A-25-0607, K2 Real Estate Development (Appellant /Cross-Appellee) v. Nemaha County, Nebraska (Appellee and Cross-Appellant)
Nemaha County, District Court Judge Julie D. Smith
Attorney for Appellant: Austin L. McKillip, Kimberly A Duggan (Cline, Williams, Wright, Johnson & Oldfather, L.L.P.)
Attorney for Appellee: Louie M. Ligouri (Ligouri Law Office)
Civil Action: Breach of Contract, Substantial Performance, Damages
Action Taken by Trial Court: K2 Real Estate Development (K2) and Nemaha County, Nebraska (Nemaha County), entered into a contract for the repair of a bridge. After K2 had begun work on the bridge, but prior to completing the contract, Nemaha County ordered K2 to stop work. K2 filed a complaint against Nemaha County seeking damages for breach of contract in the amount of $62,256.89, and alternatively, on either quantum meruit or unjust enrichment theories, and sought attorney fees and interest. The district court granted K2 partial summary judgment on the issue of breach of contract but ordered a trial on the issue of damages. Following the bench trial on damages, the district court ruled in favor of Nemaha County. K2 appealed and Nemaha County cross-appealed.
Assignments of Error on Appeal: K2’s assignments of error related to claims that the district court erred in (1) requiring K2 to prove it had substantially performed the contract and prove that Nemaha County retained a benefit in order to recover damages; (2) imposing an additional contract condition of obtaining engineering plans before proceeding which condition was contained in the contract; (3) determining K2 did not meet its burden of proof to show substantial performance prior to the County’s termination of the contract; (4) failing to award K2 its requested damages of $62,256.89; (5) ordering Nemaha County to return material purchased for the bridge repair to K2, which was not requested relief sought by either party; and (6) failing to award K2 attorney fees and interest.
In its cross-appeal, Nemaha County assigns as error the district court erred in determining that: (a) Neb. Rev. Stat. § 39-810(1)(c) (Cum. Supp. 2024), governing contracts for material for repairing, erecting and constructing bridges, did not apply to the parties’ contract and that § 39-810(1)(b), governing contracts for the erection or repair of bridges, applied to the parties’ contract; (b) the $100,000 cap in § 39-810(1)(b) was not triggered by either (i) the contractual provision adding $50,000 to the $85,580 contract if commencement was delayed through no fault of K2 or (ii) despite the full repair costs of all contracts necessary to repair the bridge to a usable standard would exceed $100,000; (c) failing to view the evidence in the light most favorable to the County and failing to give the County the benefit of all reasonable inferences deducible from the evidence; and (d) ruling that paragraphs 18 and 19 of Mainelli’s affidavit were inadmissible.