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
Facts: In 2019, Nemaha County closed down a bridge because it was no longer safe for travel. In February 2022, K2 met with representatives from Nemaha County to discuss repairing the bridge. After K2 presented a proposal, the Nemaha County Board voted to sign an agreement with K2 for bridge repair work totaling $85,580 of which $43,500 was listed as being for materials including substructure steel. The contract was signed on March 2.
K2 alleges that, after receiving the signed contract, it moved equipment to the bridge repair site, expended 240 labor hours mobilizing the project site, and ordered $9,000 in materials for the bridge repair. On March 15, 2023, Nemaha County directed K2 to stop work on the project and to submit a request for payment to Nemaha County for the work performed. According to Nemaha County, the work specified in the contract alone would not have resulted in a functional bridge and stabilizing the creek banks to properly protect the structure as part of an overall bridge repair plan would potentially add costs in excess of $100,000 to the project. K2 demobilized and on March 24, submitted a request to Nemaha County for $62,256.89, which remains unpaid.
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. K2 also 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 and Cross-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.