Becher v. Hunt Irrigation, Inc.

• Decision Date: 18 June 2019
• Docket Number: No. A-18-447.,A-18-447.
• Parties: MARK BECHER, APPELLANT, v. HUNT IRRIGATION, INC., A NEBRASKA CORPORATION, APPELLEE.
• Court: Nebraska Court of Appeals

MARK BECHER, APPELLANT, v. HUNT IRRIGATION, INC., A NEBRASKA CORPORATION, APPELLEE.

No. A-18-447.

NEBRASKA COURT OF APPEALS

June 18, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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).

Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge. Affirmed.

Bradley A. Sipp for appellant.

Elizabeth J. Chrisp and, on brief, Ryan C. Carson, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee.

MOORE, Chief Judge, and RIEDMANN and BISHOP, Judges.

BISHOP, Judge.

INTRODUCTION

Mark Becher appeals from the order of the Lancaster County District Court which granted summary judgment in favor of Hunt Irrigation, Inc. Becher claims the district court erred in granting summary judgment because there were material issues of fact regarding whether or not Hunt Irrigation promised to winterize his lawn sprinkler system. We affirm.

BACKGROUND

In July 2017, Becher filed a complaint against Hunt Irrigation claiming breach of contract and negligence. Becher alleged that he and Hunt Irrigation entered into an agreement in which the company "agreed to provide certain services in relation to the maintenance and care of [his] sprinkler system" at Becher's residence located on Surfside Drive in Lincoln, Nebraska. Becher claimed that in December 2013, his "sprinkler system froze causing [damages] in excess of $200,000" to his home. Becher claimed the cause of damages to his residence was due to Hunt Irrigation's breach of contract and negligence.

Hunt Irrigation denied the material allegations of Becher's complaint and asserted several affirmative defenses, including that Becher's claims for damages were barred due to lack of consideration for any contract alleged. Hunt Irrigation filed a motion for summary judgment, contending that the "undisputed evidence in this matter shows that there was no duty, either contractual or otherwise, owed to [Becher] to winterize his property in the Fall of 2013 as [he] alleged" and that "[b]ecause there was no duty," there could be no breach of contract or negligence.

At a hearing on Hunt Irrigation's summary judgment motion in March 2018, Hunt Irrigation offered the affidavit of its owner, Jeremy Hunt (Jeremy), and a copy of Becher's complaint. In Jeremy's affidavit, he stated that, with respect to Becher's Surfside Drive home prior to his pipes allegedly freezing: (1) Hunt Irrigation never agreed to winterize Becher's sprinkler system, (2) there was "never any written or oral agreement" between the parties to provide winterization services, and (3) Becher did not schedule or request his company to provide such services. Jeremy claimed that at no time did Becher "ever pay for winterization services in 2013 at his [Surfside Drive] home." Hunt Irrigation also offered its attorney's affidavit, which had attached to it the written discovery previously issued to Becher.

In opposing the summary judgment motion, Becher offered his own affidavit and his answers to Hunt Irrigation's request for admissions. In Becher's affidavit, he claimed that during 2012, 2013, and 2014, he contracted with Hunt Irrigation for "sprinkler needs on several properties" he owns. The company had "always" taken care of the sprinklers on his properties and winterized them. Becher purchased his Surfside Drive home on January 13, 2013. He "specifically had conversations about the sprinkler system at [the] Surfside Drive [home] with Jeremy Hunt in the Summer of 2013" and believed "Hunt Irrigation did work on the sprinkler system" that summer. He "spoke with Hunt Irrigation in the Fall of 2013 to make certain that the home . . . was winterized" and "[t]hey promised it would be taken care of." In December, his sprinkler pipe at his home froze "because it was not winterized." Hunt Irrigation "never winterized" his home "as promised."

Among Hunt Irrigation's request for admissions, it asked Becher to admit that (1) he did not schedule winterization services for his Surfside Drive home for the fall of 2013 and (2) there was no oral contract or agreement for Hunt Irrigation to winterize the sprinkler system at that home for that same time. Becher denied each of those requests. But he admitted that there was no written contract or agreement for the company to winterize his home's sprinkler system for that time nor did he ever receive written confirmation from the company that it would winterize his property during that time.

The district court issued an order on April 6, 2018, sustaining Hunt Irrigation's motion for summary judgment. In addressing Becher's contract claim, it noted that to create a contract, there must be a meeting of the minds or a binding mutual understanding; this required that the terms and requirements of an agreement be definite and certain. It pointed out that the essential elements of a binding contract apply to both oral and written agreements, and the language which forms the basis of an alleged contract must be accepted and consideration furnished. Further, establishing a price or a method of arriving at a price is an essential element of a contract. The district court foundthat there was "no allegation whatsoever that there was a meeting of the minds as to the price of the services sought." And although the parties allegedly did business with each other in the past relative to Becher's other real estate, there was "no evidence as to the pricing history, that it would have applied here, or even been relevant." The district court said it could not speculate about that issue. It found that "[s]ince price, or some evidence reflecting a meeting of the minds as to price" was a "necessary element," Becher did not meet his burden as to that element. It appeared to the district court that Becher's call, "assuming it was made, was a mere request for service." "While consumers and businesses use such methods constantly, those methods do not form the basis of an enforceable contract." And although not raised by Becher, the court, citing to promissory estoppel cases, rejected the possibility that when a contract is not formed because of a lack of consideration, reasonable reliance on the promise could still render the promisor liable for breach of the promise. The court concluded that Hunt Irrigation's motion for summary judgment should be sustained and Becher's contract claim should be dismissed.

The district court then analyzed Becher's negligence claim, stating that the Nebraska Supreme Court recently discussed the coexistence of tort and contract actions. It referred to Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012), saying that in that case, "the trial court granted summary judgment finding that the plaintiffs could only proceed under contractual theories of relief. On appeal, the Supreme Court held that 'a tort action is prohibited if the only damages suffered are economic losses.'" Still referencing Lesiak v. Central Valley Ag Co-op, the district court noted that when an alleged breach is of a purely contractual duty--a duty which arises only because the parties entered into a contract--only contractual remedies are available. The district court concluded Becher's negligence claim could not support the relief requested and could be disposed of as part of Hunt Irrigation's motion.

The district court granted Hunt Irrigation's motion for summary judgment and dismissed the case. Becher appeals.

ASSIGNMENT OF ERROR

Becher claims, consolidated and restated, that the district court erred in granting Hunt Irrigation's motion for summary judgment.

STANDARD OF REVIEW

Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Colwell v. Mullen, 301 Neb. 408, 918 N.W.2d 858 (2018). In reviewing a summary judgment, an appellate court views the evidence in the 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. Id.

ANALYSIS

At the outset, we note that Becher's complaint alleged breach of contract and negligence claims against Hunt Irrigation; however, on appeal, Becher does not assign error to or dispute thedistrict court's conclusion granting summary judgment in favor of Hunt Irrigation with regard to his negligence claim. Accordingly, finding no plain error, we will not address the negligence claim further. See Werner v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012) (absent plain error, assigned error not specifically assigned and specifically argued in brief is waived).

We now address Becher's breach of contract claim. Becher asserts that the facts show there is a genuine issue of material fact of "whether or not Hunt Irrigation promised to winterize [his] sprinkler system," brief for appellant at 7, specifically, "whether or not the parties agreed on the cost of services to be performed," id. at 9. He complains that the district court "assumed that the parties had not agreed on the price of Hunt Irrigation's services." Id. at 8. He contends the district court "provides an in depth recitation of the fact that no evidence was adduced regarding the price of Hunt Irrigation's services, but in doing so decides an issue of fact instead of giving all reasonable inferences to [Becher]." Id. at 9.

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 it is entitled to judgment as a matter of law. Wynne v. Menard, Inc., 299 Neb. 710, 910 N.W.2d 96 (2018). If the movant meets this burden, then the nonmovant must show the existence of a material issue of fact that prevents judgment as a matter of law. Id. When the...