JAMES A. ADAMS, APPELLANT, AND REBECCA Z. ADAMS, APPELLEE,
MANCHESTER PARK, L.L.C., A NEBRASKA LIMITED LIABILITY COMPANY, AND SOUTHFORK HOMES, INC., A NEBRASKA CORPORATION, APPELLEES
Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge.
James A. Adams, of Law Offices of James A. Adams, P.C., L.L.O., Pro se.
Larry E. Welch, Sr., of Welch Law Firm, P.C., for appellee Manchester Park, L.L.C.
Patrick S. Cooper, of Fraser Stryker, P.C., L.L.O., for appellee Southfork Homes, Inc.
INBODY, Chief Judge, and IRWIN and BISHOP, Judges.
[22 Neb.App. 526] Inbody, Chief Judge
James A. Adams appeals the order of the Douglas County District Court granting the motions for summary judgment of
appellees Manchester Park, L.L.C. (Manchester), and Southfork Homes, Inc. (Southfork). For the reasons tat follow, we affirm in part, and in part reverse and remand for further proceedings.
STATEMENT OF FACTS
Manchester previously owned a subdivision in Omaha, Douglas County, Nebraska, consisting of numerous residential lots near 168th and Locust Streets. The specific lot at issue in this case is lot 178. In September and October 2003, the subdivision was graded and tested for soil compaction and field density by an engineering and inspection firm under the supervision of a professional engineer registered in the State of Nebraska. On October 3, a field density report was completed for those lots, including lot 178, and the results for lot 178 were reported as " Adeq[uate]." On October 4 and 8, the lot was retested and the results on both days were reported as " Pass."
In 2004, Southfork entered into a purchase contract with Manchester Park for the purchase of lot 178. The contract contains a provision which provides:
[Manchester] makes no representation or warranty concerning the soil compaction, buildable quality or bearing capacity of the soil of the Property. [Southfork] agrees that it is solely [Southfork's] responsibility to make appropriate tests to determine the buildable quality of the Property. If any tests conducted by [Southfork] with regard to bearing values be unsatisfactory to [Southfork], [Southfork] may rescind this Purchase Contract, and the Purchase Price, or so much thereof as has been paid, will be refunded, provided that [Southfork's] right to [22 Neb.App. 527] rescind and recover such Purchase Price shall expire at closing, or upon commencement of any grading or excavation operations on the Property, whichever date is earlier. [Southfork] acknowledges in the preparation of the lot for sale, certain changes in the contour of the Property's terrain and slope may have been made which could have an effect upon the drainage of both the lot and area in general. [Southfork] does hereby acknowledge these circumstances and does hereby release and discharge [Manchester] from any and all responsibility for the buildable quality of the lot and the control of surface water of any kind.
On August 9, 2006, James and Rebecca Z. Adams, as husband and wife, executed a purchase agreement with Southfork for the purchase and construction of a residence upon lot 178. The purchase agreement between Southfork and the Adamses provides the following:
Buyer-Owned Job Site
Special consideration is needed when building on a home site that is not owned or optioned by Southfork/Highland Homes. In the event additional (or removal) fill dirt is required and/or unforeseen grading becomes necessary, all associated costs will be borne by the purchaser. It is also the responsibility of the purchaser to be certain the home site is buildable. . . . Special design footings or ...