Holt County School Dist. No. 0025 v. Dixon
| Decision Date | 18 May 1999 |
| Docket Number | No. A-97-1296,A-97-1296 |
| Citation | 8 Neb.App. 390,594 N.W.2d 659 |
| Parties | HOLT COUNTY SCHOOL DISTRICT NO. 0025, commonly known as West Holt Rural High School, a political subdivision of the State of Nebraska, appellant, v. Richard L. DIXON, an individual, doing business as Track Renovations & Asphalt Coating, appellee. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
3. Summary Judgment: Proof. A party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.
4. Summary Judgment: Evidence: Proof. After a party moving for summary judgment has shown facts warranting judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law.
5. Summary Judgment: Affidavits. If a movant for summary judgment submits an affidavit as to a material fact and that fact is not contradicted by the adverse party, the movant is entitled to summary judgment.
6. Affidavits. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
7. Summary Judgment: Affidavits. To be effective, evidence opposing the rendition of a summary judgment must be made on personal knowledge and show 8. Evidence. Opinion evidence which is unsupported by appropriate foundation is not admissible.
affirmatively that the affiant is competent to testify to the matters stated therein. Additionally, statements in affidavits as to opinion, belief, or conclusions of law are of no effect.
9. Trial: Witnesses. The opinion of a lay witness, formed without personal knowledge, would be inadmissible at trial.
10. Hearsay: Words and Phrases. Hearsay is defined as a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted.
11. Waiver: Appeal and Error. Errors not assigned in an appellant's initial brief are waived and cannot be asserted for the first time in a reply brief.
12. Appeal and Error. An appellate court always reserves the right to note plain error which was not complained of at trial or of appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
13. Summary Judgment: Motions for Continuance: Affidavits. As a prerequisite for a continuance, or additional time or other relief, under Neb.Rev.Stat. § 25-1335 (Reissue 1995), a party is required to submit an affidavit stating a reasonable excuse or good cause for the party's inability to oppose a summary judgment motion.
Steve Williams, of Recknor & Associates, for appellant.
Melissa A. Schrant, of Freese & Einspahr, P.C., Norfolk, for appellee.
Holt County School District No. 0025, commonly known as West Holt Rural High School (West Holt), appeals from an order of the district court for Holt County, dated December 1, 1997, granting a motion for summary judgment filed by Richard L. Dixon, an individual, doing business as Track Renovations & Asphalt Coating. For the reasons set forth below, we affirm.
In a petition filed April 11, 1997, West Holt alleged that on April 27, 1995, Dixon entered into a contract with West Holt to undertake certain repairs on the athletic running track at the West Holt high school. West Holt alleged that Dixon performed the contract but did so in a nonworkmanlike and negligent manner and that as a result, the track had experienced numerous cracks and deteriorated into an unusable and dangerous condition. West Holt alleged that there were numerous separations between the running surface and the base materials and that the filler material Dixon applied to the cracks on the track had separated from the cracks and failed to bond.
In its first cause of action, West Holt alleged that as a proximate result of Dixon's breach of the contract, it was required to make temporary repairs to the track in an effort to comply with its interscholastic contracts. West Holt alleged that these temporary repairs cost $2,800. In its second cause of action, West Holt alleged that as a proximate result of Dixon's breach, it would be required to remove the improperly placed surface on the track and redo the work previously done on the track by Dixon. West Holt alleged that the fair and reasonable cost of these repairs is $28,300. In total, West Holt requested $31,300 in damages, costs of the action, and other just and equitable relief.
In an answer filed May 15, 1997, Dixon admitted that he undertook to perform the contract but denied every other allegation in West Holt's petition, except those constituting On October 24, 1997, Dixon filed a motion for summary judgment and requested that the trial court dismiss West Holt's petition because there is no genuine issue as to any material fact. Dixon stated that he was entitled to judgment as a matter of law.
admissions against West Holt's interest. Dixon requested that West Holt's petition be dismissed with prejudice at West Holt's costs and that he be awarded his costs and expenses.
A hearing on Dixon's motion for summary judgment was held on November 12, 1997. At the hearing, Dixon offered into evidence his deposition and affidavit; the affidavit of George Shinker, the former superintendent of West Holt; and the contract at issue in the instant case.
In Dixon's affidavit, he stated that in the summer and fall of 1994, he negotiated with the West Holt school board (Board) with respect to doing some work on the track at the school. Dixon stated that he spoke with Shinker, the superintendent of West Holt at that time. Dixon stated that early in the negotiation process, he viewed the track and noticed that the track had a problem with cracking. Dixon stated that after speaking with Shinker, he made his first proposal, suggesting that he completely tear out the track and redo it. Dixon testified that he told both the Board and Shinker that cracking would always be a problem unless he fixed the base, where the problem originated, and that this was the only way to eliminate any problems with cracking. Dixon stated that he told the Board that anything else would be nothing more than a temporary fix, that the cracking would continue and very likely worsen, and that the track itself would continue to deteriorate. Dixon stated that it would cost $140,000 to tear up the track and redo it and that because of the cost, the Board rejected his first proposal.
Dixon stated that the Board chose another alternative, signing two contracts on May 1, 1995. Pursuant to the first contract, Dixon was required to repair any cracks and place a new rubber surface on the high jump area and two runway areas at the West Holt high school. In the second contract, Dixon agreed to repair the cracks and apply a new surface to the school's running track. Only the second contract is at issue in this appeal, and therefore, we will not discuss the first contract further. In the contract at issue, Dixon included a 3-year guarantee on the materials he used as well as his workmanship, "except that as applied to cracks."
Dixon stated that he told Shinker and the Board that the longevity of his work would depend on maintenance of the track. Dixon stated that he suggested that West Holt maintain the track on at least an annual basis. Dixon stated that without such maintenance, the track would start deteriorating, even deteriorate rapidly, and that the cracks would reopen, depending on the water cycle. Dixon stated that the Board rejected the maintenance agreement he proposed with the contract, the Board concluding that it would deal with the issue when and if problems occurred. Dixon stated that he also suggested to the Board that curbs be installed around the track, preventing the track from expanding and contracting, which causes cracks. Dixon stated that he advised Shinker and the Board that this would prevent new cracks from developing, but that it would not do much to fix the existing cracks unless the base was stabilized. Dixon stated that the Board rejected this proposal, claiming that the cost of $20,000 was beyond its means.
Similarly, in Dixon's deposition, he testified that he is self-employed and that he has been repairing and installing running tracks since 1983. Dixon testified that since 1983, he has installed 75 to 80 tracks. Dixon testified that he was a sole proprietor while working on the West Holt track and that he incorporated his business, effective April 1, 1997. Dixon outlined the work he had done on the West Holt track in October 1995, stating that he filled in Dixon testified that West Holt contacted him sometime after October 1995 to inspect the track, stating that several of the cracks on the track had reopened. Dixon testified that he did not inspect the West Holt track at that time.
the existing cracks on the track's surface, cleaned the track surface, and applied a new rubber surface to the track in multiple layers. Dixon...
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