Pat Thomas Constr. v. Dobson Brothers Constr. Co. ( 2020 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
PAT THOMAS CONSTR. V. DOBSON BROTHERS CONSTR. CO.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
PAT THOMAS CONSTRUCTION, INC., A NEBRASKA CORPORATION, APPELLANT,
V.
DOBSON BROTHERS CONSTRUCTION COMPANY, APPELLEE.
Filed March 17, 2020. No. A-18-1019.
Appeal from the District Court for Lancaster County: JODI L. NELSON, Judge. Affirmed.
Benjamin W. Shanahan, of Sohl Law Office, for appellant.
John P. Weis, of Wolfe, Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for
appellee.
PIRTLE, RIEDMANN, and WELCH, Judges.
PIRTLE, Judge.
INTRODUCTION
This is an appeal from a bench trial in the district court for Lancaster County over 8 days.
We affirm the decision rendered by the district court finding no error.
BACKGROUND
Pat Thomas Construction, Inc. (PTC), sued Dobson Brothers Construction Company
(Dobson) alleging Dobson modified the original construction contract by changing the procedure
for the submission, review, approval, denial, and payment of “change orders,” rendering the
original “change order” process provisions void. At the conclusion of the trial, the district court
found that PTC had failed to meet its burden of proof that the original contract had been modified
and entered judgment in favor of Dobson. The evidence, consisting of over 1,400 pages of
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testimony, and 274 exhibits, was uncontroverted that nothing in the conduct of the parties
constituted a modification of the subcontractor agreement.
The parties entered into a written contract on May 17, 2010, which was a “subcontract” to
a contract between Dobson, the State of Nebraska Department of Roads, the federal government,
and the City of York, Nebraska (the City). Dobson was the general contractor on the project
pursuant to a written contract between Dobson and the City. The City was the “owner” of the
project. Pursuant to the subcontract between Dobson and PTC, PTC would be responsible for the
installation of the water main and related sewer services in exchange for $380,576. PTC was
ultimately paid a total of $420,093.08.
In its complaint, PTC alleged Dobson modified the subcontract during its term in order to
meet its obligations as general contractor. PTC alleged these changes resulted in PTC’s
performance of additional services and providing additional materials at Dobson’s request, and
when PTC requested payment for these additional services, Dobson failed to make payment in full.
PTC alleged it was still owed $256,730.75 for these additional services and materials.
The subcontract provided:
The contract between Contractor and Owner is hereinafter referred to as the “Prime
Contract.” A copy of the Prime Contract, consisting of the agreement between the Owner
and Contractor and other contract documents including drawings, specifications, general
conditions, special conditions, or work and other documents has been made available to
the Subcontractor and by this reference is made a part of this Subcontract. Subcontractor
acknowledges review of all such documents relevant to Subcontractor’s scope of work and
the Subcontractor agrees to be bound to the Contractor and the Owner by the terms and
provisions thereof.
(Emphasis supplied.) The prime contract identified the City as the Owner and that the City’s
“representative is responsible for interpretation of the plans, specifications, inspections, testing and
acceptance of materials, approval of the work, and final acceptance of the project.” Jeff Sockel, a
licensed civil engineer, was hired as the “project manager and engineer” and served as the
representative of the City under the prime contract. As project manager, Sockel was responsible
for the “final estimate utilized to compensate the Contractor for the performance of the work.” The
prime contract makes clear that the authority for approval of any changes is Sockel’s, and his
alone. Pat Thomas, on behalf of PTC, testified he was aware that the owner of the project, by and
through Sockel, was responsible for approval of all change orders.
The evidence presented by PTC did not go beyond which change orders were unpaid. The
uncontroverted evidence presented by Dobson clearly established the processes for submitting
change orders specified in the prime contract, and made a part of the subcontract, remained
operational and that PTC never availed itself of any of the remedies available when Sockel denied
payment of several of these change orders. After concluding PTC failed to meet its burden of proof
on the allegations of modification in its complaint, the district court entered judgment in favor of
Dobson.
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ASSIGNMENTS OF ERROR
PTC does not specifically assign errors in accordance with Nebraska’s rules of appellate
procedure. However, an appellate court may, at its option, notice plain error. United States Cold
Storage v. City of La Vista, 285 Neb. 579, 831 N.W.2d 23 (2013). We elect to do so in this case.
STANDARD OF REVIEW
The decision to proceed on plain error is at the discretion of the appellate court. Steffy v.
Steffy, 287 Neb. 529, 843 N.W.2d 655 (2014). We choose to review the record for plain error,
which is error plainly evident from the record and of such a nature that to leave it uncorrected
would result in damage to the integrity, reputation, or fairness of the judicial process. Id.
Where credible evidence is in conflict on a material issue of fact, the appellate court
considers, and may give weight to, the fact that the trial court heard and observed the witnesses
and accepted one version of the facts rather than another. Id. In reviewing a judgment awarded in
a bench trial of a law action, an appellate court does not reweigh evidence, but considers the
evidence in the light most favorable to the successful party. Hutchison v. Kula, 27 Neb. Ct. App. 96,
927 N.W.2d 373 (2019) (petition for further review denied May 28, 2019).
ANALYSIS
On appeal, PTC alleges the original contract was an “unconscionable contract of adhesion”
and that Dobson threatened PTC into performing work which resulted in Dobson’s unjust
enrichment to the detriment of PTC. None of these allegations were made at the time of trial, nor
was the complaint ever amended to include them. Accordingly, these claims are not properly
before this court and will not be considered. See, Carlson v. Allianz Versicherungs-AG, 287 Neb.
628, 844 N.W.2d 264 (2014); Dossett v. First State Bank, 261 Neb 959, 627 N.W.2d 131 (2001).
But perhaps most fatal to PTC’s appeal is its failure to include an assignment of errors
section in its brief. Therefore, we have limited our review to whether or not the district court
committed plain error.
Parties who wish to secure appellate review of their claims must abide by the rules of the
Nebraska Supreme Court. In re Guardianship & Conservatorship of Larson, 270 Neb. 837, 708
N.W.2d 262 (2006). Any party who fails to properly identify and present its claim does so at its
own peril. Id.
PTC’s brief to this court does not include a “separate, concise statement of each error a
party contends was made by the trial court.” See Neb. Ct. R. App. P. § 2-109(D)(1)(e). This
appellate procedural rule also requires that the assignment of errors section of the brief be located
after a statement of the case and before a list of controlling propositions of law. Here, errors are
specified only in the argument section. The Supreme Court has previously held that assignments
of error consisting of headings or subparts of the argument section do not comply with the mandate
of § 2-109(D)(1)(e). In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011). In this
situation, an appellate court may proceed as though PTC had failed to file a brief or, alternatively,
may examine the proceedings for plain error. See id.
We have reviewed the exhibits presented to the district court and the uncontroverted
testimony of Sockel, the project manager, and have concluded the district court did not err in
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finding that the contract was not modified. We have considered the uncontroverted testimony of
Pat Thomas, on behalf of PTC, which describes his understanding and acceptance of the fact that
Sockel was solely responsible for deciding whether change orders were approved. We did not find
any documents nor discover any testimony in the transcript of the proceedings which described
any modification of the process for payment approval and actual payment for change orders under
the contract. “Modification” or “modify” appears in the transcript a total of four times, and only
then because the term has been incorporated into a question by one of the lawyers. No witness for
any party ever describes any modification of any process for anything. For example, this excerpt
from cross examination of Pat Thomas illustrates PTC’s understanding of the process for getting
paid for a change order:
Q. And your understanding then was that Dobson, as the general contractor, would
submit that change order request to Jeff Sockel as the construction engineer; correct?
A. Correct.
Q. Okay. And then your understanding was that Jeff Sockel would make a decision
as to whether or not your change order would be approved or denied or modified. But the
decision would be Jeff’s; correct?
A. I -- I -- I’m not positive exactly, again, who Jeff had to talk to and stuff.
Q. I didn’t ask that. I --
A. So I don’t know if Jeff solely would be in charge of saying yes or no.
Q. But your understanding was that the decision would come from him.
A. Yes.
Q. Be relayed back to Dobson Brothers, who then would inform you of what Jeff
Sockel’s decision on the change order was; correct?
A. Yes.
Pat Thomas testified he understood the process for submitting a change order and getting
paid was exactly how it was described in the subcontractor agreement. We find no evidence
supporting PTC’s claim that its subcontract with Dobson was ever modified with regard to the
process for getting paid for change orders, and therefore conclude the district court did not commit
plain error.
CONCLUSION
The order of the district court entering judgment in favor of Dobson is affirmed.
AFFIRMED.
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