Wiekhorst Bros. Excavating & Equipment Co. v. Ludewig

• Decision Date: 10 March 1995
• Docket Number: No. S-93-545,S-93-545
• Citation: 247 Neb. 547,529 N.W.2d 33
• Parties: WIEKHORST BROTHERS EXCAVATING & EQUIPMENT COMPANY, a general partnership, Appellant, v. Otto LUDEWIG et al., Appellees.
• Court: Nebraska Supreme Court

Page 33

529 N.W.2d 33

247 Neb. 547

WIEKHORST BROTHERS EXCAVATING & EQUIPMENT COMPANY, a general partnership, Appellant, v. Otto LUDEWIG et al., Appellees.

No. S-93-545.

Supreme Court of Nebraska.

March 10, 1995.

Syllabus by the Court

1. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations 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.

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.

3. Rules of Evidence: Hearsay. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence. The admission of hearsay is controlled by the Nebraska Evidence Rules.

4. Conspiracy. A conspiracy to unlawfully injure another's business is actionable.

5. Conspiracy. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

6. Torts: Intent: Proof. The necessary elements of tortious interference with a business relationship or expectation are (1) the existence of a valid business relationship or expectancy, (2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of interference on the part of the interferer, (4) proof that the interference caused the harm sustained, and (5) damage to the party whose relationship or expectancy was disrupted.

7. Conspiracy: Corporations: Agents. A corporation cannot conspire with an agent when the agent is acting within the scope of his or her authority. Corporations act through their agents, and the acts of an agent are the acts of the corporation.

8. Conspiracy: Damages. The gist of a civil conspiracy action is not the conspiracy charged, but the damages the plaintiff claims to have suffered due to the wrongful acts of the defendants.

9. Conspiracy: Damages: Proof. Failure to prove a conspiracy is of no consequence if the plaintiff is able to establish that one or more defendants committed wrongful acts resulting in damages.

10. Torts: Intent: Proof. One of the basic elements of tortious interference with a business relationship requires an intentional act which induces or causes a breach or termination of the relationship. An intentional, but justified, act of interference will not subject the interferer to liability.

11. Torts: Construction Contracts: Intent. Design professionals acting within the scope of their contractual obligations are privileged to give the owner advice which may lead to the termination of a contractor. Absent a showing of bad faith or malice, a design professional's intentional, but justified, act of interference will not subject it to liability for tortious interference with business.

12. Rules of Evidence: Hearsay. Out-of-court statements, if not offered for the purpose of proving the truth of the facts asserted, are not hearsay. Neb.Rev.Stat. § 27-801 (Reissue 1989).

Dan D. Stoller, Elkhorn, for appellant.

Thomas J. Guilfoyle, of Frost, Meyers, Guilfoyle & Govier, Omaha, for appellees.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, and CONNOLLY, JJ.

LANPHIER, Justice.

Appellant, Wiekhorst Brothers Excavating & Equipment Company, brought this civil conspiracy action in the district court for Douglas County, Nebraska, against five individuals employed by the engineering firm of Lamp, Rynearson & Associates, Inc. Appellant claims that the five individuals, for their own personal motives, conspired to intentionally interfere with and destroy appellant's business by wrongfully recommending its termination from two sanitary and improvement district storm sewer projects. The district

court granted appellees' motion for summary judgment. We affirm because there is no genuine issue of material fact. Appellees acted at all material times within the scope of their employment. As a matter of law, they therefore cannot be liable individually for conspiracy. We further hold that the district court did not err in admitting certain affidavits over appellant's hearsay objections.

FACTS

This case involves a dispute between a contractor and five employees of an engineering firm. Appellant, Wiekhorst Brothers Excavating & Equipment Company, brought this action against appellees, Otto Ludewig, Michael McMeekin, Brett Wawers, Jeff Ray, and Loren Steenson, in their individual capacities. The appellees are all employees of the engineering firm Lamp, Rynearson & Associates, Inc. (LRA).

LRA was employed as a design engineer on two unrelated projects by two sanitary and improvement districts (SID's) located in Douglas County. SID No. 337 employed LRA to design and assist in the construction of a public improvement, Storm Sewer Section I, within the Nelson Creek Subdivision in 1986. That same year, SID No. 291 employed LRA to design and assist in the construction of public improvements in the Pacific Meadows Subdivision.

LRA's duties required it to prepare the plans and specifications for the projects to be constructed by the two SID's. LRA's duties also included the preparation of contract documents and handling of the public bid-letting. In addition, LRA was required to ensure that the construction of the public improvements complied with the plans and specifications and the contract documents.

Appellee Ludewig was vice president and director of LRA and was the head of its construction administration division. Appellee McMeekin was the head of LRA's civil engineering department. Steenson was a civil engineer and was the project engineer for SID No. 337. Wawers was an engineer and was Ludewig's chief assistant in the construction administration division. Ray was an engineer and was LRA's construction observer on the SID No. 337 project.

Appellant was the low bidder for Storm Sewer Section I of SID No. 337. Storm Sewer Section I involved the construction of a storm sewer following the alignment of a tree-lined intermittent creek. Preserving the greatest number of trees possible was considered essential to the project, which centered around maintaining the natural beauty of the subdivision.

Appellees allege that the quality of appellant's work suffered from the beginning of the project. Some of these allegations are recounted below with appellant's responses.

Appellee Steenson avers that he observed several problems. The pipes were not properly aligned either vertically or horizontally, dirt was being removed from adjacent building lots, and trees marked for preservation were being damaged or destroyed. Appellant admits that it damaged and removed trees which were marked to be saved, but claims that it was going to compensate the developer by paying liquidated damages. Appellant admits that it removed substantial amounts of dirt from adjacent building lots, but states that it was going to replace the dirt at a later time.

Part of the project called for 72-inch equivalent horizontal elliptical reinforced concrete pipe. The 72-inch pipe was difficult to lay. It is elliptical and therefore relatively flat on both the top and the bottom. One end of the pipe has a male coupler and the other end of the pipe has a female coupler. Those sections must be pushed together to make a tight fit. A number of the sections had unacceptable gaps, in excess of 1 inch. Appellant was repeatedly asked to fix the gaps by pouring concrete collars around the joints. Prior to fixing the gaps and pouring concrete collars, appellant covered the pipe with dirt, including most of the defective pipe. Appellant admits that many of the joints between the pipes were faulty, but states that it was going to go back and fix the joints at a later time.

The contract required the pipe to be laid on a crushed rock bed, and the pipe and the rock bed to be encased in a geotechnical cloth material to provide stability to the pipe sections. Ludewig called Michael Siedschlag On or about November 3, 1986, vandals damaged most of the pipe remaining to be laid. Ludewig; the concrete supplier, Hydro Concrete; and Scott Wiekhorst met. Ludewig concluded that the problem could be corrected by turning over the pipe and repairing the top part. When Ludewig returned to the jobsite later in the day, he discovered that appellant was merely throwing the pipe into the trench and was not repairing the broken portion of the pipe.

from Geotechnical Services, Inc., and Scott Wiekhorst to the jobsite on October 17, 1986. Siedschlag determined that appellant was not laying the rock bed correctly and that water was not being pumped from the trench. Siedschlag suggested several corrective measures, none of which were taken by appellant.

A survey of the site was performed on or about November 3, 1986, and it was determined that the storm sewers were off line horizontally and vertically. Appellant admits that the storm sewer pipe was out of vertical and horizontal alignment but blames LRA for specifying the wrong amount of rock base and improper staking.

Ludewig and LRA's president and a member of its board of directors, Gary Kathol, discussed the problems and determined to contact the representatives of SID No. 337. A meeting was held at LRA on November 4, 1986. The meeting included Kathol and appellees Ludewig, McMeekin, Steenson, and Wawers. In attendance were Pat Jacobs, chairman of SID No. 337, Steve Jacobs, clerk of the SID, and John Rickerson, attorney...