Big Hammer, Inc. v. Cross & Sons, Inc.

Decision Date10 May 2022
Docket NumberA-21-614
PartiesBig Hammer, Inc. et al., appellants, v. Cross and Sons, Inc., appellee.
CourtNebraska Court of Appeals

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 Seward County: James C. Stecker Judge. Affirmed.

Christopher M. Johnson for appellants.

Michael T. Gibbons, Christopher D. Jerram, and Raymond E Walden, of Woodke & Gibbons, P.C., L.L.O., for appellee.

Moore Riedmann, and Arterburn, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

ARTERBURN, JUDGE.

INTRODUCTION

Ronald Miller, Christina Miller, and Big Hammer, Inc. (Big Hammer) (collectively the appellants) filed an action against Cross and Sons, Inc. (Cross) in the district court for Seward County alleging that Cross breached an oral contract and negligently repaired a 1996 Kenworth truck owned by Big Hammer. The district court entered an order sustaining Cross' motion for summary judgment from which the appellants have appealed. Upon our review of the record, we conclude that Cross was entitled to judgment as a matter of law. As such, we affirm the district court's grant of summary judgment in favor of Cross.

BACKGROUND

On August 20, 2019, the appellants filed a complaint alleging that Cross breached an oral contract to repair the Kenworth, committed the tort of bad faith by making certain repairs that Cross knew or should have known that it was unable to properly perform, and negligently provided mechanical services to the Kenworth.

On November 15, 2019, the appellants filed an amended complaint. The appellants identified Big Hammer as being a business incorporated in Nebraska owned and operated by Ronald and Christina. The amended complaint alleged that pursuant to an oral contract Cross agreed to perform mechanical services on the Kenworth which would be "of a sufficient quality to repair the Vehicle in ordinary operating condition." The appellants alleged that Cross breached the contract by performing services that were of an insufficient quality to repair the Kenworth. The appellants further asserted that due to Cross' "substandard mechanical work," the appellants suffered total damages amounting to $58, 996.75.

The appellants also made a claim based on negligence. The appellants alleged that Cross failed to provide mechanical services of an ordinary quality found in the diesel mechanic industry. Specifically, the appellants alleged that Cross "misdiagnosed" algae being in a diesel fuel tank, "misaligned the engine," "tightened the 'Jakes' too tight," did not "tighten the engine injectors enough, resulting in the injectors being too loose," and installed a "turbo" which Cross "knew or should have known to be defective, broken, of insufficient quality, or past its useful life." According to the appellants, as a result of these negligent repairs, they suffered damages in the total amount of $58, 996.75.

Cross timely filed an answer to the complaint denying the allegations found in the amended complaint and asserted affirmative defenses, including, as pertinent to the present appeal, that Ronald and Christina were not the real parties in interest because the Kenworth was owned by Big Hammer and not individually owned by Ronald and Christina.

The following facts were asserted in the amended complaint. In August 2017, Ronald was operating the Kenworth when it began to experience mechanical difficulties. Ronald was referred to Cross for mechanical repairs. He reached a verbal agreement with Cross to repair it. On August 23, 2017, Cross notified Ronald that the Kenworth's engine would need to have a "total overhaul." As part of the agreement, Ronald purchased and obtained parts from another auto body shop for Cross to install.

On September 27, 2017, Cross notified Ronald that repairs to the Kenworth were complete. Ronald retrieved the Kenworth and began to drive it back to Buffalo County when it began to overheat. Ronald drove the Kenworth back to Cross who then inspected it. Cross informed Ronald that there was a "faulty sending unit" in the Kenworth. Cross also explained to Ronald that although he could drive it back to his residence without an issue, he would need to replace the "sending unit" immediately thereafter. Immediately after arriving to his residence Ronald had a "sending unit" installed and the temperature gauge in the Kenworth indicated that it was working properly.

On October 2, 2017, Ronald entered into a separate contract to use the Kenworth to pull a trailer. However, the vehicle could not produce enough power to pull the load. Ronald took the Kenworth to Cross who proceeded to inspect it over two days. Upon completing the inspection, Cross informed Ronald that the "fuel was bad and had algae in the fuel tanks" but that Cross did not have the time to clean the tanks. Cross explained that Ronald could drive the Kenworth but Ronald would need to replace the fuel filters. Ronald proceeded to drive the Kenworth and replace the fuel filters but the vehicle was still not operating properly. "Shortly thereafter," Ronald contacted another diesel mechanic to look at the Kenworth and make repairs. While completing the repairs, the "turbo" which was installed by Cross required replacement.

Cross conducted depositions of Ronald and Christina in October 2020. In January 2021, Cross also conducted a deposition of Ross Welton, the service manager for Inland Truck Parts and Service in Grand Island.

Cross served the appellants with a request for admissions on March 1, 2021. Included in the request for admissions was a request for the appellants to admit that they failed to disclose any expert witnesses who would be necessary to support their claims and that they were notified of Cross' request for inspection of the vehicle's engine and parts. Cross also requested the appellants to admit that the parts installed in the vehicle's engine were destroyed prior to inspection and that this destruction resulted in a spoliation of evidence.

On April 8, 2021, Cross filed a motion for summary judgment. On April 30, the appellants filed a motion for enlargement of time praying to extend the deadline for responses to the request for admissions from March 30, 2021 to May 3, 2021.

On May 17, 2021, a hearing was held on the motion to enlarge time to respond to the request for admissions and the motion for summary judgment. The district court received affidavits from Cross and the unanswered request for admissions. The affidavits averred that the request for admissions was served on March 1, 2021. The district court denied the appellants' motion to enlarge time to respond to the request for admissions. The court stated that the appellants had provided no evidence as to why they were not able to provide timely responses to the request for admissions. The record also revealed that the appellants had failed to comply with past deadlines and orders of the court regarding other requested discovery.

With respect to the motion for summary judgment, the district court received copies of the operative pleadings, the affidavits of counsel for Cross, various discovery filings, and portions of the depositions taken of Ronald, Christina, and Welton. Among other topics of testimony, Ronald testified that Cross had been given the opportunity to inspect the parts removed at Inland Truck Parts and Service. Ronald testified that he had told Welton not to dispose of the parts. In his deposition, Welton testified that he received no instructions from Ronald or Christina to preserve the removed truck parts.

On June 25, 2021, the district court entered an order granting Cross' motion for summary judgment. Relying on McGill Restoration, Inc. v. Lion Place Condominium Association, 309 Neb. 202, 959 N.W.2d 251 (2021), the district court determined that expert testimony was necessary to determine the technical sufficiency of the work completed on the Kenworth by Cross. The court reasoned that the alleged substandard work of Cross was not observable by a lay witness. The district court found that the appellants had "no expert witness to provide evidence that the work" Cross performed was in a "substandard manner and that it was the proximate cause of the damage" that the appellants alleged. The district court further found that "the technical nature of the repair work and the number of potential factors affecting its durability were outside the scope of ordinary experience." The district court concluded that a "defendant's negligence is not actionable unless it is the proximate cause of damage to [the] vehicle or is a cause that proximately contributed to the damage."

In addition, the district court determined that Cross put the appellants on notice to preserve the engine parts for inspection and the appellants failed to preserve the parts. Therefore, the court found that the appellants' failure to do so resulted in the spoliation of evidence.

The appellants now appeal to this court.

ASSIGNMENTS OF ERROR

The appellants assign and argue that the district court erred by granting Cross' motion for summary judgment and in finding that the appellants failed to preserve parts for inspection.

STANDARD OF REVIEW

A jurisdictional question that does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court's decision. State ex rel. Malone v. Baldonado-Bellamy, 307 Neb. 549, 950 N.W.2d 81 (2020).

An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be...

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