Getzschman v. Miller Chemical Co., Inc.
| Decision Date | 21 July 1989 |
| Docket Number | No. 87-746,87-746 |
| Citation | 232 Neb. 885,443 N.W.2d 260 |
| Parties | Frederick M. GETZSCHMAN, A.I.A., Appellee, v. MILLER CHEMICAL COMPANY, INC., a Nebraska Corporation, and Lawrence Hoffman, Appellants, Carol Hoffman, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Contracts: Architects. If there is an express contract for architectural services, an architect's duties are determined by the contract for the architect's employment.
2. Contracts: Architects. Implicit in every contract for architectural services is the duty of the architect to exercise skill and care which are commensurate with requirements of the profession.
3. Breach of Contract: Architects. If an architect fails to exercise reasonable professional care in the discharge of his contractual duties, the architect breaches the contract of employment.
4. Contracts: Architects. An architect employed to prepare plans and specifications for a building, with the understanding that construction will be accomplished within certain cost limitations, cannot recover compensation for architectural services when the building cannot be erected except at a cost materially in excess of the amount specified for construction.
5. Contracts: Architects. When an architect has no express contractual obligation to design a structure within a specified budget or to estimate the construction cost of a proposed project, construction at a cost greater than anticipated by or acceptable to the owner is no defense to an architect's action to recover a fee.
6. Judgments: Time. Neb.Rev.Stat. § 25-1315.02 (Reissue 1985) authorizes entry of a judgment notwithstanding the verdict if the appropriate motion is filed within 10 days after reception of the verdict to be set aside.
7. Judgments: Directed Verdict. A motion for judgment notwithstanding the verdict may be granted when the movant's previous motion for a directed verdict, made at the conclusion of all evidence, should have been sustained.
8. Directed Verdict. A court cannot decide an issue as a matter of law unless the facts adduced on an issue are such that reasonable minds can draw but one conclusion from the evidence. In a jury trial, when evidence compels but one reasonable conclusion regarding an issue or question in the litigation, a court can properly direct a verdict on such issue or question.
9. Jury Instructions: Proof: Appeal and Error. To establish reversible error from the court's refusal to give a requested instruction, the appellant has the burden to show that (1) the appellant was prejudiced by the court's refusal to give the tendered instruction; (2) the tendered instruction is a correct statement of the law; and (3) the tendered instruction is warranted by the evidence.
10. Trial: Evidence: Appeal and Error. Admission or exclusion of evidence is a matter for the discretion of the trial court, whose ruling on an evidential question will be upheld unless such ruling constitutes an abuse of discretion.
11. Rules of Evidence: Expert Witnesses. The first question to be answered by a court considering admissibility of expert testimony under Neb.Evid.R. 702, Neb.Rev.Stat. § 27-702 (Reissue 1985), is whether the testimony is likely to assist the trier of fact.
William F. Hargens of McGrath, North, O'Malley & Kratz, P.C., Omaha, for appellants.
Timothy J. Cuddigan of Marks & Clare, Omaha, for appellee Getzschman.
In the district court for Douglas County, Fredrick M. Getzschman, an architect, filed a breach of contract action against Lawrence (Larry) Hoffman, Carol Hoffman, and Miller Chemical Company, Inc. (Miller), a Hoffman family corporation for which Larry Hoffman was executive vice president and general manager. Getzschman based his action on his written contract to design a family home for Hoffmans and claimed $35,999.97 in damages. The defendants denied liability and counterclaimed against Getzschman. At trial, the court dismissed Getzschman's claim against Carol Hoffman. The jury returned a verdict of $35,999.97 for Getzschman and found against Hoffman and Miller on their counterclaim. Joinder of the defendants and joint or several liability are not issues in this appeal. In view of the nature of the errors assigned, a detailed narrative is necessary.
Sometime early in 1985, Hoffmans first met with Getzschman to discuss expansion of Hoffmans' existing home, namely, enlargement of one of the Hoffman house's bedrooms and the addition of two bedrooms and a bath. Hoffmans agreed to pay Getzschman $50 per hour to design the proposed expansion. According to Getzschman, Larry Hoffman never mentioned a budget or other limitation of cost for the project, but wanted to add no more than 1,000 square feet to Hoffmans' house. Larry Hoffman told Getzschman about Hoffman's background in construction, experience which Hoffman used in estimating that the proposed expansion would cost between $75 and $80 per square foot.
Getzschman prepared designs pursuant to Hoffmans' request. Hoffmans then took Getzschman's designs to Donald Bassler, a personal friend of Larry Hoffman and president of Ronco Construction Company, and Bassler estimated the construction cost at a range between $70,000 and $85,000 based on Getzschman's design for the expansion. Due to bad soil conditions at the site of the planned expansion, the addition to Hoffmans' house was abandoned in May 1985, and Hoffmans decided to build a new house on a different lot. At Larry Hoffman's request, Getzschman's bill for the abandoned expansion was sent directly to Miller, which issued its check to pay Getzschman.
In early June 1985, Hoffmans met with Getzschman regarding his designing Hoffmans' new home. According to Getzschman, much of this meeting was spent discussing the terms of Getzschman's employment. Getzschman outlined his services as the architect for Hoffmans' new house and referred to a standard preprinted agreement for architectural services. The printed contract obligated Getzschman to provide "cost estimating services," an appraisal service in which the architect attempts to determine the cost of constructing the home as designed. Getzschman testified that Hoffman said it was unnecessary to provide cost estimating on the new home because Bassler would estimate the construction cost "like he did on the addition project," which had been abandoned. In place of architectural cost estimating, Hoffman requested Getzschman to double his jobsite inspections during construction of the new house. Getzschman testified that Hoffman gave no indication about the amount he wanted to spend for the new house, but Hoffman testified that when he and his wife first visited with Getzschman concerning their new house, Getzschman was informed that Hoffmans did not want to spend more than $250,000 on construction. Getzschman told Hoffmans to clip articles or advertisements from magazines which depicted design features the Hoffmans might want to incorporate into their new home.
Sometime before June 10, 1985, Getzschman mailed a form contract to Larry Hoffman, who, after "scanning" the contract, signed the agreement as executive vice president of Miller, which was designated as the "owner" in the architectural contract submitted by Getzschman. The contract, entitled "Standard Form of Agreement Between Owner and Architect for Housing Services With Cost Estimating Services Provided by Owner," stated that Getzschman's fee would be 10 percent of the construction cost of the house. "Construction cost" was defined in the contract as "the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Architect." Twenty percent of Getzschman's fee was to be paid on completion of the "design phase" of the project, 55 percent on completion of the "construction documents phase," 5 percent on completion of the "bidding or negotiation phase," and the remaining 20 percent on completion of the "construction phase." Article 2 of the contract was entitled "The Owner's Responsibilities" and specified: "2.6 The Owner, unless otherwise provided in Article 10, shall furnish the services of a cost consultant or cost estimator to provide all construction cost data, Statements of Probable Construction Cost or other cost estimates as the Architect's work progresses." Article 10, entitled "Other Conditions or Services," contained a space for insertion of additional provisions in the contract. In this space on the Getzschman-Hoffman contract, the following was typewritten:
Concerning Article 1.4 of this agreement [architect's duties during the construction phase of the project], the Architect shall visit the site of the work semi-monthly for the purposes of inspection of progress, as part of the Basic Services of this agreement. If more frequent visits are requested by the Owner, they shall be paid for as "Additional Services"....
Concerning termination of the agreement, article 7 provided in part:
7.1 This Agreement may be terminated by either party upon seven days' written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination.
....
7.3 In the event of termination not the fault of the Architect, the Architect shall be compensated for all services performed to termination date, together with Reimbursable Expenses then due and all Termination Expenses as defined in Paragraph 7.4.
7.4 Termination Expenses include expenses directly attributable to termination for which the Architect is not otherwise compensated, plus an amount computed as a percentage of the total compensation earned to the time of termination, as follows:
.1 20 percent if termination occurs during the Design Phase, or
.2 10 percent if termination occurs during the Construction Documents Phase, or
.3 5 percent if termination occurs...
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