Chicago Lumber Co. of Omaha v. School Dist. No. 71 of Milligan, Fillmore County

• Decision Date: 15 January 1988
• Docket Number: No. 85-888,85-888
• Citation: 417 N.W.2d 757,227 Neb. 355
• Parties: , 44 Ed. Law Rep. 661 The CHICAGO LUMBER COMPANY OF OMAHA, a Nebraska Corporation, Doing Business as Friend Lumber Company, Friend, Nebraska, Appellant, v. SCHOOL DISTRICT NO. 71 OF MILLIGAN, FILLMORE COUNTY, Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 757

417 N.W.2d 757

227 Neb. 355, 44 Ed. Law Rep. 661

The CHICAGO LUMBER COMPANY OF OMAHA, a Nebraska Corporation, Doing Business as Friend Lumber Company, Friend, Nebraska, Appellant, v. SCHOOL DISTRICT NO. 71 OF MILLIGAN, FILLMORE COUNTY, Nebraska, Appellee.

No. 85-888.

Supreme Court of Nebraska.

Jan. 15, 1988.

Syllabus by the Court

1. Political Subdivisions Tort Claims Act: Negligence. Regarding a tort claim for a political subdivision's negligent act or omission, the provisions of the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983), govern a claim and suit concerning alleged governmental negligence and provide an exclusive remedy for tort claims against a political subdivision.

2. Political Subdivisions Tort Claims Act: Limitations of Actions. Subject to the exception pertaining to actions by persons under a legal disability described in Neb.Rev.Stat. § 25-213 (Reissue 1985), the statute of limitations on filing a claim or suit for a political subdivision's tortious conduct is exclusively prescribed by Neb.Rev.Stat. § 23-2416 (Reissue 1983) of the Political Subdivisions Tort Claims Act.

3. Jurisdiction: Words and Phrases. Jurisdiction is the inherent power or authority to decide a case.

4. Courts: Judgments: Appeal and Error. Where the record adequately demonstrates that the decision of a trial court is correct, although such correctness is based on a ground or reason different from that assigned by the trial court, the Supreme Court will affirm. A correct result will not be reversed merely because a trial court reached that correct result for an incorrect reason.

5. Political Subdivisions Tort Claims Act: Notice. As a condition precedent to commencement of a suit brought under the Political Subdivisions Tort Claims Act, one must timely file a proper claim with the appropriate political subdivision.

6. Political Subdivisions Tort Claims Act: Notice. The notice required by Neb.Rev.Stat. § 23-2404 (Reissue 1983) does not have to state the indicated information, circumstances, or facts with the fullness or precision required in a pleading.

7. Political Subdivisions Tort Claims Act: Notice. The purpose of Neb.Rev.Stat. § 23-2404 (Reissue 1983) is not to require a statement of fact to the extent that the governmental subdivision's absolute liability is verbally demonstrated in the documentary or written claim. Rather, the written claim required by § 23-2404 notifies a political subdivision concerning possible liability for its relatively recent act or omission, provides an opportunity for the political subdivision to investigate and obtain information about its allegedly tortious conduct, and enables the political subdivision to decide whether to pay the claimant's demand or defend the litigation predicated on the claim made.

8. Political Subdivisions Tort Claims Act: Notice. The notice requirements 9. Political Subdivisions Tort Claims Act: Notice. Substantial compliance with the statutory provisions pertaining to a claim's content supplies the requisite and sufficient notice to a political subdivision in accordance with Neb.Rev.Stat. § 23-2404 (Reissue 1983), when the lack of compliance has caused no prejudice to the political subdivision.

for a claim filed pursuant to the Political Subdivisions Tort Claims Act are liberally construed so that one with a meritorious claim may not be denied relief as the result of some technical noncompliance with the formal prescriptions of the act.

Robert H. Berkshire, Richard N. Berkshire and Robert E. Zielinski, Omaha, for appellant.

Kelley Baker and Jerry L. Pigsley of Nelson & Harding, Lincoln, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

The Chicago Lumber Company of Omaha (Chicago) appeals the judgment for school district No. 71 of Milligan, Fillmore County, Nebraska (district), in a negligence action brought under the Political Subdivisions Tort Claims Act, Neb.Rev.Stat. §§ 23-2401 et seq. (Reissue 1983). We reverse and remand for further proceedings.

During the summer of 1982, the district got in touch with Melvin Stejskal, a contractor in Milligan, concerning renovation of certain windows at the district's Milligan school. Stejskal, a carpenter for about 15 years, had an open account at Chicago's local lumberyard and contacted Harold Brown, Chicago's manager, regarding the cost of material for the district's proposed window project. Based on the information from Chicago, Stejskal submitted his project bid to the district, which accepted Stejskal's bid in late July or early August 1982.

The Nebraska Construction Lien Act, Neb.Rev.Stat. §§ 52-125 et seq. (Reissue 1984), does not apply to real estate owned by a governmental agency or political subdivision, and, hence, did not apply to the district's real estate which was the subject of the renovation project. However, regarding a contract for repairing a school district's building, structure, or improvement, Neb.Rev.Stat. § 52-118 (Reissue 1984) in part provides that the school district shall

take from the person, persons, firm, or corporation to whom the contract is awarded a bond, in a sum not less than the contract price, with a corporate surety company, conditioned for the payment of all laborers and mechanics for labor that shall be performed and for the payment for material and equipment rental which is actually used or rented in the erecting, furnishing, or repairing of the public structure or improvement or in performing the contract.

The district did not require that Stejskal file the bond specified in § 52-118. Without inquiry whether a contractor's bond had been filed concerning the window renovation project, Chicago supplied Stejskal with material used in the district's project.

On August 2, 1982, the district's board authorized payment of the contract price, $4,280, to Stejskal for the renovation project, although some minor work remained undone. The board directed Marshall Tonnies, school superintendent, to inspect the project and pay Stejskal when the work was completed. After an inspection on August 20 and notwithstanding incompletion of the work, Tonnies gave Stejskal the district's check for $4,280, with Stejskal as the only named payee. According to Chicago's invoices or "tickets," the last material was delivered to Stejskal on September 7 and Stejskal completed the window project on that date or shortly thereafter. The total cost of Chicago's material delivered to Stejskal for the project was $4,005.17.

Chicago contacted Superintendent Tonnies on September 30, inquired whether Stejskal had been paid for the renovation project, and was told that the district had paid Stejskal. Subsequently, Brown visited with Superintendent Tonnies and members of the district's board in attempts to "figure a way to get [Stejskal] to pay," but Chicago received no payment on the district's renovation project.

On March 23, 1983, Superintendent Tonnies received a letter from Chicago's attorney, which was addressed to "School District # 71 of Milligan, Fillmore County, Nebraska." The attorney's letter referred to the "building materials and supplies which were provided to Stejskal Building Services in connection with the recent renovation and improvement of your school." The letter then continued:

As you may be aware, Nebraska Revised Statutes Section 52-118 provides that all school boards within the State of Nebraska must require any contractors who perform construction work relating to the erection, furnishing or repair of any public building or other structure to take out a corporate surety bond in a sum not less than the contract price, which shall be conditioned upon the full payment of all laborers, mechanics and materialmen who become connected with the project.

The Section further provides that the bond shall be filed with and approved by the school board and that no contract may be entered into until the bond has been so filed and approved.

As I am sure you are aware, there was no bond in the present case, which means that my client has suffered damage as a result of the school board's failure to follow the statutes properly. We have been directed to institute a lawsuit against the school as a result of the failure to collect the full amount owing and will do so unless we hear from you within ten (10) days from the date of this letter.

The attorney's letter of March 23 did not specify the exact date or dates on which Chicago's material was delivered to Stejskal, although Superintendent Tonnies realized that the material indicated in the attorney's letter related to the window project, which, as far as the record discloses, was the only renovation, construction, or repair undertaken for the school in August and September of 1982. Superintendent Tonnies' capacity with the district was characterized as "the chief executive officer of the district," responsible for "financing of the school district," the "management of the personnel and the property of the school district," and "maintaining the office records of the school district," including minutes of meetings held by the district's board. The district's attorney received a letter from Chicago's attorney on August 26, 1983, and sent that correspondence to Superintendent Tonnies, who received the forwarded correspondence on August 29. This second letter specifically stated that the demand against the district was made under the Political Subdivisions Tort Claims Act.

PLEADINGS

When the district did not pay in response to Chicago's demand, Chicago filed suit on April 5, 1984. In an amended petition pursuant to the Political Subdivisions Tort Claims Act, Chicago alleged delivery of the materials to Stejskal for the construction at the district's school, the district's payment to Stejskal and Stejskal's failure to pay Chicago, the district's negligent failure to require and obtain a bond...