Tuttle & Associates, Inc. v. Gendler

• Decision Date: 12 April 1991
• Docket Number: No. 88-934,88-934
• Citation: 237 Neb. 825,467 N.W.2d 881
• Court: Nebraska Supreme Court
• Parties: TUTTLE & ASSOCIATES, INC., Appellant, v. H. Lee GENDLER, Trustee, et al., Defendants and Third-Party Plaintiffs; Chadsey Architects, Inc.; and Ameracorp, Inc., et al., Third-Party Defendants, Appellees.

Page 881

467 N.W.2d 881

237 Neb. 825

TUTTLE & ASSOCIATES, INC., Appellant, v. H. Lee GENDLER, Trustee, et al., Defendants and Third-Party Plaintiffs Chadsey Architects, Inc.; and Ameracorp, Inc., et al., Third-Party Defendants, Appellees.

No. 88-934.

Supreme Court of Nebraska.

April 12, 1991.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In considering evidence on a motion for summary judgment, both this court and the trial court must determine whether there is any genuine issue as to any material fact, whether the ultimate inferences to be drawn from those facts are clear, and whether the moving party is entitled to judgment as a matter of law.

2. Summary Judgment. Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record show that no genuine issue exists as to any material fact or as to the ultimate inferences that may be drawn from any material fact and that the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Proof. A party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists. Thereafter, the burden of producing contrary evidence shifts to the party opposing the motion.

4. Summary Judgment: Real Estate: Vendor and Vendee: Liens: Foreclosure: Proof. A vendor of real estate is entitled to summary judgment in a construction lien foreclosure if the vendor shows that an essential element of the plaintiff's cause of action is nonexistent.

5. Summary Judgment: Appeal and Error. In appellate review of an order granting a summary judgment, the Supreme Court views the evidence in a light most favorable to the party against whom the judgment is granted.

6. Contracts. The construction of a written contract, if needed, is a question of law for the court.

7. Agency: Words and Phrases. An agency relationship is a fiduciary relationship, resulting from one entity's manifested consent that another entity may act on behalf and subject to the control of the entity manifesting such control and, further, resulting from the other entity's consent to so act.

Daniel W. Evans of Domina, Gerrard, Copple & Stratton, P.C., Omaha, for appellant.

Irving B. Epstein of Gross & Welch, Omaha, for appellees Gendler and trust.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Tuttle & Associates, Inc. (Tuttle), appeals a summary judgment wherein the district court for Douglas County dissolved a construction lien Tuttle had placed on real estate for its engineering services.

After finding there was no issue of material fact existing relative to an alleged agency relationship between the owner vendor of the real estate involved and the purchaser which had contracted for Tuttle's engineering services, the trial court entered summary judgment in favor of the owner vendor. A construction lien Tuttle had filed against the vendor's real estate was dissolved. We affirm.

In considering the evidence on a motion for summary judgment, both this court and the trial court must determine whether there is any genuine issue as to any material fact, whether the ultimate inferences to be drawn from those facts are clear, and whether the moving party is entitled to judgment as a matter of law. R.A.S., Inc. v. Crowley, 217 Neb. 811, 351 N.W.2d 414 (1984). See, also, De Los Santos v. Great Western Sugar Co., 217 Neb. 282, 348 N.W.2d 842 (1984).

Summary judgment is proper when the pleadings, depositions, admissions, stipulations, and affidavits in the record show that no genuine issue exists as to any material fact or as to the ultimate inferences that may be drawn from any material fact and that the moving party is entitled to judgment as a matter of law. Neb.Rev.Stat. § 25-1332 (Reissue 1989); Joseph Heiting & Sons v. Jacks Bean Co., 236 Neb. 765, 463 N.W.2d 817 (1990); First Nat. Bank of Omaha v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 (1990).

A party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists. Thereafter, the burden of producing contrary evidence shifts to the party opposing the motion. West Town Homeowners Assn. v. Schneider, 231 Neb. 100, 435 N.W.2d 645 (1989). A vendor of real estate is entitled to summary judgment in a construction lien foreclosure if the vendor shows that an essential element of the plaintiff's cause of action is nonexistent. See Bone International, Inc. v. Brooks, 304 N.C. 371, 283 S.E.2d 518 (1981).

In appellate review of an order granting a summary judgment, the Supreme Court views the evidence in a light most favorable to the party against whom the judgment is granted. Joseph Heiting & Sons, supra.

In the light most favorable to Tuttle, the record reveals the following: H. Lee Gendler is the president of Marathon Realty Corporation, which is engaged in the business of buying and selling real estate. In 1974, Gendler and his brother, as individuals, bought 170 acres of land located in Douglas County, Nebraska. They subsequently sold an interest in this property to a group of investors and retained a one-third interest. Gendler became trustee of the property. In the late 1970's through the early 1980's, the investors subdivided and sold a majority of the acreage as single-family lots. By 1984 only five large individual lots remained, three of which were owned by the trust and all of which were suited and zoned for multifamily dwellings. Various negotiations for the sale of these lots were initiated in 1978. Written proposals were made and plans drawn up, but no proposal was accepted until 1984.

On October 3, 1984, Gendler, as trustee, sold one lot and a portion of three others, comprising approximately 21 acres, to Ameracorp, Inc., a Texas corporation, by a land contract. The sale's closing was to be no later than April 3, 1985. The contract further provided:

SECTION IV--CONDITIONS OF CLOSING:

(A) Closing shall be subject to the approval of Purchaser of the following:

....

2. ZONING: Seller warrants and represents that the property is being zoned for multi-family residential development under which 20.1 units of the configuration intended to be built by Purchaser and disclosed to Seller on attached Schedule D can be built per acre, with total density to be not less than 424 units. Purchaser agrees to a reduced site plan with a minimum of 18 units per acre should city require lower density than the attached plat. Purchaser shall submit complete documentation for a planned unit development [PUD] no later than October 16, 1984. Purchaser shall simultaneously file Application with the City of Omaha for approval of planned unit development, and pursue with due diligence.

A PUD entails a legal description, a topographic map, a general site plan, and a utility site plan. It is essentially a "footprint" of the buildings and is required by the city of Omaha whenever multiple buildings are to be built on a single lot. The developer is required to build exactly as the plans indicate. One of the zoning changes involved was a change from R-7 to R-8 PUD. Both R-7 and R-8 are residential multidwelling zoning, but vary slightly as to setbacks and front yard requirements.

The rezoning and PUD applications were filed by Ameracorp on October 17, 1984. Ameracorp's earnest money had been received upon execution of the contract and in December 1984. On April 5, 1985, an addendum to the contract was executed, wherein the closing date was extended to August 3, 1985. For delaying the closing and for keeping the property off the market, Ameracorp paid additional earnest money plus three monthly installments of $5,000. The addendum further provided that Ameracorp's failure to meet the new closing date would result in forfeiture of all funds it had paid to Gendler as trustee.

Although the closing date passed without Ameracorp acting, Ameracorp continued the monthly payments for September and October 1985. On October 14, Gendler notified Ameracorp that if it did not close by October 31, the contract would be canceled because of Ameracorp's failure to perform. The contract was subsequently terminated. Thereafter, Gendler, who regarded the PUD designation received by Ameracorp as an encumbrance, took steps in 1988 to have it removed. According to Gendler, the particular plan was not highly regarded because it was the same plan as another Ameracorp project which had been a poor market performer. The existence of the PUD represented a stumbling block to prospective buyers of the property.

From the early to mid-1980's, Ameracorp was building, in the process of building, or negotiating projects totaling 3,000 apartment units in seven states, including Nebraska. Chadsey Architects, Inc. (Chadsey), of Oklahoma, was the architect for all of Ameracorp's projects, including the project in question, known as Apple Creek of Omaha II, or Apple Creek Blondo (Blondo). Chadsey was employed and was to be paid by Ameracorp.

In late 1984, Chadsey, together with Al C. Young & Associates (Young), civil engineers, entered into a joint agreement with Ameracorp for architectural and engineering services for various multifamily projects. Between June 5 and August 31, 1985, pursuant to the agreement, Young's successor in interest, Tuttle, an Oklahoma corporation, performed boundary surveying, topographic surveying, and civil engineering design for the Blondo project. Based upon the Chadsey/Young-Ameracorp agreement fee schedule, Tuttle billed Ameracorp $42,522.04 for its services. Upon failing to receive any money for the Blondo project, Tuttle, on October 2, 1985, filed a construction lien against the Blondo property. Thereafter, Tuttle sued Ameracorp and its president, Steve Holsey. Although Tuttle obtained judgments against Ameracorp and Holsey, it was unable to collect them because, in September 1986, Ameracorp filed a petition in bankruptcy and Holsey could not...