Baldwin Carpet Linoleum & Carpet, Inc. v. Builders, Inc.

• Decision Date: 04 October 1994
• Docket Number: No. A-93-085,A-93-085
• Citation: 523 N.W.2d 33,3 Neb.App. 40
• Court: Nebraska Court of Appeals
• Parties: , 95 Ed. Law Rep. 363 BALDWIN CARPET LINOLEUM & CARPET, INC., Appellee, v. BUILDERS, INC., and St. Paul Fire & Marine Insurance Co., Defendants and Third-Party Plaintiffs, Appellants, and Board of Regents of the University of Nebraska, Third-Party Defendant, Appellee.

Page 33

523 N.W.2d 33

3 Neb.App. 40, 95 Ed. Law Rep. 363

BALDWIN CARPET LINOLEUM & CARPET, INC., Appellee, v. BUILDERS, INC., and St. Paul Fire & Marine Insurance Co., Defendants and Third-Party Plaintiffs, Appellants, and Board of Regents of the University of Nebraska, Third-Party Defendant, Appellee.

No. A-93-085.

Court of Appeals of Nebraska.

Oct. 4, 1994.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Proof. A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted.

4. Summary Judgment: Proof. After the moving party has shown facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party.

5. Actions: States: Statutes: Contracts. The State Contract Claims Act authorizes suits against the State, in derogation of the State's sovereignty, and courts must strictly construe its provisions in favor of the sovereign.

6. Limitations of Actions. A claim accrues when an injury occurs and the injured party has the right to seek redress by instituting and maintaining a lawsuit.

7. Limitations of Actions: Breach of Contract. A cause of action for breach of contract accrues as soon as the breach occurs.

8. Limitations of Actions: Appeal and Error. An appellate court must determine from the facts of each case the point at which a statute of limitations begins to run.

9. Limitations of Actions. The existence of continuing negotiations without deceit or other unfulfilled promises does not ordinarily toll a statute of limitations.

Larry V. Albers, of Erickson & Sederstrom, P.C., Lincoln, for appellants.

Andrew D. Strotman, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee Bd. of Regents.

IRWIN, MILLER-LERMAN and MUES, JJ.

MILLER-LERMAN, Judge.

Builders, Inc., and St. Paul Fire & Marine Insurance Co. (collectively referred to as Builders) appeal the decision of the district court for Lancaster County which found that Builders' third-party petition against the Board of Regents of the University of Nebraska (University) was time barred, and granted summary judgment in favor of the University. For the reasons recited below, we affirm.

SCOPE OF REVIEW

In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Anderson v. Nashua Corp., 246 Neb. 420, 519 N.W.2d 275 (1994); Hillie v. Mutual of Omaha Ins. Co., 245 Neb. 219, 512 N.W.2d 358 (1994); Dowis v. Continental Elev. Co., 241 Neb. 207, 486 N.W.2d 916 (1992); Spittler v. Nicola, 239 Neb. 972, 479 N.W.2d 803 (1992). Moreover, summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Anderson v. Nashua Corp., supra; Hillie v. Mutual of Omaha Ins. Co., supra; Rowe v. Allely, 244 Neb. 484, 507 N.W.2d 293 (1993); Hanson v. General Motors Corp., 241 Neb 81, 486 N.W.2d 223 (1992); Antelope Cty. Farmers Coop. v. Citizens State Bank, 240 Neb. 760, 484 N.W.2d 822 (1992); Barelmann v. Fox, 239 Neb. 771, 478 N.W.2d 548 (1992); Flamme v. Wolf Ins. Agency, 239 Neb. 465, 476 N.W.2d 802 (1991); Flynn v. Bausch, 238 Neb. 61, 469 N.W.2d 125 (1991).

A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted. After the moving party has shown facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party. Spittler v. Nicola, supra; Flamme v. Wolf Ins. Agency, supra.

FACTS

This litigation arises from the construction project to build the Lied Center for Performing Arts (Lied Center) on the campus of the University of Nebraska at Lincoln. Builders, defendant and third-party plaintiff in this action, entered into a contract with the University to act as the general contractor for the construction of the Lied Center. Builders subcontracted with plaintiff, Baldwin Carpet Linoleum & Carpet, Inc. (Baldwin), to purchase and install the carpet in the Lied Center.

In March 1987, Builders informed the University that Baldwin anticipated the price of the carpet would, in the near future, rise above the price specified in the contract and that the University needed to select the colors for the carpet by April 3 to avoid incurring such a price increase. The University responded that any delay in selecting the carpet colors was due to the fact that the brick suppliers had not yet provided color samples to the University for comparison. The University also indicated that it expected Builders and Baldwin to supply the carpet at no additional cost. The University notified Builders of its initial carpet color selections in a letter dated April 21, 1987, after Builders extended the color selection deadline to April 22.

The University made its final selections in regard to carpet color, style, and pattern in June 1988, whereupon Baldwin learned that the initial supplier had gone out of business and that the selected carpet would cost $19,680 over and above the original bid price. Consequently, in mid-July 1988, Builders submitted two claims to the University for additional costs. By letter dated August 3, 1988, the University denied Builders' claims for additional moneys, asserting that Builders and Baldwin remained responsible for any increase in the price of the carpet. Notwithstanding the denial of the claims, the University indicated it was willing to negotiate regarding alternative solutions through August 8.

On September 30, 1988, pursuant to a series of negotiations, the University agreed to pay the additional installation costs that would be incurred because the carpet from the new supplier required a double-glue carpet pad. However, the University refused to pay for any increase in the price of the carpet. The record shows that the University paid $112,500, the full original contract price for the cost of the carpet, when it arrived at a bonded warehouse in Lincoln.

On November 15, 1989, the project architect issued a certificate of substantial completion for the Lied Center. The parties agree that Baldwin completed the installation of the carpet prior to the issuance of the certificate of substantial completion on November 15.

After substantial completion, Builders requested that the University pay Baldwin an additional $27,543 due to the increase in the cost of the carpet. The University offered Baldwin $10,824 in settlement of this claim. Baldwin rejected this settlement offer and countered with an offer of $19,000. On or about September 26, 1990, in connection with Baldwin's counteroffer, the University requested additional information and documentation to substantiate the additional charges. On October 5, the University denied Baldwin's modified claim for $19,000, in a letter styled "Final Response."

Baldwin filed the present action in Lancaster County District Court against Builders on November 21, 1991. On November 25, Builders submitted its claim in connection with the carpet dispute to the Office of Risk Management, pursuant to the State Contract Claims Act, Neb.Rev.Stat. § 81-8,302 et seq. (Cum.Supp.1992). On December 11, 1991, Builders objected to the submission of the claim to the State Claims Board and expressed its desire to pursue action in district court. Builders filed a third-party petition against the University in the district court for Lancaster County on June 12, 1992.

On November 4, 1992, the University moved for summary judgment against Builders. The district court for Lancaster County sustained the University's motion for summary judgment on December 21. The trial court found that Builders had failed to file its claim with the Office of Risk Management within the 2-year statute of limitations set forth in the State Contract Claims Act at § 81-8,306. Builders appeals.

ANALYSIS

Prior to full briefing of this case, the University moved to dismiss this appeal for lack of a final, appealable order as required by Neb.Rev.Stat. § 25-1911 (Cum.Supp.1992). The University argued that the pendency of the main action between Baldwin and Builders precluded appellate review. This court denied the motion. Under Nebraska practice, the granting of a motion for summary judgment in favor of a third-party defendant has been treated as an appealable order. See, Zwingman v. Kallhoff, 244 Neb. 514, 507 N.W.2d 894 (1993); Gables CVF v. Bahr, Vermeer & Haecker Architect, 244 Neb. 346, 506 N.W.2d 706 (1993).

On appeal, Builders asserts that the district...