Dietzel Enters. v. J. A. Wever Constr. , 312 Neb. 426 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/30/2022 01:05 AM CDT
- 426 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426Dietzel Enterprises, Inc., appellant, v.
J. A. Wever Construction, L.L.C., appellee.
___ N.W.2d ___
Filed September 16, 2022. No. S-21-106.
1. Breach of Contract: Damages. A suit for damages arising from a
breach of contract presents an action at law.
2. Judgments: Appeal and Error. In a bench trial of a law action, a trial
court’s factual findings have the effect of a jury verdict and will not be
set aside on appeal unless clearly wrong.
3. ____: ____. After 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 and resolves evidentiary conflicts in
favor of the successful party.
4. Damages: Appeal and Error. The amount of damages to be awarded is
a determination solely for the fact finder, and its action in this respect
will not be disturbed on appeal if it is supported by evidence and bears
a reasonable relationship to the elements of the damages proved.
5. Fraud. In determining whether an individual reasonably relied on a
misrepresentation, courts consider the totality of the circumstances,
including the nature of the transaction; the form and materiality of the
representation; the relationship of the parties; the respective intelli-
gence, experience, age, and mental and physical condition of the parties;
and their respective knowledge and means of knowledge.
6. Negligence: Fraud. In both negligent and fraudulent misrepresentation
cases, whether the plaintiff exercised ordinary prudence is relevant to
whether the plaintiff justifiably relied on the misrepresentation when the
means of discovering the truth was in the plaintiff’s hands.
7. Contracts. In order for the implied covenant of good faith and fair deal-
ing to apply, there must be in existence a legally enforceable contrac-
tual agreement.
8. Contracts: Parties. The implied covenant of good faith and fair deal-
ing exists in every contract and requires that none of the parties do
- 427 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426anything which will injure the right of another party to receive the
benefit of the contract.
9. ____: ____. The nature and extent of an implied covenant of good faith
and fair dealing are measured in a particular contract by the justifiable
expectations of the parties. Where one party acts arbitrarily, capri-
ciously, or unreasonably, that conduct exceeds the justifiable expecta-
tions of the second party.
10. Contracts. The question of a party’s good faith in the performance of a
contract is a question of fact.
11. Breach of Contract: Words and Phrases. A material breach is a failure
to do something that is so fundamental to a contract that the failure to
perform that obligation defeats the essential purpose of the contract or
makes it impossible for the other party to perform under the contract.
12. Breach of Contract. A material breach will excuse the nonbreaching
party from its performance of the contract.
13. ____. Whether or not a breach is material and important is a question
of degree which must be answered by weighing the consequences of the
breach in light of the actual custom of persons in the performance of
contracts similar to the one involved in the specific case.
14. Damages: Evidence. Evidence of damages must be sufficient to enable
the trier of fact to estimate actual damages with a reasonable degree of
certainty and exactness.
15. Damages: Evidence: Proof. Proof of damages to a mathematical cer-
tainty is not required; however, a plaintiff’s burden of offering evidence
sufficient to prove damages cannot be sustained by evidence which is
speculative and conjectural.
16. Breach of Contract: Damages. In a breach of contract case, the ulti-
mate objective of a damages award is to put the injured party in the
same position the injured party would have occupied if the contract had
been performed, that is, to make the injured party whole.
17. Damages: Proof. A claim for lost profits must be supported by some
financial data which permit an estimate of the actual loss to be made
with reasonable certitude and exactness.
Appeal from the District Court for Douglas County: James
M. Masteller, Judge. Affirmed in part, and in part reversed
and remanded with directions.
Patrick T. Vint and Todd W. Weidemann, of Woods &
Aitken, L.L.P., for appellant.
Zachary W. Lutz-Priefert and Frederick D. Stehlik, of Gross,
Welch, Marks & Clare, for appellee.
- 428 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
J. A. Wever Construction, L.L.C. (Wever), contracted with
Dietzel Enterprises, Inc. (Dietzel), to perform excavation work
for the construction of a transmission line. While Wever and
Dietzel do not agree on who is to blame, all agree that the proj-
ect did not go well. Dietzel eventually abandoned the project
before its work was done. Unsurprisingly, litigation followed.
Dietzel filed a lawsuit asserting various claims against Wever,
and Wever asserted a breach of contract counterclaim against
Dietzel. Following a bench trial, the district court found that
Dietzel was the first party to materially breach the contract and
awarded Wever damages. From this judgment, Dietzel appeals,
arguing that the district court erred in its rejection of some of
its claims, in its finding that Dietzel was not entitled to suspend
its performance on the project, and in its damages award. We
find that the evidence in the record did not support the entirety
of the damages award to Wever but that the district court did
not otherwise err. Accordingly, we affirm in part, and in part
reverse and remand with directions.
I. BACKGROUND
The setting for this case is the construction site for a trans-
mission line in Maryland owned by Baltimore Gas & Electric
(BG&E). MasTec North America, Inc. (MasTec), was the proj-
ect’s general contractor. Wever and Dietzel, two Nebraska
companies, worked as subcontractors on the project. MasTec
subcontracted with Wever to lay certain concrete foundations
for the line, and Wever subcontracted with Dietzel to excavate
the holes where the foundations would be laid.
The parties experienced difficulties from the start. Work was
to begin on the project in April 2015, but Dietzel was unable to
arrive at the jobsite at the time directed by MasTec. To avoid a
delay, the parties agreed that Wever would rent equipment and
begin the excavation process until Dietzel could arrive.
- 429 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426After Dietzel arrived, more problems arose. Dietzel had
difficulty performing the excavations, and the project began
to fall behind schedule. Wever’s witnesses at trial generally
blamed Dietzel employees’ allegedly poor excavation strategy
as the cause of the problems and delays. Dietzel’s witnesses
blamed the jobsite conditions, including the presence of alleg-
edly “undrillable” rock. Dietzel contended that before it sub-
mitted its bid, Wever led it to believe that no such rock would
be present.
Dietzel later became concerned that it was not being paid
for the time and materials it was expending on the project. Of
particular concern was whether it would receive payment for
change orders it submitted to Wever for the excavation of hard
rock it contended was not covered by the contract. Under the
contract, however, Wever was not obligated to make payments
to Dietzel unless and until it received payment from MasTec,
and there was evidence that MasTec was slow to pay bills sub-
mitted by Wever.
This all came to a head in the fall of 2015. At that time,
Dietzel requested assurance from Wever that Wever was seek-
ing payment of its change orders from MasTec and that Dietzel
would be paid for those change orders. Approximately 2 weeks
later, Dietzel abandoned the project.
Dietzel later filed this lawsuit alleging claims of breach of
contract, unjust enrichment, negligent misrepresentation, and
breach of the implied covenant of good faith and fair dealing.
Wever filed a breach of contract counterclaim.
Following a bench trial, the district court issued a writ-
ten order. The district court found that Dietzel committed the
first material breach of the contract when it abandoned the
project, and it awarded Wever $2,758,250.47 in damages for
that breach. It found in favor of Wever on Dietzel’s claims of
negligent misrepresentation and breach of the implied cov-
enant of good faith and fair dealing, but found that Wever had
been unjustly enriched in the amount of $328,507, because it
received a payment from MasTec for Dietzel’s work but had
- 430 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426not passed that payment on to Dietzel. After offsetting the
amounts, the district court determined Wever was entitled to
judgment in the amount of $2,429,743.47. Dietzel appealed,
and we moved this case to our docket on our own motion.
Additional relevant background is provided in the analysis
section below.
II. ASSIGNMENTS OF ERROR
Dietzel assigns, renumbered and restated, that the district
court erred (1) by finding that Wever was not liable for neg-
ligent misrepresentation, (2) by finding that Wever was not
liable for a breach of the implied covenant of good faith
and fair dealing, (3) by finding that Dietzel did not have the
right to stop performance of the contract on the grounds that
Wever failed to provide adequate assurances of payment, (4)
by finding that Wever’s failure to make a timely payment was
not a material breach of contract, and (5) in its calculation
of damages.
III. STANDARD OF REVIEW
[1] A suit for damages arising from a breach of contract
presents an action at law. Goes v. Vogler, 304 Neb. 848, 937
N.W.2d 190 (2020).
[2,3] In a bench trial of a law action, a trial court’s factual
findings have the effect of a jury verdict and will not be set
aside on appeal unless clearly wrong. McGill Restoration v.
Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251(2021). After 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 and resolves evi-
dentiary conflicts in favor of the successful party. Id.[4] The amount of damages to be awarded is a determina-
tion solely for the fact finder, and its action in this respect will
not be disturbed on appeal if it is supported by evidence and
bears a reasonable relationship to the elements of the damages
proved. Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294
Neb. 715, 885 N.W.2d 1 (2016).
- 431 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426IV. ANALYSIS
We address each of Dietzel’s assignments of error below.
We take the assignments up in the chronological order of the
underlying facts.
1. Negligent Misrepresentation
(a) Additional Background
Dietzel claims that it came to be involved in the transmis-
sion line project as a result of a misrepresentation by Wever.
The alleged misrepresentation occurred in January 2015. At
that time, Joshua Dezort, acting on behalf of Wever, sent an
email to Brandon Kreiling, the operations manager for Dietzel.
Kreiling had been involved with estimating projects for Dietzel
since 2008 and, at the time, managed Dietzel’s submission of
bids for potential projects. The email sought a bid from Dietzel
for excavation work.
Dezort’s email stated:
Graceton Tline just north of Baltimore. Transmission
line runs from Bel Air to Pylesville. 82 Drilled pier. There
will be an outage so no energized lines overhead. Work
would start end of Feb. Top 4˝ is loose running around
5 to 7 blows. Then increases about 30 blow from 7´ to
20´. 20´ plus runs around 50 blows with some holes a 90
blows down 30´. There is an adder for rock excavation
if required. The rock is Schist, which is sheet like rock
consisting of mud and clay. Let me know if you are good
with $1000 per cubic yard for rock excavation if required.
There is 15 holes that you will hit rock on. On the sched-
ule it shows depth of rock and depth of hole.
Within 30 minutes of this email, Dezort sent Kreiling a
geotechnical report. The geotechnical report provided details
about small test holes drilled in the area of the jobsite.
Thirteen test holes had a notation of “auger refusal,” which
indicated that when the test hole was being drilled, the device
used to drill the test hole hit something that prevented it from
going any deeper. Kreiling testified that “auger refusal” could
- 432 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426have been caused by encountering rocks that were small in
comparison to the excavating equipment, by a rock shelf,
or by full rock. The geotechnical report also indicated that
“[v]ery hard materials were encountered in . . . 19 of the 31
borings at depths ranging from 13.5 to 33.5 feet below the
existing ground surface.”
The geotechnical report also had a section titled “Regional
Geology.” This section stated:
[T]he project area is underlain by residual soils derived
primarily from the in-situ weathering of the underly-
ing bedrock (Wissahickon Formation) and several of its
members in this portion of the county, which include
the Lower Peltic Schist, and Boulder Gneiss, which are
comprised primarily of a fine to medium grained chlorite,
muscovite schist with zones of quartzite, metagraywacke,
and gneiss. A small portion of the transmission align-
ment also appears to be underlain by rocks associated
with the Ultramafic and Gabbroic Rock, comprised of
metagabbros, talcs, serpentinites, actinolite schists.
Dezort testified that metagraywacke is “a type of quartz
schist rock,” that gneiss is “similar to schist, but . . . much
harder and more compressed over time,” and that “muscovite
schist with zones of quartzite” would mean that there would
be a possibility of hitting quartz. Kreiling admitted that the
geotechnical report was the best source of information about
subsurface conditions and that it was available to him when he
formulated Dietzel’s bid.
Dietzel submitted a bid to Wever to perform the excavation
work for $722,000 and estimated that it would be able to com-
plete the work in 100 days. Wever accepted Dietzel’s bid.
When Dietzel began its excavation work, it discovered
granite and quartz. According to Dietzel, this was contrary to
a sentence in Dezort’s initial email stating that the rock would
be “[s]chist, [a] sheet like rock consisting of mud and clay.”
Dietzel’s president, Andrew Dietzel, alleged at trial that the
hard rock Dietzel encountered was “undrillable” and that if he
- 433 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426had known the project was going to require the excavation of
granite and quartz, Dietzel would not have submitted a bid.
Kreiling also testified that, based on Dezort’s representation
that the rock was schist, he bid the job believing that any rock
encountered would “break up well” and be easily excavated.
Based on this information, Dietzel asserted a claim of neg-
ligent misrepresentation. The district court rejected the claim,
finding that Dietzel did not justifiably rely on the representa-
tion in Dezort’s email.
(b) Analysis
Dietzel contends that the district court erred in finding that
it did not justifiably rely on Dezort’s representation and that
it proved all other elements of its negligent misrepresentation
claim. We focus on the issue of justifiable reliance, because we
find it resolves Dietzel’s argument.
[5,6] In order to prevail on a claim of negligent misrepre-
sentation, the plaintiff must prove justifiable reliance on the
alleged misrepresentation. See, e.g., Lucky 7 v. THT Realty,
278 Neb. 997, 775 N.W.2d 671 (2009). In determining whether
an individual reasonably relied on a misrepresentation, courts
consider the totality of the circumstances, including the nature
of the transaction; the form and materiality of the representa-
tion; the relationship of the parties; the respective intelligence,
experience, age, and mental and physical condition of the par-
ties; and their respective knowledge and means of knowledge.
Nathan v. McDermott, 306 Neb. 216, 945 N.W.2d 92 (2020). In
both negligent and fraudulent misrepresentation cases, whether
the plaintiff exercised ordinary prudence is relevant to whether
the plaintiff justifiably relied on the misrepresentation when
the means of discovering the truth was in the plaintiff’s hands.
Id. We have treated the question of whether a plaintiff jus-
tifiably relied on a representation as a question of fact. See
Lucky 7, supra.Dietzel contends that the statement in Dezort’s email regard-
ing schist was a positive statement of fact and that thus, under
- 434 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426our law, Dietzel was justified in relying upon it and had no
obligation to further investigate it. In support of this conten-
tion, Dietzel correctly points out that we have said that a
plaintiff is justified in relying upon a positive statement of fact
if an investigation would be required to discover its truth. See
Nathan, supra. We have stated, however, that this is a “general
rule.” Lucky 7, 278 Neb. at 1003, 775 N.W.2d at 676. Accord
Omaha Nat. Bank v. Manufacturers Life Ins. Co., 213 Neb.
873, 332 N.W.2d 196 (1983). And we have also made clear that
this principle does not permit a plaintiff to focus exclusively on
an alleged misrepresentation and ignore other information in its
possession. See Lucky 7, supra.Here, Kreiling claims to have understood Dezort’s email
to represent that the only rock Dietzel would encounter in its
excavation would be schist, a “sheet like rock consisting of
mud and clay.” Significant evidence, however, suggested that
Dietzel was not justified in relying on such an understanding.
The alleged misrepresentation appears in a terse email intro-
ducing the idea of Dietzel’s submitting a bid on the project. In
that email, Dezort did not specifically state that the only rock
in the area would be schist or otherwise indicate that the area
would not have other rock that was more difficult to drill. In
addition, shortly after sending the introductory email, Dezort
sent the geotechnical report, which contained detailed and
more technical information. Kreiling, who had years of experi-
ence reviewing such information and submitting bids, admitted
that this additional information was the best source of informa-
tion regarding subsurface conditions. This information reported
the “auger refusal” that occurred during testing and the discov-
ery of “[v]ery hard materials” in a number of locations. It also
listed various types of rock found in the area, which Dezort
testified indicated the presence of rock that was “much harder
[than] schist,” as well as quartz. Viewing all this evidence in
the light most favorable to Wever, we cannot conclude that the
district court clearly erred by finding that Dietzel did not estab-
lish justifiable reliance.
- 435 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 4262. Good Faith and Fair Dealing
(a) Additional Background
Dietzel also contends that Wever is liable for failing to
take certain actions shortly after it began work on the proj-
ect. Wever arrived at the project site in early April 2015, but
Dietzel was unable to begin work at that time. To avoid fall-
ing behind schedule, the parties agreed that Wever would rent
equipment and begin to perform a portion of the excavation
work for which Dietzel had submitted a bid.
Wever began excavation work at a location provided by
MasTec, but it soon encountered materials that were too hard
for it to excavate. Wever responded by moving to another
location where Wever did not encounter the same difficulties.
Wever did not, however, inform Dietzel about the hard rock
discovered in its initial excavation work.
When Dietzel arrived at the scene several weeks later, it was
directed to begin excavating in the area where Wever encoun-
tered hard rock. Like Wever, Dietzel encountered hard rock
that was difficult to excavate.
Dietzel alleged that Wever’s failure to disclose that it had
discovered hard rock was a breach of its implied covenant
of good faith and fair dealing. The district court rejected
the claim, reasoning that Wever was not obligated to inform
Dietzel about the hard rock, because the existence of hard
rock was something Dietzel should have contemplated given
the information that was available to it at the time it submitted
its bid.
(b) Analysis
Dietzel contends that the district court erred by finding that
Wever did not breach the implied covenant of good faith and
fair dealing. Relying again on the reference in Dezort’s email
to schist, Dietzel contends that Wever was obligated to inform
Dietzel about the hard rock. When it did not, Dietzel sub-
mits, Wever breached the implied covenant of good faith and
fair dealing.
- 436 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426[7] We note that at the time Wever initially discovered hard
rock in early April 2015, the parties’ subcontract had not been
executed. The subcontract was dated April 24, 2015. Dietzel
apparently takes the position that Wever’s implied duty of
good faith and fair dealing arose prior to the execution of the
subcontract. We have said that in order for the covenant of
good faith and fair dealing to apply, there must be in existence
a legally enforceable contractual agreement. Acklie v. Greater
Omaha Packing Co., 306 Neb. 108, 944 N.W.2d 297 (2020).
At least one court has expressly held that the duty of good
faith and fair dealing is not imposed until an agreement has
been reached and that a plaintiff must rely on other theories of
recovery for alleged deception prior to a contract being formed.
See Husman, Inc. v. Triton Coal Co., 809 P.2d 796 (Wyo.
1991). We nonetheless assume for the purpose of our analysis
that Wever was bound by the covenant of good faith and fair
dealing when it discovered the hard rock.
[8-10] The implied covenant of good faith and fair dealing
exists in every contract and requires that none of the parties do
anything which will injure the right of another party to receive
the benefit of the contract. In re Application of Northeast Neb.
Pub. Power Dist., 300 Neb. 237, 912 N.W.2d 884 (2018). The
nature and extent of an implied covenant of good faith and fair
dealing are measured in a particular contract by the justifiable
expectations of the parties. Id. Where one party acts arbitrarily,
capriciously, or unreasonably, that conduct exceeds the justifi-
able expectations of the second party. Id. The question of a
party’s good faith in the performance of a contract is a question
of fact. Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d
390 (2003).
We find no clear error in the district court’s conclusion that
Wever did not breach the implied covenant of good faith and
fair dealing. For reasons we have already explained, the dis-
trict court did not clearly err by finding that Dietzel could not
justifiably rely on Dezort’s email to believe that only schist
would be encountered in the excavation. The same evidence
- 437 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426that supports that conclusion supports a conclusion that Wever
did not breach the implied covenant of good faith and fair
dealing. If Dietzel could not justifiably rely on Dezort’s email
to believe the work involved only schist, we do not see how it
could justifiably expect to be informed if Wever encountered
rock other than schist, nor do we see how Wever could be said
to have acted arbitrarily, capriciously, or unreasonably by not
disclosing that information.
3. Adequate Assurances
(a) Additional Background
Dietzel’s next two assignments of error pertain to its conten-
tion that when it abandoned the project in October 2015, it was
legally entitled to do so. In order to discuss these assignments
of error, it is necessary to set forth a fairly detailed discussion
of the way in which parties on the project were paid.
The parties entered into what they refer to as a “paid-when-
paid” contract. The phrase “paid-when-paid” refers to the fact
that Wever was contractually required to make payment to
Dietzel only after it received payment from MasTec. The con-
tract provided that Wever was to make payment within 7 days
of receiving payment from MasTec.
Dietzel sent Wever two types of invoices. One type sought
“progress payments” under the contract—the payment Dietzel
was owed for the percentage of work it had completed from its
scope of work. The other sought payment of “change orders”—
a request for payment for additional work Dietzel claimed was
not covered by the contract. Wever was then expected to sub-
mit these requests for payment, with a contractually authorized
markup, to MasTec.
Dietzel submitted an invoice to Wever dated July 1, 2015,
for progress payments for April, May, and June. Wever sent
checks to Dietzel for progress payments in July, August, and
September: It sent Dietzel a check for $41,706 dated July 17,
2015; a check for $68,708 dated August 10, 2015; and a check
for $15,143.06 dated September 30, 2015. Kathryn Hisel, the
- 438 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426chief financial officer of Wever, testified that it often took
MasTec 60 to 90 days after Wever sent a bill to send a payment
to Wever.
Dietzel submitted its first change order for excavating hard
rock on July 19, 2015. The change order sought payment of
$328,507.
The owner of Wever, James Wever, testified that he attended
a meeting in late July 2015 in which the change order was dis-
cussed. James Wever testified that Andrew Dietzel and repre-
sentatives of BG&E and MasTec were also present. According
to James Wever, BG&E and MasTec did not commit to paying
the change order, but did agree to review it and provide them
with an answer “at a later time.”
Dietzel employees made inquiries with Wever regarding the
status of the change order after it was submitted. On August
6, 2015, a Dietzel employee emailed Dayna Wever, Wever’s
president, and asked about the change order. Dayna Wever
responded:
[T]he rock change order is out if [sic] our hands and is on
the table with Mas[T]ec and BG[&]E. Change orders are
not paid until approved by owner. We will pay you when
and if we are paid. . . . As I told Andrew [Dietzel] in our
phone conversation last week, I am emailing and asking
about it everyday [sic] and when we hear something I will
definitely pass it on to you!!
On August 14, 2015, Dietzel submitted a second change
order for excavating hard rock, requesting an additional
$73,943.
Hisel and Dezort testified that Dietzel’s change orders were
submitted to MasTec. Dezort testified that when a change
order was pending, Wever would “keep on asking [about] the
status of that change order during the duration of the project.”
Andrew Dietzel acknowledged during his testimony that no
one at Wever ever disputed his change order requests, indi-
cated that they were rejecting a change order request, or stated
that they would not pursue the change orders.
- 439 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426At some point, BG&E clarified that it would not grant
Dietzel’s change orders related to rock excavation until 288
cubic yards of rock had been excavated. On September 7,
2015, Andrew Dietzel communicated to Wever by email that,
unless its change orders were granted, Dietzel would not
excavate where it had encountered hard rock. In response,
Wever sent a letter explaining it had “pursued a change order
with MasTec and BG[&]E on [Dietzel’s] behalf”; that pursu-
ant to the subcontract, it would pay Dietzel only if it first
received payment; and that MasTec and BG&E had denied the
change order request until 288 cubic yards of rock had been
excavated.
On September 24, 2015, Dietzel sent a letter requesting that
Wever provide assurance within 7 days that it was “pursuing
Dietzel’s claims for outstanding progress payments and change
orders” and that it would “receive payment of these outstanding
amounts.” On September 25, Dayna Wever forwarded Andrew
Dietzel an email from a representative of MasTec. The MasTec
representative had asked in his email, “Which foundations hit
undrillable rock?” Andrew Dietzel responded with information
about the specific foundations.
On October 5, 2015, Dietzel abandoned the project. Andrew
Dietzel sent Dayna Wever a letter explaining Dietzel’s decision
to leave. Among the reasons he cited were Wever’s failure to
provide assurances of payment and failure to provide docu-
mentation that it was “prosecuting Dietzel’s claims.” Based on
these failures and others, Andrew Dietzel wrote, Dietzel con-
sidered Wever in material breach of the contract. The district
court found that Dietzel committed the first material breach of
the contract when it abandoned the project.
(b) Analysis
Dietzel argues that the district court erred by finding
that it committed the first material breach of the contract.
Dietzel contends that when it did not receive adequate assur-
ance that Wever was pursuing its change order requests with
- 440 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426MasTec and that Wever would pay Dietzel for its change
order requests, Dietzel had the right to suspend contractual
performance.
Dietzel cites the Restatement (Second) of Contracts § 251
(1981) to argue that it had the right to request assurance
of Wever’s performance of the subcontract and that because
Wever did not provide such adequate assurance within a rea-
sonable time, Dietzel was permitted to treat the failure as a
repudiation of the subcontract. While this court has not yet
adopted § 251 of the Restatement, see McKinnis Roofing v.
Hicks, 282 Neb. 34, 803 N.W.2d 414 (2011), we need not
decide whether to adopt it here, because, even if we were to
adopt it, Dietzel cannot show that it would apply.
Section 251 states:
(1) Where reasonable grounds arise to believe that
the obligor will commit a breach by non-performance
that would of itself give the obligee a claim for damages
for total breach under § 243, the obligee may demand
adequate assurance of due performance and may, if rea-
sonable, suspend any performance for which he has not
already received the agreed exchange until he receives
such assurance.
(2) The obligee may treat as a repudiation the obligor’s
failure to provide within a reasonable time such assurance
of due performance as is adequate in the circumstances of
the particular case.
Restatement (Second) of Contracts § 251 at 276-77.
Dietzel argues that Wever was obligated to assure it that it
was “prosecuting” Dietzel’s change orders with MasTec and
that it would pay Dietzel for its change orders. But Wever
would have such an obligation under § 251 only if Dietzel had
“reasonable grounds . . . to believe” that Wever would “com-
mit a breach by non-performance.” Viewing the evidence in
the light most favorable to Wever, we cannot say that Dietzel
had reasonable grounds to believe that Wever was or would be
committing a breach.
- 441 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426Significant evidence was introduced at trial showing that
Dietzel did not have reasonable grounds to believe that Wever
was not pursuing payment of the change orders. Wever employ-
ees testified that Dietzel’s change orders were submitted to
MasTec. Andrew Dietzel acknowledged that no one at Wever
suggested otherwise. Beyond that, there was testimony that
Andrew Dietzel was present at a meeting with James Wever
and representatives from BG&E and MasTec in which the first
change order was discussed. Further, Dayna Wever’s email to
a Dietzel employee stated that Dayna Wever was repeatedly
asking MasTec about it and she had told Andrew Dietzel as
much. Finally, the September 9, 2015, letter informed Dietzel
that Wever had “pursued a change order with MasTec and
BG[&]E on your behalf.”
Faced with all this evidence that Wever was submitting its
change orders and pressing MasTec to approve them, Dietzel
focuses on the September 25, 2015, email Dayna Wever for-
warded to Andrew Dietzel, in which a MasTec representa-
tive asked, “[w]hich foundations hit undrillable rock?” Dietzel
argues that this email shows that Wever had not been submit-
ting its change orders because the MasTec representative did
not know that Dietzel had been excavating undrillable rock.
This does not strike us as a likely interpretation, let alone the
only reasonable one. Taken at face value, the question simply
sought clarification on which foundations were at issue.
Based on the evidence that Wever was consistently com-
municating that the change orders were being pursued, as
well as the evidence that Dietzel had actual knowledge that
the July 2015 change order was submitted, Dietzel did not
have reasonable grounds to believe that Wever had or would
breach any obligation with respect to the pursuit of Dietzel’s
change orders.
We also conclude that at the time of its September 24, 2015,
letter requesting assurances, Dietzel did not have reasonable
grounds to believe that Wever would breach the subcontract
by not making payment on its change orders. Here, it was not
- 442 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426enough for Dietzel to show that it had a reason to believe that
it might not receive payment for all the change orders it sub-
mitted. Rather, Dietzel must have had reasonable grounds to
believe that Wever would breach the subcontract by not pay-
ing its change orders. See Restatement (Second) of Contracts
§ 251 at 276 (obligation to provide assurance applies “[w]here
reasonable grounds arise to believe that the obligor will com-
mit a breach by non-performance”). This distinction is relevant
because of the paid-when-paid clause. Because the subcontract
obligated Wever to make payment only if it received pay-
ment from MasTec, Dietzel must show that it had reasonable
grounds to believe that Wever might receive payment from
MasTec on a Dietzel change order and refuse to pass along
payment to Dietzel. The evidence does not support a finding
that Dietzel had reasonable grounds to believe this. At the time
that the request for assurances was made, Wever had timely
made contractually obligated payments to Dietzel, and Dietzel
does not direct us to anything in the record suggesting that it
would not do so in the future.
4. Material Breach
(a) Additional Background
In addition to its adequate assurances theory, Dietzel con-
tends that it was also legally entitled to abandon the project
on October 5, 2015, because Wever had materially breached
the contract. Its claim of material breach rests on Wever’s
receipt of a payment from MasTec on September 22 and fail-
ure to make payment to Dietzel for the portion to which it was
entitled by September 29, as required by the paid-when-paid
clause.
There appears to be no dispute that Wever did, in fact,
receive payment from MasTec on September 22, 2015. On
September 30, Dayna Wever emailed Andrew Dietzel stating
that Wever had received a payment from MasTec and would
be sending Dietzel its contractually required portion promptly.
The district court found that Dietzel received the check for
- 443 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426$15,143.06 on October 6, which was 1 day after it abandoned
the jobsite.
The district court determined that because the payment was
not made by the time required by the subcontract, Wever com-
mitted a breach. The district court concluded, however, that
the breach was not material and that thus, Dietzel’s nonper­
formance of the contract was not excused.
(b) Analysis
[11,12] Dietzel argues that the district court erred when
it found that Wever’s untimely payment was not a material
breach of the subcontract. A material breach is a failure to do
something that is so fundamental to a contract that the failure
to perform that obligation defeats the essential purpose of the
contract or makes it impossible for the other party to perform
under the contract. Siouxland Ethanol v. Sebade Bros., 290
Neb. 230, 859 N.W.2d 586 (2015). A material breach will
excuse the nonbreaching party from its performance of the
contract. Id. Unless there is only one reasonable conclusion
regarding the issue, in which case a court decides the issue as
a matter of law, whether a breach was material is a question of
fact. See id.We understand Dietzel to primarily argue that any delayed
payment to a construction contractor is a material breach as a
matter of law. Dietzel claims that because timely payment to
a contractor is critical to the contractor’s ability to cover its
expenses and continue working, delayed payments are always
material breaches. We are not persuaded.
[13] We have said that whether or not a breach is mate-
rial and important is a question of degree which must be
answered by weighing the consequences of the breach in
light of the actual custom of persons in the performance of
contracts similar to the one involved in the specific case.
Siouxland Ethanol, supra. A test that considers the degree
and consequences of the breach does not lend itself to the
kind of bright-line rule Dietzel asks us to adopt. Furthermore,
- 444 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426this does not appear to be the prevailing rule in construction
law. A construction law treatise relied on by Dietzel states,
“Nonpayment [of a construction contractor] for limited periods
or in insignificant amounts, while annoying, rarely are deemed
to constitute material breaches.” 5 Philip L. Bruner & Patrick
J. O’Connor, Jr., Bruner and O’Connor on Construction Law,
§ 18:26 at 959 (2002). A case Dietzel cites similarly disavows
the “suggest[ion] that every delay in payment will justify a
contractor in terminating performance under an installment
contract.” Zulla Steel, Inc. v. A & M Gregos, Inc., 174 N.J.
Super. 124, 132, 415 A.2d 1183, 1187 (1980).
Dietzel nonetheless maintains that under Nebraska law,
delayed payments to contractors are material breaches. In sup-
port of this argument, Dietzel relies on a fairly recent case,
Goes v. Vogler, 304 Neb. 848, 937 N.W.2d 190 (2020), and
a very old one, Howard County v. Pesha, 103 Neb. 296, 172
N.W. 55 (1919). While Goes affirmed a district court’s find-
ing that a particular nonpayment to a contractor was material,
we did not hold that all such delayed payments are material.
As for Howard County, in that case, this court did find that a
county’s failure to pay a contractor as required by the contract
entitled the contractor to suspend performance. And, to be fair,
the court quoted some language from other jurisdictions that
could be read to suggest that the failure to make payments to
a contractor as required justifies the contractor in abandon-
ing the work. That said, in more than a century since Howard
County was published, we do not appear to have ever cited
the case in a published decision and the idea that any delay
in paying a construction contractor is a material breach as a
matter of law is inconsistent with our material breach juris-
prudence. To the extent Howard County suggests otherwise, it
is disapproved.
Of course, none of this precluded Dietzel from contend-
ing that, under the circumstances of this case, Wever’s delay
in payment amounted to a material breach. The district court
rejected that argument, however, and therefore, we may reverse
- 445 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426its factual determination only if we find that it was clearly
wrong. We do not believe it was. When Dietzel abandoned the
project, the payment was about a week late, but Wever had
communicated to Dietzel 1 day after the payment was due that
it would be forthcoming. That is the only evidence we have
of Wever’s making a late payment under the contract. Further,
Dietzel does not contend that Wever ultimately paid less than
the amount due, and the amount paid was relatively small in
comparison to the overall value of the contract. Neither does
Dietzel direct us to any specific evidence in the record that
without this payment, it would have been unable to continue
its work.
For the reasons provided above, we find the district court
did not err in concluding that Dietzel committed the first mate-
rial breach of the parties’ contract.
5. Damages
(a) Additional Background
Wever relied on testimony from Hisel in an attempt to prove
damages for Dietzel’s alleged breach of contract. Hisel testi-
fied about several expenses Wever incurred in the course of the
transmission line project. For each such expense, she identified
a specific amount for which Wever was claiming damages. She
testified that she arrived at those amounts by taking expenses
Wever incurred and increasing them by 15 percent pursuant
to a contractual term which permitted Wever to add a markup
to expenses incurred by Dietzel. With respect to most of the
expenses she testified to, Hisel testified that they were costs
Wever incurred after Dietzel had left the job. She admitted,
however, that some of the expenses Wever incurred prior to
Dietzel’s departure.
In addition to expenses incurred by Wever, Hisel briefly
testified that as a result of Dietzel’s actions, Wever lost the
ability to complete a segment of the transmission line project
and that, as a result, Wever lost $1,795,317. She testified that
number “was what [the lost segment] was supposed to be, our
- 446 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426gross proceeds.” She did not further explain how the number
was calculated. Hisel also testified that her calculations did not
include an amount for the loss of future work with MasTec,
because there was “no way to give that an actual number.”
The district court received a spreadsheet summarizing Hisel’s
testimony regarding the damages sought by Wever. The spread-
sheet included expenses Wever incurred, as well as a line item
for “Lost Revenue” for the “Lost Segment” of the project in
the amount of $1,795,317. Those items totaled $4,263,479.99.
On cross-examination, the district court received into evi-
dence several invoices corresponding to Wever’s claimed dam-
ages. These exhibits showed some additional expenses ref-
erenced by Hisel were incurred before Dietzel abandoned
the jobsite. Hisel also admitted on cross-examination that
the invoices demonstrated that when she had increased the
expenses to account for the contractual markup, she had erro-
neously increased the expenses by 20 percent rather than 15
percent. Additional details about the evidence related to dam-
ages are incorporated in the analysis below.
The district court found that Wever was entitled to damages
that resulted from Dietzel’s materially breaching the contract
when it abandoned the jobsite. It stated that it found that
Dietzel’s abandonment resulted in damages to Wever, includ-
ing the loss of a portion of the project. It acknowledged that
evidence and testimony at trial revealed calculation errors in
Wever’s claimed damages, but found that Wever proved dam-
ages proximately caused by Dietzel’s breach in the amount of
$2,758,250.47. The district court specifically stated that this
damages amount was for damages caused by Dietzel’s aban-
doning the project.
The district court also noted an argument from Wever that
it suffered damages in the form of lost profits from jobs that
it could have otherwise completed while it was completing
this project and from future work with MasTec. The district
court then stated, “The Court finds that Wever failed to prove
its claims for lost profit related to future MasTec jobs or
- 447 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426other lost profit as proximately caused by Dietzel’s breach
of contract.”
The district court offset its damages award to Wever by
$328,507, an amount it found Wever had been unjustly enriched
by Dietzel. After including the offset, it found that Wever was
entitled to $2,429,743.47. Wever does not challenge the unjust
enrichment damages on appeal.
(b) Analysis
Dietzel argues that even if the district court did not err in
finding it liable for breach of contract, it erred in its calcula-
tion of Wever’s damages. It argues that the evidence does not
support the amount of damages awarded by the district court.
Before addressing Dietzel’s arguments, we briefly review the
governing legal standards.
[14,15] We have said that “damages, like any other element
of the plaintiff’s [cause of action], must be pled and proved and
that the burden is on the plaintiff to offer evidence sufficient
to prove the plaintiff’s alleged damages.” Pan v. IOC Realty
Specialist, 301 Neb. 256, 276, 918 N.W.2d 273, 291 (2018).
Evidence of damages must be sufficient to enable the trier of
fact to estimate actual damages with a reasonable degree of
certainty and exactness. Id. Proof of damages to a mathemati-
cal certainty is not required; however, a plaintiff’s burden of
offering evidence sufficient to prove damages cannot be sus-
tained by evidence which is speculative and conjectural. Id.Although the standard of review on appeal for the amount of
damages is generally deferential to the trier of fact, the ques-
tion of whether the evidence of damages is reasonably certain
is a question of law. See, id. (damages award “will not be dis-
turbed on appeal if it is supported by evidence and bears a rea-
sonable relationship to the elements of the damages proved”);
Pribil v. Koinzan, 266 Neb. 222, 227, 665 N.W.2d 567, 572
(2003) (“[w]e have consistently framed the question whether
the evidence of damages is ‘reasonably certain’ as a question
of law . . .”).
- 448 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426(i) Expenses Incurred Before
Dietzel Abandoned Jobsite
Dietzel argues that a number of the expenses Hisel testified
to cannot support the district court’s damages award because
the evidence shows that they were incurred prior to Dietzel’s
abandonment of the project. Dietzel argues that the following
expenses fall into that category: expenses associated with the
rental and delivery of an auger; the rental, delivery, repair, and
return of a “Watson” drill; the rental of a hammer drill and
compressor; “slurry”; and a lump sum requested for miscella-
neous equipment Wever rented from United Rentals; as well as
various expenses from Greene Construction.
We agree with Dietzel as to the auger delivery, Watson
drill delivery and repair, hammer drill and compressor, and
slurry, because the undisputed evidence showed those were
expenses Wever incurred before Dietzel abandoned the jobsite.
As for the other expenses, invoices received by the district
court show that an identifiable portion of the expenses were
incurred after Dietzel departed. We find that the evidence
would thus support an award of damages for those identifiable
portions. Adjusting for Hisel’s calculation error on the contrac-
tual markup, we find that the evidence would support award-
ing Wever $4,443.60 for the return of the Watson drill, $1,886
for the expenses from Greene Construction, and $5,942.63 for
the auger rental.
This leaves the costs for renting the Watson drill and the
miscellaneous rentals from United Rentals. We find the evi-
dence for these two expenses suffer from the same deficiency:
The finder of fact would have been forced to speculate as to
what amount of the requested damages were incurred after
Dietzel abandoned the jobsite.
On the Watson drill, the record is inadequate to determine
with reasonable certainty what portion of the damages were
related to the drill and Dietzel’s abandonment of the jobsite.
Although the record includes invoices for those months after
Dietzel’s departure, the invoices list a single price for the
- 449 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426Watson drill and a “2012 John Deere 350G-LC Excavator.”
The record is devoid of any references to whether or not this
additional excavator was somehow connected to the Watson
drill, whether it was necessary to perform work Dietzel would
have performed after Dietzel abandoned the jobsite, or what
portion of the invoices could be attributed to the Watson drill.
Without such evidence, the finder of fact would be left to
only speculate about what damages would be appropriate to
award to Wever for the rental of the Watson drill.
As for the rental expenses from United Rentals, the extent
of Hisel’s testimony on those expenses was that they were
incurred “when we started having to rent more support stuff
to perform their scope” and that Wever began to incur the
expenses in August 2015, which was prior to Dietzel’s leaving
the project. Hisel did not identify what equipment was rented,
for how long Wever rented it, or if all of the equipment was
rented for the same period of time. We find no basis in the
evidence by which to estimate what portion of these expenses
were incurred after Dietzel abandoned the jobsite. Thus, we
find that the record does not support awarding Wever damages
for equipment rented from United Rentals.
(ii) “SR-80” Drill
Wever presented evidence that it excavated holes after
Dietzel’s departure using a rented “SR-80” drill (SR-80). Hisel
testified that expenses for the SR-80 after Dietzel left the job-
site amounted to $418,382.62. Dietzel argues that the damages
for the SR-80 are unrelated to Dietzel’s abandonment of the
jobsite. Here, Dietzel presents several points, and we address
them in turn.
Dietzel argues that the SR-80 costs are unrelated to Dietzel’s
abandonment of the jobsite. It contends that MasTec reim-
bursed Wever for some of the expenses associated with the
SR-80 and that the SR-80 was not within Dietzel’s scope of
work. We disagree. Hisel testified that the only damages she
requested for the SR-80 were not reimbursed by MasTec. She
- 450 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426also testified that Wever used the SR-80 to excavate holes
after Dietzel abandoned the jobsite. Dietzel also argues that
invoices received into evidence demonstrate that Wever rented
the SR-80 prior to Dietzel’s departure. There are invoices
indicating as much, but Hisel testified that she had identified
expenses Wever incurred after Dietzel’s abandonment.
Finding no merit to Dietzel’s arguments specific to the
SR-80, we find that the record provided competent evidence
by which to conclude that Wever had been damaged by the
continued use of the SR-80 after Dietzel abandoned the job-
site. However, because Hisel acknowledged that the requested
amount incorrectly added a 20-percent markup rather than one
of 15 percent, we adjust the amount for which the evidence
supported a damages award accordingly. We find that the evi-
dence would support an award of $400,950.01 for expenses
associated with the SR-80.
(iii) Operators and Administrative Expenses
Wever requested $538,162.50 in damages for what it
labeled “Operators Expense” and $234,000 for administrative
expenses. Hisel testified that the first category was determined
by multiplying 7,174.5 hours by a billed rate of $75 per hour.
Hisel testified that this expense was for the additional time “it
took [for Wever employees] to run a drill rig” after Dietzel
abandoned the jobsite. She also said that she was “trying to
recoup[]” money Wever spent on additional hotels, per diems,
rental pickups, and other miscellaneous expenses. She testified
that the administrative expenses were calculated by multiplying
3,120 hours by a billed rate of $75 per hour. Hisel testified that
this expense reflected the additional time Dezort and Dayna
Wever spent at the jobsite and that she and other “coordina-
tors” spent managing the project.
Hisel testified that in using the $75 per hour rate, she “was
just trying to use a medium range cost that could . . . easily be
backed up between the hourly wages and the per diem and the
hotels and meals.” She testified that Wever billed at $110 per
- 451 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426hour for their superintendents’ time and “about $85” per hour
for its laborers’ time.
Dezort testified that Wever originally planned on a crew
of eight people for the project. He also testified that Wever
“ended up sticking probably about 3 of our crews on this job”
and “the job ended up taking about 6 months longer than it
should have.” Earlier, Dezort had testified that “[f]or smaller
jobs, [Wever] ran about five crews, five guys per crew.”
Dietzel argues that awarding Wever damages for operators
and administrative expenses requested by Wever would have
been clear error, because the evidence was speculative and
conjectural. Viewing the evidence in the light most favorable
to the Wever, we disagree.
Hisel’s testimony about the additional work completed by
Wever employees and how she arrived at $75 per hour, if cred-
ited, would provide the finder of fact a reasonably certain basis
to determine that Wever was damaged and the extent of those
damages. Dezort’s testimony about the additional man-hours
required by Wever employees further supported the existence
and scope of the damages. We conclude that the amounts
requested for operators and administrative expenses, in the
amounts of $538,162.50 and $234,000, respectively, were sup-
ported by the evidence. These amounts were not affected by
Hisel’s calculation error for other damages requested, so these
amounts remain unaltered.
(iv) Auger Purchase
Hisel testified that Wever was forced to purchase an auger
after Dietzel abandoned the jobsite and requested damages in
the amount of $33,391.78. Dietzel argues that awarding Wever
damages for this auger would be clear error, because Wever
can still use the auger.
We find there was sufficient evidence to support an award
of damages for this expense. Wever offered evidence that it
was forced to purchase the auger because Dietzel abandoned
the jobsite. Hisel testified that Wever rented equipment unless
- 452 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426it could not do so. Although Hisel acknowledged that Wever
still owns the auger, nothing in the record suggests that Wever
would have purchased the auger at a later date if it had not
been forced to do so by Dietzel’s abandonment of the job-
site. Accounting for Hisel’s calculation error, we find that the
record would support $32,000.46 in damages for the purchase
of the auger.
(v) Remaining Items
Dietzel concedes that Wever presented sufficient evidence
regarding several expenses that were attributable to Dietzel’s
abandonment of the jobsite, including costs associated with
an “IMT” drill, moving drill rigs, and “[d]rilling [m]ud.”
Accounting for Hisel’s calculation error, we find the evidence
supported a damages award for these expenses in the amount
of $217,229.73.
Hisel also testified regarding a number of other expenses to
which Dietzel does not present specific arguments on appeal.
Therefore, we presume that the record contained adequate sup-
port for the district court to award Wever damages for those
items. See Nathan v. McDermott, 306 Neb. 216, 945 N.W.2d
92 (2020) (to be considered by appellate court, alleged error
must be both specifically assigned and specifically argued in
brief of party asserting error). These items include expenses for
equipment from Jeffrey Machine, “Vac Trucks,” “Frac Tanks,”
steel casing, concrete, and “Teeth.” Accounting for Hisel’s cal-
culation error, these expenses amount to $308,289.10.
(vi) Lost Revenue
Hisel briefly testified that Wever lost $1,795,317 in “gross
proceeds” because, as a result of Dietzel’s breach, it was not
permitted to complete its work on a segment of the project.
Wever’s damages spreadsheet also listed this amount as “Lost
Revenue.”
Dietzel argues that the district court specifically found that
Wever was not entitled to any recovery for the lost segment
- 453 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426of the project. It is not so clear to us that is the case. Dietzel
points to the language quoted above in which the district court
stated that Wever “failed to prove its claims for lost profit
related to future MasTec jobs or other lost profit as proxi-
mately caused by Dietzel’s breach of contract.” That language,
however, immediately follows a reference to Wever’s claims
for lost profits from future work with MasTec or other work it
could have completed while finishing this project. Even so, we
agree with Dietzel that the evidence did not support an award
of damages for the segment of the project Wever was not able
to complete.
[16] Hisel asserted in her testimony that if Dietzel’s breach
had not caused Wever to lose a segment of the project,
Wever’s “gross proceeds” or “lost revenue” would have been
$1,795,317. Wever was not entitled to an award of damages for
lost revenue. In a breach of contract case, the ultimate objec-
tive of a damages award is to put the injured party in the same
position the injured party would have occupied if the contract
had been performed, that is, to make the injured party whole.
TNT Cattle Co. v. Fife, 304 Neb. 890, 937 N.W.2d 811 (2020).
An award of lost revenue, however, would have made Wever
more than whole, because it would not account for the addi-
tional expenses Wever would have incurred to complete the
work for which it would have received the lost revenue.
[17] A party can, with adequate evidence, recover lost prof-
its. See, e.g., Aon Consulting v. Midlands Fin. Benefits, 275
Neb. 642, 748 N.W.2d 626 (2008). Here, however, Wever’s
evidence was not adequate. Hisel did not provide any mean-
ingful explanation as to how the $1,795,317 figure for “gross
proceeds” was calculated, let alone what Wever’s expenses
likely would have been to earn those proceeds. A claim for lost
profits must be supported by some financial data which permit
an estimate of the actual loss to be made with reasonable certi-
tude and exactness. World Radio Labs. v. Coopers & Lybrand,
251 Neb. 261, 557 N.W.2d 1 (1996). We note that even Wever
appears to recognize the frailty of its claim for an award of
- 454 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426damages for lost revenue associated with the lost segment of
the project. On redirect, Wever’s counsel asked Hisel what
Wever’s recovery would be if the lost revenue evidence was
completely deficient, and on appeal, Wever does not attempt
to argue that its evidence supported an award for lost revenue
associated with the lost segment of the project.
(vii) Summary
Considering each of the above, we find that viewing the evi-
dence in the light most favorable to Wever, the record would
support awarding Wever damages for the following expenses in
the following dollar amounts:
Item Amount
Operator’s Expense $ 538,162.50
Administrative Expense 234,000.00
SR-80 400,950.01
Watson Drill Return 4,443.60
Greene Construction 1,886.00
90˝ Auger Rental 5,942.63
90˝ Auger Purchase 32,000.46
IMT Drill 185,769.85
Moving Drill Rigs 27,370.00
Drilling Mud 4,089.88
Jeffrey Machine 42,006.96
Vac Trucks 98,673.11
Frac Tanks 17,940.59
Steel Casing 66,936.13
355.89 CY Concrete 80,626.88
Teeth 2,105.43
TOTAL $1,742,904.03
Because the evidence would not support the entirety of
the damages awarded by the district court, we must reverse
that portion of the judgment and remand the cause to the dis-
trict court with directions to enter judgment in the amount of
$1,742,904.03.
- 455 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426V. CONCLUSION
We find that the district court did not err by rejecting
Dietzel’s claims of negligent misrepresentation and breach
of the implied covenant of good faith and fair dealing. We
likewise find no error in the district court’s conclusions that
Dietzel was not entitled to suspend contractual performance
due to Wever’s failure to provide adequate assurances and that
Dietzel committed the first material breach of the contract.
Because, however, we find that the evidence did not sup-
port the entirety of the damages awarded by the district court,
we reverse the district court’s damages award and remand the
cause to the district court with directions to enter judgment
against Dietzel and in favor of Wever on Wever’s breach of
contract claim in the amount of $1,742,904.03 and, taking
into account the offset for Wever’s unjust enrichment liabil-
ity, to order that Dietzel is liable to Wever in the amount of
$1,414,397.03. In all other respects, the judgment of the dis-
trict court is affirmed.
Affirmed in part, and in part reversed
and remanded with directions.