
favor and that the jury’s award of $593,723.82 was not clearly
wrong. Active Spine and the Muchowiczes appeal.
                III. ASSIGNMENTS OF ERROR
   Active Spine and the Muchowiczes assign on appeal that the
district court erred by (1) overruling their motion for JNOV,
(2) overruling their motion for new trial, (3) granting initial
eviction proceedings without a jury and based upon the evi-
dence before it, and (4) admitting exhibits 10, 11, and 16.
                  IV. STANDARD OF REVIEW
   [1] The evidential use of summaries rests within the sound
discretion of the trial judge, whose action in allowing their use
may not be disturbed by an appellate court except for an abuse
of discretion. 3
   [2] A jury verdict will not be disturbed unless it is clearly
wrong, 4 and it is sufficient if there is competent evidence
presented to the jury upon which it could find for the success-
ful party. 5
   [3] 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. 6
3
  Crowder v. Aurora Co-op Elev. Co., 

, 

  (1986).
4
  Commerce Sav. Scottsbluff v. F.H. Schafer Elev., 

, 

 (1989).
5
  In re Estate of Koetter, 

, 

 (2022).
6
  Bradley T. & Donna T. v. Central Catholic High Sch., 

, 

 (2002).
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   [4] An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. 7
   [5] To sustain a motion for JNOV, the court resolves the con-
troversy as a matter of law and may do so only when the facts
are such that reasonable minds can draw but one conclusion. 8
   [6] A motion for JNOV may be granted when the movant’s
previous motion for directed verdict, made at the conclusion of
all the evidence, should have been sustained. 9
   [7] Review of a ruling on a motion for JNOV is de novo on
the record. 10
   [8] A trial court cannot commit error in resolving an issue
never presented and submitted to it for disposition. 11
   [9] An issue not presented to or passed on by the trial court
is not appropriate for consideration on appeal. 12
   [10] Pursuant to 

 (Reissue
2016), an argument not previously asserted as grounds for a
directed verdict is not preserved as grounds for JNOV. 13
   [11] To be considered by an appellate court, the party assert-
ing an alleged error must both specifically assign and specifi-
cally argue it in the party’s initial brief. 14
7
   State v. Archie, 

, 

 (2007).
8
   LeRette v. Howard, 

, 

 (2018).
 9
   Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., 

, 

 (2018).
10
   In re Estate of 

.
11
   Brown v. Jacobsen Land & Cattle Co., 

, 

   (2017).
12
   Sherman T. v. Karyn N., 

, 

 (2013).
13
   See Parks v. Merrill, Lynch, 

, 

 (2004).
14
   Timothy L. Ashford, PC LLO v. Roses, 

, 

   (2023).
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                         V. ANALYSIS
                   1. Eviction Proceedings
    Active Spine and the Muchowiczes’ assignment of error
pertaining to Ventures’ cause of action for forcible entry
and detainer is procedurally barred. Under 

,219 through 25-21,235 (Reissue 2016 & Cum. Supp.
2022), forcible entry and detainer is appropriate when the ten-
ant is holding over the lease term by failing to pay rent when
it became due, and the district court found that the rent was
due despite Active Spine’s allegation of an ongoing COVID-19
abatement period. In our prior opinion, we affirmed the district
court’s order of restitution of the premises. As Active Spine
and the Muchowiczes conceded at oral arguments, the district
court’s order was the law of the case.
    [12,13] Under the law-of-the-case doctrine, an appellate
court’s holdings on issues presented to it conclusively settle
all matters ruled upon, either expressly or by necessary impli-
cation. 15 Furthermore, a decision made at a previous stage of
litigation, which could have been challenged in the ensuing
appeal but was not, becomes the law of the case; the parties
are deemed to have waived the right to challenge that deci-
sion. 16 We expressly settled the question of Active Spine and
the Muchowiczes’ right to a jury trial in the forcible entry and
detainer action. And Active Spine and the Muchowiczes could
have, but did not, challenge in the prior appeal the court’s fac-
tual findings leading to the order of eviction or its failure to
consider the validity of the CAM charges.
               2. Voluminous Record Exhibits
              Allegedly Erroneously Admitted
   With respect to the trial on remand for breach of contract,
breach of personal guarantee, and unjust enrichment, we find,
first, that the district court did not abuse its discretion in
15
     Pennfield Oil Co. v. Winstrom, 

, 

 (2008).
16
     

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admitting exhibits 10, 11, and 16. We hold that the exhibits are
not summaries as contemplated by § 27-1006 and were admis-
sible as business records.
   [14] Section 27-1006 permits the use of charts, summaries,
or calculations of the contents of voluminous writings, record-
ings, or photographs that cannot conveniently be examined
in court, so long as the requirements of the statute are met.
Section 27-1006 provides:
         The contents of voluminous writings, recordings, or
      photographs which cannot conveniently be examined in
      court may be presented in the form of a chart, summary,
      or calculation. The originals, or duplicates, shall be made
      available for examination or copying, or both, by other
      parties at a reasonable time and place. The judge may
      order that they be produced in court.
We have held that for the admission of an exhibit into evidence
pursuant to § 27-1006, the proponent of the “chart, summary,
or calculation” must (1) reasonably identify the existing and
underlying documents summarized, including identification
of the ultimate source of documentary information contained
in the proposed summary; (2) show that the original docu-
ments or duplicates underlying the proposed summary and the
data contained in those underlying documents are otherwise
admissible evidence; (3) have served a copy of the proposed
summary on the opposing party, sufficiently in advance of
intended use of the summary, and have provided the oppos-
ing party with a reasonable time and place for examination
of the available documents underlying such summary; and (4)
establish that the documents underlying the summary are volu-
minous. 17 A factual foundation, demonstrating a fulfillment of
each of the four factors set forth above, is a condition prece-
dent to admissibility of a written summary under § 27-1006. 18
17
     Crowder v. Aurora Co-op. Elev. Co., supra note 3.
18
     Id.
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Section 27-1006 is Nebraska’s counterpart to Fed. R. Evid.
1006 and is substantially similar to the federal rule. 19
   [15] Under 

 (Reissue 2016), also
part of article 10 of the rules of evidence,
          [t]o prove the content of a writing, recording, or pho-
      tograph, the original writing, recording, or photograph is
      required, except as otherwise provided in these rules or
      by Act of Congress or of the Legislature of the State of
      Nebraska or by other rules adopted by the Supreme Court
      of Nebraska.
(Emphasis supplied.) The permissive language of federal rule
1006 “makes it clear that Rule 1006 does no more than create
an exception to Federal Rule of Evidence 1002, which requires
an original to prove contents of writings, recordings, and
photographs.” 20 Section 27-1006 is an exception to the require-
ment of § 27-1002 that the originals must be presented to prove
the contents of writings, recordings, and photographs.
   Under 

 (Cum. Supp. 2022) of the
rules of evidence, we have held that routine recordkeeping,
essential to the conduct of business, produces the reliabil-
ity necessary for admissibility of business records. 21 Section
27-803 of the rules of evidence provides that business records
are not excluded by the hearsay rule. Under 

(3) (Cum. Supp. 2022), “[h]earsay is a statement,
other than one made by the declarant while testifying at the
trial . . . offered in evidence to prove the truth of the matter
asserted.” Under 

 (Reissue 2016),
“[h]earsay is not admissible except as provided by these rules,
by other rules adopted by the statutes of the State of Nebraska,
or by the discovery rules of the Supreme Court.” Business
records are defined as
19
   

20
   31 Charles Alan Wright & Victor J. Gold, Federal Practice and Procedure
   § 8043 at 522 (2021).
21
   Crowder v. Aurora Co-op. Elev. Co., supra note 3.
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      [a] memorandum, report, record, or data compilation,
      in any form, of acts, events, or conditions, other than
      opinions or diagnoses, that was received or acquired in
      the regular course of business by an entity from another
      entity and has been incorporated into and kept in the
      regular course of business of the receiving or acquiring
      entity; that the receiving or acquiring entity typically
      relies upon the accuracy of the contents of the memo-
      randum, report, record, or data compilation; and that the
      circumstances otherwise indicate the trustworthiness of
      the memorandum, report, record, or data compilation, as
      shown by the testimony of the custodian or other quali-
      fied witness. 22
   Active Spine and the Muchowiczes did not object based on
hearsay, but the uncontradicted testimony of White and Bogard
established that the exhibits, consisting of invoices prepared
by an accounts receivable specialist in the regular course of
business, a general ledger of the property management com-
pany pertaining to expenses for the Property prepared in the
regular course of business, and a reconciliation prepared in
the regular course of business, are business records. Indeed,
Active Spine and the Muchowiczes appeared to concede this
point at oral arguments.
   Exhibits 10, 11, and 16 are, as defined by § 27-803(6)(b),
data compilations of acts, events, or conditions received or
acquired in the regular course of business “by an entity from
another entity,” incorporated into and kept in the regular
course of business of the receiving or acquiring entity. There
is no dispute that the CAM charges were received from the
third-party providers in Ventures’ normal course of business.
Also, White and Bogard testified that the documents were
created in the ordinary course of business and that the man-
agement company typically relied upon the accuracy of the
22
     § 27-803(6)(b).
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contents of the invoices, ledger, and reconciliation in conduct-
ing its operations.
   Active Spine and the Muchowiczes argue that, regardless
of whether they qualify as business records, the exhibits are
charts, summaries, or calculations of voluminous writings,
recordings, or photographs—for essentially the same reason
that they are business records. They argue the management
company’s records reflect the invoices of third parties who
provided maintenance-related services for the Property and
assert that these underlying third-party invoices are so numer-
ous that they cannot conveniently be examined in court. As
such, Active Spine and the Muchowiczes assert that while
Ventures demonstrated the underlying documents were volu-
minous, the “summaries” are inadmissible because Ventures
did not establish the admissibility of the underlying third-party
invoices or make them available as required by § 27-1006.
   Section 27-1006 does not state that any exhibit that might be
characterized as a chart, summary, or calculation must satisfy
the criteria for admissibility under § 27-1006 in order to be
admissible. Rather, § 27-1006 gives the proponent an avenue
to admit evidence over an objection under § 27-1002, which
provides that the original is required to prove the content of
a writing, recording, or photograph “except as otherwise pro-
vided in these rules or by Act of Congress or of the Legislature
of the State of Nebraska or by other rules adopted by the
Supreme Court of Nebraska.” The exception to the require-
ment of providing the original is not limited to the exception
set forth in § 27-1006.
   [16,17] Active Spine and the Muchowiczes did not object
under § 27-1002, and it is therefore questionable whether
they preserved the alleged error. In any event, it is gener-
ally understood that ledgers and similar records, relevant and
admissible in their own right as business records and without
regard to the admissibility of their underlying materials, do
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not fall under §§ 27-1002 and 27-1006 23 because they are
not summaries as defined by § 27-1006, 24 but are considered
the original writings. If produced reasonably contemporane-
ously with the transaction and in the normal course of busi-
ness, records derived from more numerous detailed documents
memorializing individual transactions are business records and
not § 27-1006 summaries thereof. 25
   Thus, in U-Haul Intern., Inc. v. Lumbermens Mut. Cas.
Co., 26 a suit brought by the insured and the primary insurer
against an excess insurer, the appellate court found the require-
ments for admissibility under federal rule 1006 were inappli-
cable to the computer-generated summaries of payments made
on claims, which showed the indemnity and expenses paid on
the claims, the names of each vendor paid on the claims, the
total amounts paid to each vendor, vendor numbers, transac-
tion dates, check numbers, and amounts of payments made.
In other words, third-party documents were incorporated into
the documents. The appellate court explained that the docu-
ments were business records because they were compiled in
the ordinary course of business. The documents were “the
writings at issue, not summaries of other evidence”; there-
fore, the underlying documents were not required for their
admissibility. 27
   As explained in another case, United States v. Draiman, 28
entries on a business record are not secondary summaries and
23
   See Annot., 

 (2004).
24
   See Smith v. Alternative Resources Corp., 

 (9th Cir.
   2005).
25
   See, e.g., U.S. v. Catabran, 

 (9th Cir. 1988); United States v.
   Sanders, 

 (5th Cir. 1984); In re Gulph Woods Corp., 

 (E.D. Pa. 1988).
26
   U-Haul Intern., Inc. v. Lumbermens Mut. Cas. Co., 

 (9th Cir.
   2009). See, also, e.g., United States v. Sanders, supra note 25.
27
   U-Haul Intern., Inc. v. Lumbermens Mut. Cas. Co., supra note 26, 

.
28
   United States v. Draiman, 

 (7th Cir. 1986).
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are admissible as original entries, regardless of availability of
the underlying documents:
      [Federal rule] 1006 contemplates the admission of a sum-
      mary, prepared for trial, as secondary evidence of “volu-
      minous writings, recordings or photographs” that could
      not conveniently be introduced at trial. . . . The entries
      on a business record, however, are considered the origi-
      nal entries, and therefore the business record is admis-
      sible without regard to the availability of the underlying
      documents. 29
Draiman also highlights the understanding by some courts that
federal rule 1006 is “inapplicable to evidence that is in the
form of a summary or chart but was prepared in connection
with the events in question rather than for use at trial.” 30
   Few cases in Nebraska have discussed § 27-1006, but our
case law is consistent with these principles. In Groenewold v.
Building Movers, Inc., 31 we held that a list compiled by the
owner of a house-moving business enumerating the names of
persons for whom he had performed services, the amounts
the customers had paid him, and the dates the services were
performed was not a summary of voluminous documents. We
said the list contained the ultimate facts and sufficient founda-
tion was laid for its admission. In Crowder v. Aurora Co-op.
Elev. Co., 32 on the other hand, we held that written summaries
of thousands of sale tickets and 61 contracts during the dis-
puted period were inadmissible. We observed that the “real
or substantial evidence” was presented to the jury through the
summaries, which contained hearsay that did not qualify as an
29
   Id. at 256 n.6, quoting 5 Jack B. Weinstein & Margaret A. Berger,
   Weinstein’s Evidence ¶ 1006[01]-[02] (1983).
30
   31 Wright & Gold, supra note 20, § 8043 at 527. See, also, Atlantic
   Specialty Ins. v. Coastal Environmental, 

 (2d Cir. 2019).
31
   Groenewold v. Building Movers, Inc., 

, 

   (1976).
32
   Crowder v. Aurora Co-op. Elev. Co., supra note 3.
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exception to the hearsay rule. 33 There was no indication that
the summaries were prepared in the regular course of business
and would have qualified as business records.
   Active Spine and the Muchowiczes argue that the exhibits
in question are distinguishable from those in Groenewold and
similar to those in Crowder. They assert the exhibits were
not admissible unless they satisfied § 27-1006 because the
information that the invoices, ledger, and reconciliation incor-
porate are from third parties, rather than from other internal
sources. We find no merit to this argument. As already noted,
§ 27-803(6)(b) specifically refers to a memorandum, report,
record, or data compilation “received or acquired in the regular
course of business . . . from another entity.”
   Ventures submitted the exhibits in question as the real
and substantial evidence relevant to showing that the charges
reflected therein were owed. As business records, they have
the necessary reliability for admissibility as original documents
as opposed to secondary summaries. The district court did not
err in overruling Active Spine and the Muchowiczes’ objection
under § 27-1006 and admitting exhibits 10, 11, and 16.
            3. Motions for New Trial or JNOV
   Lastly, we hold that the district court did not err in over-
ruling Active Spine and the Muchowiczes’ motion for new
trial or JNOV. Active Spine and the Muchowiczes admit that
exhibits and testimony admitted into evidence at trial support
the amount of damages awarded but assert on appeal that the
jury’s verdict was excessive because (1) no reasonable jury
could have found that Ventures’ costs associated with incentiv-
izing a new tenant to lease the premises were tied to the breach
of Active Spine; (2) the uncontradicted evidence was that
Active Spine was in ongoing COVID-19-related rent abate-
ment; (3) there was no evidence that Ventures gave Active
Spine notice of the budgeted direct expenses as described
33
     Id. at 716, 

.
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under the 2017 Lease, an alleged condition precedent to the
obligations to pay the CAM charges billed; and (4) “[t]he clear
and uncontradicted evidence is that the lease amendment had
occurred,” 34 from which they argue it follows that the lease
ended January 2021, 6 months after Ventures’ forcible entry
and detainer action.
   Only one of these arguments was presented to the trial court
in relation to Active Spine and the Muchowiczes’ motion for
new trial or JNOV: that notice of budgeted direct expenses
was a condition precedent to Active Spine’s obligations to pay
direct expenses billed to it. No specific arguments were made
with respect to the motion for a directed verdict that was the
precursor to the motion for new trial or JNOV.
   

 (Reissue 2016) sets forth the pos-
sible reasons for granting a new trial and defines a new trial as
“a reexamination in the same court of an issue of fact”:
         A new trial is a reexamination in the same court of
      an issue of fact after a verdict by a jury, report of a
      referee, or a trial and decision by the court. The former
      verdict, report, or decision shall be vacated and a new
      trial granted on the application of the party aggrieved
      for any of the following causes affecting materially the
      substantial rights of such party: . . . (4) excessive dam-
      ages, appearing to have been given under the influence
      of passion or prejudice; (5) error in the assessment of the
      amount of recovery, whether too large or too small, if the
      action is upon a contract or for the injury or detention of
      property; (6) that the verdict, report, or decision is not
      sustained by sufficient evidence or is contrary to law; . . .
      and (8) error of law occurring at the trial and excepted to
      by the party making the application.
   [18,19] A motion for new trial is to be granted only when
error prejudicial to the rights of the unsuccessful party has
34
     Brief for appellants at 23.
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occurred. 35 Unless such error appears, a party who has sus-
tained the burden and expense of trial, and who has succeeded
in securing a verdict on the facts in issue, has a right to keep
the benefit of that verdict. 36 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. 37 Thus, 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 dis-
cretion. 38 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 39
   

 (Reissue 2016) states that the
application for a new trial shall be by a motion upon written
grounds:
         The application for a new trial shall be by motion,
      upon written grounds, filed at the time of making the
      motion. It shall be sufficient, however, in assigning the
      grounds of the motion to assign the same in the language
      of the statute and without further or other particularity.
      The causes enumerated in subdivisions (2), (3), and (7) of
      section 25-1142 shall be sustained by affidavits showing
      their truth and may be controverted by affidavits.

 (Reissue 2016), enacted in 1982, 40
provides for when a motion for new trial is or is not a “prereq-
uisite to obtaining appellate review”:
35
   Bradley T. & Donna T. v. Central Catholic High Sch., supra note 6.
36
   See Commerce Sav. Scottsbluff v. F.H. Schafer Elev., supra note 4.
37
   Orduna v. Total Constr. Servs., 

, 

 (2006).
38
   Bradley T. & Donna T. v. Central Catholic High Sch., supra note 6.
39
   State v. 

.
40
   1982 Neb. Laws, L.B. 720, § 1.
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         (1) A motion for a new trial shall not be a prerequisite
      to obtaining appellate review of any issue upon which the
      ruling of the trial court appears in the record.
         (2) When an action has been tried before a jury a
      motion for a new trial shall not be a prerequisite to
      obtaining appellate review of the sufficiency of the evi-
      dence, but a motion for a new trial shall be a prerequisite
      to obtaining appellate review of the issue of inadequate or
      excessive damages.
   Before the enactment of § 25-1912.01, we held that when
a party did not file a motion for new trial below, the appel-
late court could only review the record to determine whether
the judgment is supported by the pleadings. 41 By enacting
§ 25-1912.01, the Legislature “dispensed with the necessity of
a motion for new trial as a prerequisite to appellate review in
certain situations.” 42 Since then, we have held that the failure
to file a motion for new trial does not limit our review of a rul-
ing of the trial court that appears in the record. 43 This includes,
for example, the court’s rulings on the admission or exclusion
of evidence and on the amendment of pleadings, 44 whereas
before these were matters that required a motion for new trial
to preserve them for review on appeal. 45 And, as stated in the
statute, no motion for new trial need be made as a prerequi-
site for appellate review of the sufficiency of the evidence.
In contrast, a motion for new trial must be made to preserve
appellate review of allegedly inadequate or excessive damages
unsupported by the evidence. 46
41
   See Sempek v. Sempek, 

, 

 (1977), and
   Nebraska State Bank v. Dudley, 

, 

 (1979).
42
   Dunn v. Hemberger, 

, 

 (1988).
43
   Professional Recruiters v. Oliver, 

, 

 (1990).
44
   See, State v. Blair, 

, 

 (1988); Caro, Inc. v.
   Roby, 

, 

 (1983).
45
   See Petersen v. Petersen, 

, 

 (1981).
46
   First Nat. Bank North Platte v. Cardenas, 

, 

   (2018).
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   [20,21] We do not read § 25-1912.01 as modifying our
longstanding case law holding that an appellant assigning as
error on appeal the denial of a motion for new trial does not
properly raise as grounds for trial court error any grounds that
were never assigned or argued to the trial court with respect
to the motion. 47 A trial court cannot commit error in resolving
an issue never presented and submitted to it for disposition, 48
and an issue not presented to or passed on by the trial court
is not appropriate for consideration on appeal. 49 Statements
made at high levels of generality do not sufficiently preserve
an argument for decision. 50 A trial court cannot err in fail-
ing to grant a motion for new trial for a reason not raised in
the motion. 51
   [22] A motion for JNOV differs from a motion for new trial
in that it requests that the court not only nullify the jury ver-
dict, but also enter judgment in favor of the moving party. 52 A
motion for JNOV is referred to in § 25-1315.02, which states
that a party may move for JNOV in accordance with the mov-
ing party’s motion for a directed verdict:
         Whenever a motion for a directed verdict made at the
      close of all the evidence is denied or for any reason is
      not granted, the court is deemed to have submitted the
      action to the jury subject to a later determination of the
      legal questions raised by the motion. No later than ten
      days after the entry of judgment, a party who has moved
47
   See, e.g., Peters v. Peters, 

, 

 (1975); Bulger
   v. Prenica, 

, 

 (1913); Sullivan v. State, 

, 

 (1899).
48
   Brown v. Jacobsen Land & Cattle Co., supra note 11.
49
   Sherman T. v. Karyn N., supra note 12.
50
   Davidson v. Fairchild Controls Corp., 

 (5th Cir. 2018).
51
   See Bridwell v. Walton, 

, 

 (2019). See, also,
   Parks v. Merrill, Lynch, supra note 13; Humphrey v. Nebraska Public
   Power Dist., 

, 

 (1993).
52
   25A Phillip Barber, Post-Trial Procedure and Appeal, Rocky Mtn. Min. L.
   Spec. Inst. ch. 12 (1989).
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      for a directed verdict may move to have the verdict
      and any judgment entered thereon set aside and to have
      judgment entered in accordance with the moving party’s
      motion for a directed verdict. . . . A motion for a new
      trial may be joined with this motion, or a new trial may
      be prayed for in the alternative.

 (Reissue 2016) provides, in rel-
evant part, that “[a] motion for a directed verdict shall state
the specific grounds therefor.” A motion for JNOV may be
granted when the movant’s previous motion for directed ver-
dict, made at the conclusion of all the evidence, should have
been sustained. 53
   [23-25] Like with a motion for new trial, a trial court does
not err by denying a motion for JNOV on a ground not pre-
sented to it in the motion. 54 Perhaps more fundamentally, we
have held that pursuant to §§ 25-1315.01 and 25-1315.02, an
argument not previously asserted as grounds for a directed
verdict is not preserved as grounds for JNOV. 55 Since a motion
for JNOV is simply a renewal of the motion for directed
verdict made at the close of all the evidence, any arguments
made in a motion for JNOV that were not made in the motion
for directed verdict are not preserved for appellate review of
denial of the motion. 56 A precursor motion for directed verdict
that fails to comply with the statutory requirements of
53
   Facilities Cost Mgmt. Group v. Otoe Cty. Sch. Dist., supra note 9.
54
   See, Energy Transp. Group v. William Demant Holding A/S, 

   (Fed. Cir. 2012); Tuttle v. Metro. Gov’t of Nashville, 

 (6th
   Cir. 2007); Marfia v. T.C. Ziraat Bankasi, 

 (2nd Cir. 1998),
   modified, Baron v. Port Authority of New York and New Jersey, 

 (2d Cir. 2001); Waddell v. Grant/Riverside Medical Care, 

, 

 (Ohio App. 2017); Lee v. West Kern Water Dist., 

, 

 (2016); Alonso v. State, 

 (Miss. App. 2002); Peavy v. Goodroe, 

, 

 (1999).
55
   See, e.g., Parks v. Merrill, Lynch, supra note 13; Mitchell v. Cedar Rapids
   Community School, 

 (Iowa 2013).
56
   See, e.g., Carr v. Nance, 

 (Ark. 2010).
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specificity fails to provide a basis for rendition of JNOV and
preserves nothing for review. 57
            (a) COVID-19 Abatement, Costs of New
                  Tenancy, and Amended Lease
   Active Spine and the Muchowiczes failed to preserve for
appeal their arguments that the court should have granted a
new trial or JNOV because (1) no reasonable jury could have
found that Ventures’ costs associated with incentivizing a
new tenant to lease the premises were a result of the breach,
(2) Active Spine was occupying the Property under an ongo-
ing COVID-19-related rent abatement, and (3) the Amended
Lease was effective and terminated the tenancy earlier than
reflected in the damages award. Their motion for directed
verdict was made at a high level of generality that failed to
preserve any “legal questions” as described in § 25-1315.02.
Moreover, Active Spine and the Muchowiczes could have, but
did not, raise in their alternative motion for new trial or JNOV
the question of liability for costs related to securing the new
tenancy, the alleged COVID-19 abatement, and the termina-
tion of the tenancy under the terms of the Amended Lease.
Because they did not raise these challenges in any motion
for new trial, directed verdict, or JNOV, the challenges are
procedurally barred. The argument pertaining to COVID-19
abatement is procedurally barred for the additional reason that
it was considered and implicitly rejected by the district court
in the forcible entry and detainer proceedings and is the law
of the case.
                (b) Budgeted Direct Expenses
  Because Ventures’ failure to send Active Spine an annual
notice of budgeted direct expenses was assigned below in the
motion for new trial, we address whether the district court
57
     See, e.g., Allied Building Credits, Inc. v. Damicus, 

, 

 (1958); Piers v. Dept. of Corrections, 

 (Mo.
     App. 2024).
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abused its discretion by failing to grant a new trial on the
grounds that no notice of the annual budgeted direct expenses
was sent to Active Spine for the 2021 calendar year and that
such notice was a condition precedent to Active Spine’s duty
to pay the CAM charges reflected in the invoices. Because this
was not raised in the motion for directed verdict, however, we
find that the district court could not have erred in failing to
grant JNOV on this basis.
   [26] Active Spine and the Muchowiczes acknowledge they
received notification of the budgeted direct expenses through
the invoices setting forth their monthly share of those expenses,
but assert that Ventures’ providing them with a prior annual
estimate of the budgeted direct expenses was a condition prec-
edent to Active Spine’s obligation to pay CAM charges. Active
Spine and the Muchowiczes do not provide legal support for
their conclusion that prior notice of the total annual budgeted
direct expenses was a condition precedent to its obligations
to pay the CAM charges, and it is questionable whether their
assignment of error was specifically argued. Where an appel-
lant’s brief contains conclusory assertions unsupported by a
coherent analytical argument, it fails to satisfy the requirement
that for an alleged error to be considered by an appellate court,
the party asserting the alleged error must both specifically
assign and specifically argue it in the party’s initial brief. 58 In
any event, for several reasons, the district court did not abuse
its discretion by failing to grant a new trial because no notice
of the annual budgeted direct expenses was sent to Active
Spine for the 2021 calendar year.
   [27] A condition precedent includes a condition which must
be fulfilled before a duty arises to perform an existing con-
tract. 59 However, the general rule with respect to what per-
formance is required when a contract is made for the agreed
58
     See Dycus v. Dycus, 

, 

 (2020).
59
     See Dick v. Koski Prof. Group, 

, 

 (2020),
     modified on denial of rehearing 

, 

 (2021).
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exchange of two performances, one of which is to be rendered
first, is not strict, literal, and exact compliance with the terms
of the contract, but, rather, only substantial compliance or
substantial performance. 60 Thus, when the parties have entered
into a bilateral contract calling for an exchange of perform­
ances, and one of the parties must perform first, that party’s
substantial performance is a constructive condition precedent
to the other’s duty to render the return performance prom-
ised. 61 Material breach and substantial performance are gener-
ally questions of fact. 62
   We agree that there was no evidence at trial that Ventures
sent Active Spine an annual notice of budgeted direct expenses
on or before January 1. It would be speculation that this was
sent by DEMU before Ventures’ purchase in June 2020.
   [28] This lack of evidence may be because Active Spine and
the Muchowiczes did not plead as an affirmative defense the
failure to perform the alleged condition precedent of sending a
notice of budgeted direct expenses; thus, Ventures did not have
notice that it had to defend against this claim. In a breach of
contract action, the failure to plead with sufficient particular-
ity to give the plaintiff fair notice of the affirmative defense
of denial of performance of a condition precedent to a duty to
perform under the contract waives any such defense. 63
60
   15 Richard A. Lord, A Treatise on the Law of Contracts by Samuel
   Williston § 44:52 (4th ed. 2014). See, also, e.g., City of Sidney v.
   Municipal Energy Agency of Neb., 

, 

 (2018);
   RM Campbell Indus. v. Midwest Renewable Energy, 

, 

 (2016).
61
   

62
   Siouxland Ethanol v. Sebade Bros., 

, 

 (2015).
63
   See, Haffke v. Signal 88, 

, 

 (2020); ACI
   Worldwide Corp. v. Baldwin Hackett & Meeks, 

, 

 (2017); In re Estate of Hockemeier, 

, 

   (2010); Preston v. Omaha Cold Storage Terminals, 

, 

 (2007); Fuhrman v. State, 

, 

   (2003), disapproved on other grounds, Jill B. & Travis B. v. State, 

, 

 (2017).
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   Neb. Ct. R. Pldg. § 6-1109(c) (rev. 2008) requires, under
“Conditions Precedent”: “In pleading the performance or
occurrence of conditions precedent, it is sufficient to aver
generally that all conditions precedent have been performed
or have occurred. A denial of performance or occurrence shall
be made specifically and with particularity.” Further, Neb. Ct.
R. Pldg. § 6-1108(c) provides: “In pleading to a preceding
pleading, a party shall set forth affirmatively . . . any . . . mat-
ter constituting an avoidance or affirmative defense.” Under
§ 6-1108(c), if a defendant wants to contest any of the condi-
tions of the contract under which the plaintiff has brought an
action for breach, “[t]he defendant must specifically allege in
its answer which condition(s) it claims did not occur.” 64 And
failure to perform a condition precedent of the contract under
which the plaintiff brings the claim for breach is an affirma-
tive defense. 65
   We are aware that an issue not raised by the pleadings may
be tried by the parties’ express or implied consent—if the par-
ties recognized that an issue not presented by the pleadings
entered the case at trial. 66 Ventures did not object to Active
Spine and the Muchowiczes’ attorney’s questioning regarding
whether a notice of budgeted direct expenses had been sent. It
is not clear, however, that this qualified as implied consent to
try the question. Active Spine and the Muchowiczes’ attorney
appeared to briefly raise, through comments or questioning of
the witnesses, numerous theories as to why Active Spine and
the Muchowiczes should not be found liable, some of which
involved questions of law, rather than questions of fact, and
none of which were objected to.
64
   John P. Lenich, Nebraska Civil Procedure § 9:17 at 485 (2024). See, also,
   Preston v. Omaha Cold Storage Terminals, supra note 63.
65
   See Weber v. North Loup River Pub. Power, 

, 

 (2014).
66
   See Blinn v. Beatrice Community Hosp. & Health Ctr., 

, 

 (2006).
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   Ultimately, no jury instructions were requested by Active
Spine and the Muchowiczes on those theories. Most relevant,
no jury instructions were requested on the defense of failure
to substantially perform a condition precedent. Neither did
Active Spine and the Muchowiczes request that the issue of
failure to perform a condition precedent be submitted to the
jury in a special verdict form.
   [29,30] Other courts have held that the failure to proffer an
instruction on an affirmative defense waives any error in the
verdict with respect to the issue. 67 We have said one cannot
silently tolerate error, gamble on a favorable result, and then
complain that one guessed wrong. 68 Furthermore, where a gen-
eral verdict is returned for one of the parties, and the mental
processes of the jury are not tested by special interrogatories to
indicate which issue was determinative of the verdict, it will be
presumed that all issues were resolved in favor of the prevail-
ing party. 69
   The jury was presented at trial with evidence of the failure
to send the annual budgeted direct expenses. It was also pre-
sented with the evidence that these budgeted direct expenses
were represented in a monthly division in the invoices that
Ventures sent to Active Spine. It was instructed on breach of
contract. It implicitly found the lack of a prior notice of the
annual estimate of the direct expenses immaterial to whether
Active Spine breached the contract by failing to pay the CAM
charges. To the extent this was due to a failure to instruct
the jury on the affirmative defense of failure to substantially
perform a condition precedent, it is waived. The district court
67
   See, J.B. Hunt Transp., Inc. v. Doss, 

, 

   (1995); Superior Broadcast v. Doud Media Group, 

 (Tex.
   App. 2012); Missouri Dept. of Transp. ex rel. v. SAFECO, 

   (Mo. App. 2002), overruled on other grounds, Badahman v. Catering St.
   Louis, 

 (Mo. 2013).
68
   de Vries v. L & L Custom Builders, 

, 

 (2021).
69
   See 

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did not abuse its discretion in denying Active Spine and the
Muchowiczes’ motion for new trial.
                     VI. CONCLUSION
   For the foregoing reasons, we affirm the judgment of the
district court.
                                                Affirmed.
   Miller-Lerman, J., not participating.