Metropolitan Technical Community College Area v. South Omaha Indus. Park Development Corp.

• Decision Date: 12 December 1980
• Docket Number: No. 43108,43108
• Parties: The METROPOLITAN TECHNICAL COMMUNITY COLLEGE AREA, a technical community college area, Appellant, v. SOUTH OMAHA INDUSTRIAL PARK DEVELOPMENT CORPORATION, a Nonprofit Corporation, and Omaha Industrial Foundation, a Nonprofit Corporation, Appellees.
• Court: Nebraska Supreme Court

Page 535

299 N.W.2d 535

207 Neb. 472

The METROPOLITAN TECHNICAL COMMUNITY COLLEGE AREA, a technical community college area, Appellant, v. SOUTH OMAHA INDUSTRIAL PARK DEVELOPMENT CORPORATION, a Nonprofit Corporation, and Omaha Industrial Foundation, a Nonprofit Corporation, Appellees.

No. 43108.

Supreme Court of Nebraska.

Dec. 12, 1980.

Syllabus by the Court

1. Summary Judgment. The moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact in the case and where, under the facts, he is entitled to judgment as a matter of law.

2. Summary Judgment. The issue on a motion for summary judgment is whether or not there is a genuine issue as to any material fact and not how that issue should be determined. In considering such a motion, the trial court must take the view of the evidence most favorable to the party against whom the summary judgment motion is directed, giving to that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.

3. Summary Judgment. Summary judgment is not appropriate, even where there are no conflicting evidentiary facts, if the ultimate inferences to be drawn from those facts are not clear.

4. Questions of Fact. When undisputed facts require the exercise of reason and judgment so that one reasonable mind may infer that a controlling fact exists and another that it does not exist, there is a question of fact.

William Jay Riley of Fitzgerald, Brown, Leahy, Strom, Schoor & Barmettler, Omaha, for appellant.

Neil B. Danberg, Jr., of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellees.

Heard before KRIVOSHA, C. J., McCOWN, and WHITE, JJ., and COLWELL and HUBER, District Judges.

KRIVOSHA, Chief Justice.

This is an appeal from a judgment entered by the District Court for Douglas County, Nebraska, sustaining a motion for summary judgment filed by one of the appellees herein, Omaha Industrial Foundation, a nonprofit corporation (OIF). Several assignments of error are made by the appellant, the Metropolitan Technical Community College Area (Metro Tech). For purposes of this appeal, however, we need only consider whether a genuine issue as to a material fact existed. If such an issue existed, the trial court erred in granting the motion for summary judgment. Our review of the case convinces us that a genuine issue as to a material fact did exist and that the trial court, therefore, was in error in granting the motion for summary judgment. Therefore, we reverse and remand.

Shortly after its formation in April of 1974, Metro Tech began looking for campus cites in the Omaha, Nebraska, metropolitan area. Metro Tech chose as a first priority a campus in South Omaha. At that time, one of the appellees herein, South Omaha Industrial Park Development Corporation (South Omaha Corp.), was offering land for sale in an industrial part located in South Omaha. OIF served as the sales agent for South Omaha Corp. The particular tract in question was a part of what was once Omaha's thriving stockyards and meatpacking industry and which was, in the late 1960's, idled and abandoned.

South Omaha Corp., with funds raised from private sources, including individuals, businesses, and banks, purchased a tract of land on the site of the old stockyards, immediately to the west of the South Omaha business district. Following the purchase of the real estate, the U. S. Department of Commerce awarded the city of Omaha a federal redevelopment grant to create a 106-acre industrial park.

The engineer selected to design the industrial park was the Leo A. Daly Company. According to Mr. Ed Cambridge, an employee of the Daly Company, the purpose of the project, after the land was acquired, was to clear and grade the land and install utilities and streets for industrial sites. However, before the land could be turned into an industrial park, various buildings on the land had to be demolished, including the large Armour packing plant and various livestock pens.

In formulating specifications for the industrial park, and specifically for clearing the land after the structures had been demolished, the Daly Company, in cooperation with the Omaha Public Works Department, concluded that foundation and debris should be cleared down to 2 feet below grade but not below that point. After the specifications were established, contracts were let and the work commenced on the creation of the South Omaha Industrial Park which was completed in late 1973.

Once the park had been completed, the South Omaha Corp. engaged OIF as a broker to assist in the sale of the land. Metro Tech became interested in acquiring some of the land for the development of its campus. The land sale was negotiated primarily between the president of Metro Tech, Dr. Marm Harris, and the executive director of OIF, Richard Sorenson. Harris maintains that, during the negotiations, Sorenson represented to Harris that the prior building structures on the premises had been demolished and dug up; that the debris had been removed; and that the land was fully developed ready to build on and suitable for Metro Tech campuses. Sorenson admitted that he advised Harris that, "The buildings are now torn down, the site has been readied for construction and it is available for sale." The land was purchased by Metro Tech.

When Metro Tech began construction, it discovered that the site would not support building foundations because of the condition of the soil below the surface. Beginning only 2 feet below ground level were found building remnants, subterranean rooms, tunnels, drains, layers of brick and mortar, broken concrete, and miscellaneous decomposable materials which had not been either completely demolished or removed. As a result, Metro Tech had to spend over $95,000 to remove the debris and other material and to fill and compact the earth before it constructed the first two campus buildings on the site.

Metro Tech filed suit against OIF and South Omaha Corp. maintaining that, by reason of false representations and concealment of the fact that the land was not ready to be built upon, Metro Tech...