Echo Grp. v. Tradesmen Int'l
| Decision Date | 28 October 2022 |
| Docket Number | S-21-729,S-21-730,S-21-770,s. S-21-729,S-21-770. |
| Citation | 312 Neb. 729 |
| Court | Nebraska Supreme Court |
| Parties | Echo Group, Inc., Appellee and Cross-Appellant, v. Tradesmen International, an Ohio Corporation, Appellee, and Lund-Ross Constructors, Inc., a Nebraska Corporation, Intervenor-Appellant and Cross-Appellee. Echo Group, Inc., Appellee and Cross-Appellant, v. The Historic Florentine, LLC, a Nebraska limited Liability Company, and Mldwest Protective Services, Inc., Appellees, and Lund-Ross Constructors, Inc., a Nebraska Corporation, Intervenor-Appellant and Aross-appellee. Echo Group, Inc., Appellee and Cross-Appellant, v. The Duke of Omaha, LLC, a Georgia Limited Liability Company, Great Western Bank and Midwest Protection Services, Inc., Appellees, and Lund-Ross Constructors, Inc., a Nebraska Corporation, Intervenor-Appellant and Cross-Appellee. |
1. Summary Judgment: Appeal and Error. An appellate court affirms 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 drawn from the facts and that the moving party is entitled to judgment as a matter of law.
2. __:__. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law which an appellate court reviews independently of the lower court.
4. Liens: Foreclosure: Equity. An action to foreclose a construction lien is one grounded in equity.
5. Equity. The maxim "equity follows the law" in its broad sense means that equity follows the law to the extent of obeying it and conforming to its general rules and policies whether contained in common law or statute. This maxim is strictly applicable whenever the rights of the parties are clearly defined and established by law.
6.__. Equitable remedies are generally not available where there exists an adequate remedy at law.
7. Summary Judgment: Proof. The party moving for summary judgment must make a prima facie case by producing enough evidence to show that the movant is entitled to judgment if the evidence were uncontro-verted at trial. If the party moving for summary judgment makes a prima facie case, the burden shifts to the nonmovant to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law.
8. Summary Judgment. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment.
9. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain direct, and unambiguous.
10. Principal and Surety: Bonds: Liens. The function of the surety bond under Neb. Rev. Stat. § 52-142 (Reissue 2021) is to release the property from the lien and to transfer the claimant's rights from the property to the surety bond.
11. Stipulations: Parties. The general rule is that parties are bound by stipulations voluntarily made.
12. Principal and Surety: Liability. In the absence of a condition extending his or her liability, a surety cannot be held liable for more than the penal sum named.
13. Prejudgment Interest: Appeal and Error. Awards of prejudgment interest are reviewed de novo.
14. Prejudgment Interest. Neb. Rev. Stat §§ 45-103.02 and 45-104 (Reissue 2021) provide alternate and independent means of recovering prejudgment interest.
15.__ Neb. Rev. Stat. § 45-103.02(2) (Reissue 2021) authorizes the recovery of prejudgment interest on liquidated claims.
16.__ . When a claim is of the types enumerated in Neb. Rev. Stat. § 45-104 (Reissue 2021), then prejudgment interest may be recovered without regard to whether the claim is liquidated.
17. Appeal and Error. The district court cannot commit error in resolving an issue never presented and submitted to it for disposition.
18. Prejudgment Interest. Neb. Rev. Stat. § 45-104 (Reissue 2021) applies to four types of judgments: (1) money due on any instrument in writing; (2) settlement of the account from the day the balance shall be agreed upon; (3) money received to the use of another and retained without the owner's consent, express or implied, from the receipt thereof; and (4) money loaned or due and withheld by unreasonable delay of payment.
19. Prejudgment Interest: Liens: Foreclosure. An award of prejudgment interest in an action to foreclose a construction lien is authorized under Neb. Rev. Stat. § 45-104 (Reissue 2021).
20. Statutes: Words and Phrases. As a general rule, the word "shall" in a statute is considered mandatory and is inconsistent with the idea of discretion.
21. Attorney Fees: Appeal and Error. On appeal a trial court's decision awarding or denying attorney fees will be upheld absent an abuse of discretion.
22. Attorney Fees. Attorney fees and expenses may be recovered in a civil action only where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.
23. Statutes: Legislature: Intent. When construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.
24. Statutes: Intent. In construing a statute, the court must look at the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose.
25. Appeal and Error. Absent plain error, an appellate court considers only an appellant's claimed errors that the appellant specifically assigns in a separate "assignment of error" section of the brief and correspondingly argues in the argument section.
26.__ . Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
Appeals from the District Court for Douglas County: J. Michael Coffey, Leigh Ann Retelsdorf, and Duane C. Dougherty, Judges. Judgment in No. S-21-729 affirmed and in part reversed, and cause remanded with direction. Judgment in No. S-21-730 affirmed in part and in part reversed, and cause remanded with direction. Judgment in No. S-21-770 affirmed in part, and in part reversed.
David S. Houghton and Justin D. Eichmann, of Houghton, Bradford & Whitted, PC, L.L.O., for appellant.
Cathy S. Trent-Vilim and Craig F. Martin, of Lamson, Dugan & Murray, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
These three cases consolidated for appeal involve foreclosures of construction liens under the Nebraska Construction Lien Act (Act).[1] The appeals present three primary issues: whether equitable considerations make summary judgment improper, whether prejudgment interest is authorized, and whether attorney fees are recoverable.
Because there was no dispute that the supplier complied with the provisions of the Act and equity follows the law, we affirm the entry of summary judgment in each case.
We conclude that the claims were liquidated, and thus, an award of prejudgment interest was authorized. Because the court in two cases erred by not awarding prejudgment interest, we reverse the denial and remand to award such interest in conformity with this opinion.
Finally, we conclude that under the circumstances, there was no statutory authorization for an award of attorney fees. Thus, we reverse in part the judgment in two cases awarding attorney fees.
We begin with a broad overview. These appeals arose from three construction-related projects. A general contractor entered into agreements with a subcontractor for performance of electrical work, and the subcontractor obtained electrical materials and equipment from a supplier. When the subcontractor failed to pay the supplier, the supplier filed construction liens. The supplier then sued the property owners to foreclose on the liens. The general contractor posted lien release bonds and intervened. Ultimately, the district court-through a different judge in each of the three cases-entered summary judgment in favor of the supplier. Two judgments overruled requests for prejudgment interest, one overruled a request for attorney fees, and one awarded both prejudgment interest and fees. These appeals followed.
With that general understanding, we fill in the details. The general contractor, Lund-Ross Constructors Co. (Lund-Ross), was hired for the three projects involved in these appeals. The projects consisted of renovating common space at a senior living center, revamping an old apartment building into new apartments, and constructing a new apartment project, respectively.
Lund-Ross entered into contracts with Signature Electric, LLC (Signature), doing business as D&J Electric, for the performance of electrical work on the projects. Signature entered into agreements with Echo Group (Echo) to obtain electrical materials and equipment.
Generally the subcontracts between Lund-Ross and Signature specified that Signature had the responsibility to pay all amounts owed to any suppliers it engaged. The subcontracts obligated Signature to furnish satisfactory evidence to...
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......Snyder , 312 Neb. 208, 978 N.W.2d 174 (2022). . . [ 5 ] Echo Group v. Tradesman. Internat. , 312 Neb. 729, 980 N.W.2d 869 (2022). . ......
- Echo Grp., Inc. v. Tradesmen Int'l, s. S-21-729
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...... statutory words which are plain, direct, and unambiguous. See. Echo Group v. Tradesmen Internat., 312 Neb. 729, 980. N.W.2d 869 (2022). DHHS ......