Hroch v. Farmland Industries, Inc.
| Decision Date | 28 May 1996 |
| Docket Number | No. A-95-332,A-95-332 |
| Citation | 4 Neb.App. 709,548 N.W.2d 367 |
| Parties | Robert HROCH, doing business as Associated Wrecking Co., Appellant, v. FARMLAND INDUSTRIES, INC., a Kansas corporation, 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. Breach of Contract: Limitations of Actions. The cause of action for a breach of contract accrues, and the statute of limitations begins to run, when the breach occurs.
4. Breach of Contract: Damages: Intent. A claim for damages based on intentional interference with contractual relations accrues when the subject contract is breached, regardless of when the defendant supposedly induced the breach.
5. Limitations of Actions: Torts. Actions for tortious business interference must be filed within 4 years under Neb.Rev.Stat. § 25-207 (Reissue 1995).
David Clark, Omaha, for appellant.
John R. Douglas, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.
Robert Hroch, doing business as Associated Wrecking Co., appeals the district court order granting summary judgment to Farmland Industries, Inc. (Farmland). Hroch brought an action for tortious interference with a business relationship against Farmland after Borton, Inc., a general contractor, canceled Hroch's subcontract with Borton to perform certain demolition work on grain bins owned by Farmland.
Farmland hired a general contractor, Borton, to remove grain bins at a grain terminal elevator located near 34th and Vinton Streets in Omaha. Borton in turn subcontracted with Hroch. Borton and Hroch entered into an agreement on February 1, 1989, the terms of which included those in purchase order No. 89-0060, which was attached to the agreement and incorporated therein. The purchase order specified that Hroch was to remove the grain bins by cutting sections of concrete and lowering them to the ground and that at no time was Hroch or his employees to use a torch or electrical arc welder on the project. Borton's general contract with Farmland stated that neither Borton nor its subcontractor could use any torches or welders unless Farmland gave advance approval. The Borton-Hroch agreement also contains the following provision:
Should the subcontractor at any time refuse or neglect to supply a sufficient number of properly skilled workmen, or of materials of the proper quality or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, and the contractor shall deem that such refusal, neglect or failure is sufficient grounds for such action, the contractor shall have the right to terminate the employment of the subcontractor for the said work by written notice stating the effective date....
The agreement further provides that should the contractor terminate the employment, it will not pay the subcontractor until the contractor finishes the work left undone by the subcontractor. Moreover, any further payments will be calculated by deducting any expenses and damages incurred by Borton from the unpaid amount.
According to the affidavit of Borton's purchasing agent, Bill Jennings, Borton orally notified Hroch on April 26, 1989, that the purchase order would be terminated. Farmland's answer to Hroch's petition alleged that Hroch was ordered to discontinue all demolition work and immediately vacate the jobsite because Hroch used an acetylene torch without permission, failed to use care regarding falling debris from the demolition work, and failed to work at a timely pace. Hroch testified in his deposition that sometime prior to noon on April 29, 1989, he received a phone call from Borton informing him that Borton was canceling his contract. Hroch testified that at noon on April 29, he received a purchase order form from Borton dated April 27, 1989, which was entitled "ADDITION TO P.O. NO. 89-0060" and stated, "PLEASE CANCEL THIS ORDER IN ITS ENTIRETY."
Hroch alleged in an affidavit in evidence that he received a letter of termination from Borton "on or after" May 3, 1989, which stated that his contract was terminated and that the letter was to serve as confirmation of the oral notification and the addition to the purchase order, dated April 27, 1989, canceling the contract. The letter stated that Hroch's contract was terminated because of (1) failure to conduct work at a timely pace, (2) disregard for instructions disallowing the use of an acetylene cutting torch on the premises, (3) failure to exercise care and caution during demolition work, (4) repeated complaints by Farmland about the progress of the work and the manner in which it was done, and (5) a demand by Farmland that Hroch be discharged for letting slabs of concrete " 'free fall,' " instead of lowering them to the ground by crane, as required under the contract.
On May 3, 1993, Hroch filed suit alleging that Farmland had tortiously interfered with his business contract with Borton. Farmland filed a motion for summary judgment on the basis that Hroch's petition was time barred as the statute of limitations had run prior to his filing the petition. The district court granted Farmland's motion and dismissed Hroch's petition. Hroch appeals.
Hroch makes numerous assignments of error, all of which simply restate that the district court erred when it granted Farmland's motion for 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. C.S.B. Co. v. Isham, 249 Neb. 66, 541 N.W.2d 392 (1996). 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. Id.
Hroch alleges the district court erred when it granted summary judgment on the basis that the statute of limitations had run prior to his filing of his petition. Hroch alleges that he was not damaged by Farmland's alleged tortious interference with his contractual relationship with Borton until after he received written confirmation of the termination on May 3, 1989. On appeal, Hroch argues that he did not receive written notice of the termination of his subcontract until May 3.
Hroch's own testimony, however, belies this argument. Hroch testified that he received written notice of termination of his contract on April 29, 1989, when he received the purchase order form, dated April 27, 1989, which stated that the purchase order for Hroch's services as a subcontractor would be canceled. The question for this court then is to determine whether Hroch's cause of action accrued by April 29.
Hroch argues in his brief that his cause of action against Farmland could not accrue until sometime after May 3, 1989, because in the contract between Hroch and Borton there is a provision which states that if the contractor terminates the contract, the subcontractor will not be paid until the contractor finishes the work and expenses and damages can be determined. Because Hroch's exact damages could not be determined until Borton finished the project, Hroch argues, his action did not accrue until sometime after May 3.
In L.J. Vontz Constr. Co. v. Department of Roads, 232 Neb. 241, 440 N.W.2d 664 (1989), a contractor entered into a written construction contract with the Department of Roads (Department) on September 27, 1983, and the contractor began work on May 9, 1984, and continued until the contractor received a...
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