TOM HOUSER, APPELLANT AND CROSS-APPELLEE.
AMERICAN PAVING ASPHALT, INC., APPELLEE AND CROSS-APPELLANT.
1. Courts: Appeal and
Error. The district court and higher appellate
courts generally review appeals from the county court for
error appearing on the record.
Judgments: Appeal and Error. When reviewing
a judgment for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
Appeal and Error: Words and Phrases. Plain
error exists where there is an error, plainly evident from
the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and
is of such a nature that to leave it uncorrected would cause
a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process.
Courts. The district court has certain
inherent powers by virtue of being a court.
Nebraska courts, through their inherent judicial power, have
the authority to do all things reasonably necessary for the
proper administration of justice.
Courts: Judgments: Jurisdiction: Appeal and
Error. An intermediate appellate court may timely
modify its opinion, which is consistent with the generally
recognized common-law rule that an appellate court has the
inherent power to reconsider an order or a ruling until
divested of jurisdiction.
Courts: Appeal and Error. In cases where no
statement of errors was filed, but the record showed that the
district court considered an issue that was also assigned to
a higher appellate court, the Supreme Court or the Court of
Appeals may consider that issue. [299 Neb. 2]
8. Courts: Time: Appeal and
Error. The district court has discretion to extend
the time for filing a statement of errors.
__:__: __. On appeal from the county court, a district
court's ruling on a motion to extend the time for filing
a statement of errors will be reviewed for an abuse of
from the District Court for Douglas County, Leigh Ann
Retelsdorf, Judge, on appeal thereto from the County Court
for Douglas County, Marcena M. Hendrix, Judge. Judgment of
District Court affirmed in part, and in part reversed and
remanded with directions.
J. Koukol, Sharon A. Hansen, and Michael W. Milone, of Koukol
& Johnson, L.L.C., for appellant.
B. McVay, of Tiedeman, Lynch, Kampfe, McVay & Respeliers,
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
NATURE OF CASE
homeowner brought a breach of contract action against the
company that laid his asphalt driveway, after the driveway
prematurely began to deteriorate. The county court entered
judgment in favor of the homeowner, but on appeal, the
district court significantly reduced the award. The parties
dispute whether review of the county court's verdict is
limited to plain error, because the asphalt company failed to
timely file its statement of errors to the district court.
The parties also dispute whether there was sufficient
evidence that it was reasonable and necessary for the
homeowner to contract for a stopgap repair of patchwork
replacement of broken sections and, subsequently, for a
2-inch overlay of the entire driveway. Finally, the asphalt
company contests attorney fees awarded to the homeowner in
relation to the company's late production of documents
that were the subject of an order to compel in county court.
Neb. 3] II. BACKGROUND
2008, Tom Houser entered into a written contract with
American Paving Asphalt, Inc. (American Paving), to convert
his 1, 440-foot limestone driveway into an asphalt driveway.
Houser had negotiated the contract with Mark Hall, the
co-owner of American Paving. Hall had proposed a 3-inch
asphalt overlay on top of the existing limestone, at a cost
of $16, 000.
to Houser, after signing the contract with American Paving
for a 3-inch overlay, he discussed with Hall concerns about
the lack of traction during the winter on the steepest part
of the driveway. According to Houser, Hall proposed traction
indentations in about 300 feet of the driveway that would be
made by raking through the asphalt. According to Houser, Hall
proposed that they lay an extra 2 inches of asphalt depth
where the traction strips would be placed.
was no written contract regarding the traction strips, but it
is undisputed that American Paving charged $1, 500 for the
added work. In addition, there was evidence that Hall had
recommended to Houser that he seal-coat the driveway.
months after the installation of the asphalt overlay, Houser
paid Hall an additional $1, 500 to seal-coat the driveway and
repair some cracks that had already occurred. The invoice for
the repair and seal coat stated that American Paving
"[w]ill fill any cracks that surface from sealcoating
job at no cost to homeowner." In total, Houser paid
American Paving $19, 000 for the asphalt driveway.
cracks continued to occur in the asphalt driveway. By 2010,
larger chunks of the driveway began to break apart and cracks
of various sizes were visible on the majority of the
driveway. American Paving stopped responding to Houser's
requests for repairs, and Houser sued American Paving in
county court for breach of contract.
Evidence of Breach
presented the expert testimony of Douglas Dreessen, a
registered professional civil engineer, who opined that the
[299 Neb. 4] driveway was defective and did not substantially
conform to the contract. Dreessen explained that there are
two important elements to asphaltic cement paving. First, the
subgrade must be compacted. Second, the thickness of the
pavement must be adequate to support the type of traffic
anticipated. With regard to thickness, Dreessen also
testified that it is important for the pavement to be uniform
so that there are not weak areas that will tend to give out.
testified that absent instruction to the contrary, his goal
as a professional engineer is to design asphalt driveways
with a 20-year design life. Over American Paving's parol
evidence objection, Houser also testified at trial that Hall
told him the driveway would last at least 20 years. At trial,
Hall denied making such a guarantee or that it was an
visually inspected the driveway in 2013. He observed numerous
"alligatored" areas where failure was occurring.
Given that the driveway was only 5 years old at the time of
the inspection, this was considered a "premature
failure" of the driveway. A report prepared by
Dreessen's civil engineering firm noted significant
weathering, oxidization, raveling, and wearing away of the
had his staff conduct tests to determine the pavement
thickness and compaction. They bored into six different areas
throughout the length of the driveway where it appeared to be
thickest and not yet cracked or broken. The samples
demonstrated a thickness ranging from PA to
2Vi inches, with an average measurement of 2 inches.
Based on the results of the tests conducted, Dreessen opined
that the cracking and distress of the asphalt driveway
occurred because the asphalt was too thin and was placed on
an inadequate base due to nonuniform and subgrade compaction.
opined that Houser's driveway was not constructed in
substantial compliance with the specifications of the
contract. In his work, Dreessen regularly supervised
contractors to ensure that their work was in substantial
compliance with the [299 Neb. 5] specifications and plans. In
his experience, contract specifications for asphalt depth
referred to the depth after it was rolled and compacted. He
stated that the depth of the asphalt would never be measured
before it was compacted, because "[w]hen we specify for
an asphalt project, we need to be able to go back and verify
what is on the plans . . . ." Further, Dreessen stated
that the work did not comply with the specifications in the
contract that it be graded and compacted to maximum strength.
Evidence of Damages
testified that for a couple of years after American Paving
stopped making repairs, Houser sealed the cracks himself as
they continuously appeared. Then, in 2012, Houser hired
Asphalt Maintenance, Inc., to replace several large sections
that had begun to break apart into larger chunks. Houser paid
Asphalt Maintenance $5, 110 for replacing the severely
damaged sections of the driveway, plus $550 for sealing
various cracks in the remaining lengths of the driveway.
Houser had obtained more than one bid and chose Asphalt
Maintenance because it had presented the lowest bid.
Houser considered Asphalt Maintenance's work only a
"stopgap measure before the winter of 2012." Houser
was attempting only to address the areas of the driveway that
were the most damaged and might come up in more large pieces
when he used a snowplow. Over American Paving's
objection, Houser testified that he thought that the repairs
by Asphalt Maintenance were necessary.
the 2012 repairs, the driveway continued to deteriorate. The
2013 report by Dreessen's firm noted that the oxidation
and raveling observed at the time of the report would combine
to allow for additional pathways for water and air to
continue the weathering process and extend the cracking
during freeze-thaw cycles. Houser also testified that with
various repaired patches, the driveway "looked
terrible" overall, with a variegated light-and-dark
Neb. 6] As a solution to this continuing deterioration and
the patchwork appearance due to previous repairs, Houser
chose to have a 2-inch asphalt overlay placed on the entire
length of the driveway. Houser generally indicated, over
objection, that he had reached the 2-inch overlay solution
after consultation with others. And Houser testified, over
objection, that without adding a 2-inch overlay, he would
have continued to have to pay to replace additional sections.
asphalt company Houser contracted with charged $26, 189.09
for the 2-inch overlay. Again, Houser had obtained more than
one bid and chose the contractor who presented the lowest
bid. Even with the 2-inch overlay, Houser anticipated
additional cracking and costs associated with repairs in the
cross-examination, Houser admitted that certain areas of the
driveway, approximately 150 to 200 feet, were still in
relatively good condition and not "defective."
However, he believed that most of the driveway was
unacceptable and he did not "feel like taking a roller
coaster ride going up my driveway where its two inches higher
time of trial, it had been about VA years since the
overlay had been installed. Houser testified that there had
been a noticeable change in the amount of deterioration. He
said: "[It l]ooks like a nice, smooth asphalt driveway.
It has a small handful of cracks in it in a couple of areas
where apparently the deterioration underneath is continuing,
but otherwise the driveway has held up very well."
testified that he anticipated having to seal-coat the
driveway. Houser explained that he had paid to seal-coat the
original asphalt driveway per American Paving's
instructions. Over American Paving's hearsay, relevance,
and discovery objections, Houser testified that he had
recently entered into a contract to seal the driveway at a
cost of $3, 250.
submitted evidence of the cost of Dreessen's inspection,
testing, and analysis, which was $1, 705. He also submitted
evidence of the cost of Dreessen's time testifying as an
expert [299 Neb. 7] witness, $2, 886.10. Houser entered into
evidence the costs of deposing an American Paving employee
and Hall, $371.50 and $421.25, respectively, in preparation
for trial. Houser sought court costs in the amount of $69.
Houser asked for a total of $40, 551.94 in damages. The court
ordered the parties to submit briefs after trial. American
Paving did not submit a brief.
Verdict, Attorney Fees, and Sanctions
Paving moved to disqualify the trial judge and for a mistrial
on the ground that the judge had allegedly engaged in
activities on her cell phone during trial. The court
overruled American Paving's motion.
Paving later filed a second motion to disqualify and for a
mistrial, asserting the same conduct of the trial judge
engaging with her cell phone during trial. But the second
motion further alleged that Hall had filed a complaint with
the Nebraska Commission on Judicial Qualifications, which
complaint was under investigation. The court overruled the
17, 2015, the county court entered judgment in favor of
Houser in the amount of $40, 551.94. In its order, the court
set a hearing for Houser's oral motion for attorney fees.
After the judgment, Houser submitted an affidavit supporting
costs and fees incurred with respect to the discovery delays,
motion for sanctions, and the motions to disqualify. On
September 22, the court ordered $1, 514 in sanctions and
attorney fees to be paid to Houser. On October 22, the court
overruled American Paving's motion for new trial.
Appeal to District Court American Paving filed a notice of
appeal to the district court on November 10,
2015. On that same date, it filed its ...