GERHOLD CONCRETE v. ST. PAUL FIRE INS. CO., S-03-1064.
| Decision Date | 28 April 2005 |
| Docket Number | No. S-03-1064.,S-03-1064. |
| Citation | 269 Neb. 692,695 N.W.2d 665 |
| Parties | GERHOLD CONCRETE COMPANY, INC., a division of Lyman-Richey Corporation, appellee and cross-appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, appellant and cross-appellee, and First Dakota Enterprises, Inc., appellee and cross-appellee. |
| Court | Nebraska Supreme Court |
Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, Norfolk, for appellant.
William T. Oakes, Michael J. Leahy, and Andrew C. McElmeel, of Stinson, Morrison
& Hecker, L.L.P., Omaha, for appellee Gerhold Concrete Company, Inc.
Mark D. Fitzgerald, of Fitzgerald, Vetter & Temple, Norfolk, for appellee First Dakota Enterprises, Inc.
St. Paul Fire and Marine Insurance Company (St. Paul) provided a payment bond for First Dakota Enterprises, Inc. (First Dakota), a general contractor for a public construction project. Gerhold Concrete Company, Inc. (Gerhold), supplied concrete to CMS, Inc., First Dakota's subcontractor. CMS failed to pay Gerhold for the concrete, and Gerhold sued First Dakota on a contract theory and St. Paul on the performance bond.
The district court dismissed First Dakota from the suit but determined that a jury could find that Gerhold could recover against St. Paul on the bond. A jury returned a verdict for Gerhold. St. Paul appeals the district court's denial of its motion for a directed verdict. St. Paul claims that Neb.Rev.Stat. § 52-118.01 (Reissue 1998) required Gerhold to give 4 months' written notice to First Dakota before it could proceed against the bond, that Gerhold failed to give notice, and thus, Gerhold's claim must fail.
Under § 52-118.01, for Gerhold to recover on the performance bond, it must give written notice to the contractor within 4 months from the date of the last materials supplied, unless it had a contractual relationship, express or implied, with the contractor. Gerhold acknowledges that it did not give written notice to First Dakota. This appeal requires us to determine whether there was a contractual relationship, express or implied, that excused Gerhold from providing written notice to First Dakota.
Resolving every controverted fact in Gerhold's favor and giving it the benefit of every reasonable inference, we determine that the jury could find that First Dakota told Gerhold that it would pay for concrete supplied to CMS. Thus, the jury could conclude that a contract, and hence, a contractual relationship, existed, and the district court properly overruled the motion for a directed verdict. Likewise, we determine that the court erred when it granted First Dakota's motion to dismiss because there was evidence from which a jury could determine that a contract was formed. Accordingly, we affirm in part, and in part reverse and remand for a new trial against First Dakota.
This appeal arises from a public construction project to build a veterans home in Norfolk, Nebraska. First Dakota obtained discounted prices from Gerhold when it bid on the project. According to Gerhold, it offered those prices only if it were the sole concrete supplier for the project. First Dakota was awarded the project as general contractor. Some time later, Steve Johnson, who was Gerhold's plant manager, spoke with Wayne July, the project manager for First Dakota. According to Johnson, July confirmed that First Dakota would use Gerhold as its concrete supplier. July admitted that he committed to using Gerhold "to a certain extent," but did not commit to having Gerhold as the exclusive supplier.
First Dakota subcontracted the concrete work to CMS, and specified that CMS should use Gerhold as the supplier. Gerhold agreed to bill CMS for the concrete. Through May, June, and part of July 1999, First Dakota paid CMS, but CMS failed to pay Gerhold.
According to Johnson, he met with July and informed him that CMS failed to pay the invoices for May through July 1999, which amounted to about $100,000, and that Gerhold would stop supplying concrete if it did not receive payment. The record contains the following colloquy between Gerhold's attorney and Johnson:
Johnson later stated again that July agreed to take care of unpaid invoices if Gerhold continued to supply concrete. July denied that Gerhold ever notified him that it would stop supplying concrete if it were not paid or that he agreed to pay for unpaid invoices. He stated that had Gerhold quit delivering concrete, he would have obtained a new supplier. First Dakota paid all further invoices directly to Gerhold but did not pay for the previous, unpaid invoices for May through July.
Gerhold filed suit against First Dakota for breach of contract and against St. Paul on the bond seeking payment for the unpaid May through July 1999 invoices. After Johnson's testimony, St. Paul and First Dakota moved for a directed verdict. They argued that First Dakota did not enter into a contract for payment and that there was no contractual relationship, express or implied, for Gerhold to recover payment for past invoices. The court granted First Dakota's motion for directed verdict, stating that the evidence failed to show the formation of a contract for payment of the unpaid invoices; specifically, the court determined that Gerhold failed to show the terms of any oral contract to pay. The court then reviewed § 52-118.01, and it concluded there was evidence that a general contractual relationship existed between Gerhold and First Dakota based on the agreement that Gerhold would provide concrete at specified prices and that First Dakota would exclusively use Gerhold's concrete. Because of that contractual relationship, the court determined a jury could find that § 52-118.01 relieved Gerhold from the notice requirement and denied St. Paul's motion for a directed verdict.
The jury returned a verdict for $91,582.28, and the district court denied Gerhold's request for prejudgment interest, finding that the amount of recovery was in controversy. Gerhold had initially sought $111,137.34, but later stipulated that the amount should be reduced by $16,473.06. St. Paul appeals, and Gerhold cross-appeals. We granted St. Paul's petition to bypass.
St. Paul assigns that the district court erred by (1) failing to grant its motion for a directed verdict and to dismiss the action against it, (2) failing to allow evidence that Gerhold previously acknowledged receipt of a payment that was greater than it would admit at trial, and (3) refusing to permit cross-examination of a witness about a prior inconsistent statement in answers to interrogatories.
On cross-appeal, Gerhold assigns, rephrased, that the district court erred by (1) sustaining the motion for directed verdict for First Dakota and (2) denying an award of prejudgment interest.
A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, when an issue should be decided as a matter of law. Livingston v. Metropolitan Utils. Dist., 269 Neb. 301, 692 N.W.2d 475 (2005).
Whether a contract exists is a question of fact. See Viking Broadcasting Corp. v. Snell Publishing Co., 243 Neb. 92, 497 N.W.2d 383 (1993).
Whether prejudgment interest should be awarded is reviewed de novo on appeal. See Blue Valley Co-op. v. National Farmers Org., 257 Neb. 751, 600 N.W.2d 786 (1999).
St. Paul argues that Gerhold cannot recover on the bond because it failed to give notice as required by § 52-118.01. Gerhold argues, however, that it had a direct or implied contractual relationship with First Dakota that would relieve it from the notice requirements and allow it to recover under the bond.
Neb.Rev.Stat. § 52-118 (Reissue 1998) requires a bond for certain public building projects. It provides protection to materialmen and laborers in the construction or repair of public construction projects when the provisions of the general mechanic's lien laws do not apply. See Dukane Corp. v. Sides Constr. Co., 208 Neb. 227, 302 N.W.2d 721 (1981).
Section 52-118.01 provided in part:
Every person who has furnished labor or material in the prosecution of the work provided for in the contract set out in subsection (1) of section 52-118, in respect of which a bond is furnished under such section, and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or her or material was furnished or supplied by him or her for which such claim is made shall have the right to sue on such bond for the amount or the balance thereof unpaid at the time of the institution of such suit and to prosecute the action to final execution and judgment for the sum or sums justly due him or her. Any person having a direct contractual relationship with a subcontractor but no contractual relationship, express or implied, with the contractor furnishing such bond shall have a right of action upon the bond upon giving written notice to the contractor within four months from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished...
To continue reading
Request your trial
-
Shipler v. General Motors Corp.
...is involved only when the rules make such discretion a factor in determining admissibility. See Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692, 695 N.W.2d 665 (2005). Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility ......
-
Weyh v. Gottsch
..., supra note 5.14 Irving F. Jensen Co. v. State , 272 Neb. 162, 719 N.W.2d 716 (2006).15 Id.16 See, Gerhold Concrete Co. v. St. Paul Fire & Marine Ins. , 269 Neb. 692, 695 N.W.2d 665 (2005) ; Edward Peterson Co. v. Ulysses S. Schlueter Constr. Co. , 179 Neb. 883, 140 N.W.2d 830 (1966) (wher......
-
Hinshaw v. Ligon Industries, L.L.C., C 07-3029-MWB.
...to the existence of a contract."). Similar principles are stated by other jurisdictions, see Gerhold Concrete Co., Inc. v. St. Paul Fire & Marine Ins. Co., 269 Neb. 692, 695 N.W.2d 665, 672 (2005) ("The question of whether the parties intended to contract is a factual one, not a legal one, ......
-
Roth v. Wiese
...is involved only when the rules make such discretion a factor in determining admissibility. Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692, 695 N.W.2d 665 (2005); Kvamme v. State Farm Mut. Auto. Ins. Co., 267 Neb. 703, 677 N.W.2d 122 (2004). (b) Analysis Wiese argues that......