                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                            SAMPSON CONSTRUCTION CO. V. MARTIN


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


           SAMPSON CONSTRUCTION CO., INC, A NEBRASKA CORPORATION, APPELLEE,
                                               V.

     MITCHELL M. MARTIN, DOING BUSINESS AS AQUA PLUMBING & HEATING, DEFENDANT
        AND THIRD-PARTY PLAINTIFF, APPELLANT, AND D.J. WELDING AND MFG., INC.,
        A NEBRASKA CORPORATION, AND UNITED PLUMBING AND MECHANICAL, INC.,
            A NEBRASKA CORPORATION, THIRD-PARTY DEFENDANTS, APPELLEES.



                              Filed June 19, 2018.   No. A-17-656.


         Appeal from the District Court for Saline County: RICKY A. SCHREINER, Judge. Affirmed
in part, and in part reversed.

       Jonathan M. Frazer, P.C., L.L.O., for appellant.
       Matthew G. Graff for appellee Sampson Construction Co., Inc.
      Christina L. Usher, of Mattson Ricketts Law Firm, for appellee United Plumbing and
Mechanical, Inc.


       PIRTLE, RIEDMANN, and BISHOP, Judges.
       RIEDMANN, Judge.
                                       INTRODUCTION
        Mitchell M. Martin, doing business as Aqua Plumbing & Heating (Aqua Plumbing),
appeals the orders of the district court for Saline County which entered summary judgment in favor
of D.J. Welding and Mfg., Inc. (D.J. Welding); United Plumbing and Mechanical, Inc. (United
Plumbing); and Sampson Construction Co., Inc. (Sampson). Finding no genuine issue of material




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fact, we affirm the orders granting summary judgment, but reverse the award of attorney fees to
United Plumbing.
                                         BACKGROUND
        Sampson is a commercial construction company specializing in general contracting and
construction management. It entered into a contract on August 18, 2009, to build an addition to a
medical center in Crete, Nebraska. In order to complete the project, it contracted with Aqua
Plumbing to perform some of the work, including the welding of certain water pipes. In February
2010, Aqua Plumbing orally retained the services of two different subcontractors to perform the
welding work. The owner’s architect subsequently rejected all of the welds because they failed to
conform to the contract specifications. Sampson notified Aqua Plumbing of the deficient work
during February and March 2010, but Aqua Plumbing never corrected it. Sampson and Aqua
Plumbing agree that their written agreement was terminated on May 7.
        Sampson subsequently replaced the allegedly defective work through other contractors. It
ultimately filed suit against Aqua Plumbing on March 4, 2014, alleging breach of the written
contract. It alleged not only faulty workmanship, but that Aqua Plumbing failed to cure its material
breach of the contract despite having been given notice and an opportunity to do so. It sought
damages in the amount of $74,706, claiming that the amount was determined on or about April 30,
2011. Aqua Plumbing was served with a copy of the complaint on August 20, 2014. It responded
to the complaint with an answer, counterclaim, and third-party complaint against D.J. Welding and
United Plumbing.
        In its counterclaim, Aqua Plumbing claimed that Sampson owed it $51,264 for work
performed. In its third-party complaint, it alleged that it retained D.J. Welding and United
Plumbing to perform the welding work that it had contracted to complete for Sampson and that
those parties failed to perform the work in a good and workmanlike manner. The third-party
complaint was filed on September 16, 2014.
        D.J. Welding filed a motion for summary judgment on January 7, 2015, alleging that the
action was barred by the statute of limitations. The evidence adduced at the hearing on the motion
for summary judgment revealed that Aqua Plumbing orally retained D.J. Welding on or about
February 26, 2010, to complete pipe welding work at the medical center because United Plumbing
had previously been retained, but was unable to complete the work. D.J. Welding completed the
work before March 1 and invoiced Aqua Plumbing for the job on March 3. Four days later,
Sampson notified Aqua Plumbing that it was terminating the contract due to allegedly defective
welding. The exact amount of damages was unknown until April 2011.
        The district court determined that Aqua Plumbing’s claim against D.J. Welding was barred
by the 4-year statute of limitations governing oral contracts. Consequently, it entered summary
judgment in favor of D.J. Welding on the third-party complaint.
        A month later, United Plumbing filed a motion for summary judgment based on the running
of the statute of limitations. It also sought attorney fees for Aqua Plumbing’s failure to dismiss its
claim against it once the court entered judgment on D.J. Welding’s summary judgment motion.
        At the hearing on the motion for summary judgment, United Plumbing adduced evidence
that Aqua Plumbing contacted United Plumbing on or about February 25, 2010, to perform pipe



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welding work at the Crete medical center. United Plumbing performed the requested work under
an oral agreement on February 25 and 26, but could not complete the project because of other work
commitments. United Plumbing billed Aqua Plumbing for the work performed on March 1.
         The court determined that Aqua Plumbing was notified on May 7, 2010, that Sampson was
terminating the contract due to allegedly defective welding. Because Aqua Plumbing did not serve
a third-party complaint upon United Plumbing until September 25, 2014, the court concluded its
action was barred by the 4-year statute of limitations governing oral contracts. The district court
also imposed attorney fees in the amount of $1,000 against Aqua Plumbing for its failure to dismiss
its third-party claim against United Plumbing following the order granting D.J. Welding’s motion
for summary judgment.
         Following the dismissal of the third-party complaints, Sampson filed a motion for summary
judgment claiming that no genuine issue of material fact existed and that it was entitled to judgment
as a matter of law. At the hearing, Sampson argued that the issue before the court was not whether
the welds were defective, but whether Aqua Plumbing failed to comply with the contract and
dispute resolution terms once it was notified that the welds were allegedly defective. The evidence
offered to support this motion is set forth more fully below. The court granted summary judgment
in a subsequent written order, without setting forth any specific findings.
         Aqua Plumbing appeals the court’s granting of the three summary judgment motions and
the award of attorney fees.
                                   ASSIGNMENTS OF ERROR
       Aqua Plumbing assigns that the district court erred in granting the motions for summary
judgment filed by D.J. Welding, United Plumbing, and Sampson and in awarding attorney fees in
favor of United Plumbing.
                                     STANDARD OF REVIEW
        An appellate court will affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any material facts 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. Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016).
        The point at which a statute of limitations begins to run must be determined from the facts
of each case, and the decision of the district court on the issue of the statute of limitations normally
will not be set aside by an appellate court unless clearly wrong. Irving F. Jensen Co. v. State, 272
Neb. 162, 719 N.W.2d 716 (2006).
        On appeal, a trial court’s decision awarding or denying attorney fees will be upheld absent
an abuse of discretion. Cisneros v. Graham, 294 Neb. 83, 881 N.W.2d 878 (2016).
                                             ANALYSIS
Summary Judgment on Basis of Statute of Limitations.
        The district court granted summary judgment in favor of both D.J. Welding and United
Plumbing on the basis of the statute of limitations. Because the analysis as to each party is virtually
identical, we address them together.



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         The evidence from the summary judgment hearings establish that Aqua Plumbing entered
into oral contracts with both D.J. Welding and United Plumbing in February 2010. Both
subcontractors completed their work by March 1. Sampson terminated its contract with Aqua
Plumbing on May 10, due, in part, to defective welds. Sampson advised Aqua Plumbing of the
amount of its damages on April 30, 2011, and filed suit against it in March 2014. Aqua Plumbing
filed its third-party complaints against D.J. Welding and United Plumbing in September 2014.
         The statute of limitation on an oral contract is 4 years. Neb. Rev. Stat. § 25-206 (Reissue
2016). A cause of action in contract accrues at the time of the breach or the failure to do the thing
agreed to. Irving F. Jensen Co. v. State, supra. None of the parties contend that this action is
governed by any other statute of limitations; therefore, we analyze the issue applying § 25-206.
         United Plumbing and D.J. Welding both completed their work prior to March 1, 2010;
therefore, any breach of the oral contracts into which they had entered occurred no later than that
date. However, construing the evidence in the light most favorable to Aqua Plumbing, the district
court determined that the statute of limitations did not begin to run until May 10, the date on which
Aqua Plumbing was notified of the defective welds and that its contract was terminated. Aqua
Plumbing did not file its third-party action until September 2014, well outside the 4-year period.
         Aqua Plumbing argues that until it knew whether Sampson’s claim would exceed the
unpaid contract amount of $51,264, “it would have been impossible for [Aqua Plumbing] to initiate
suit” against D.J. Welding or United Plumbing. Brief for appellant at 7 and 10. It claims that the
statute of limitations should be tolled until April 30, 2011, the date on which Sampson gave notice
of the extent of damages it was claiming against Aqua Plumbing. Id.
         Aqua Plumbing’s argument is contrary to established Nebraska law. The statute of
limitations begins to run when the injured party has the right to institute and maintain a lawsuit.
Cavanaugh v. City of Omaha, 254 Neb. 897, 580 N.W.2d 541 (1998). This is true even though the
plaintiff may be ignorant of the existence of the cause of action. Id. And it remains true even though
the nature and extent of damages may not be known. Irving F. Jensen Co. v. State, 272 Neb. 162,
719 N.W.2d 716 (2006).
         In Cavanaugh v. City of Omaha, supra, the Nebraska Supreme Court affirmed that it
consistently uses the “‘occurrence rule,’ measuring the statute of limitations from the time of the
breach in contract cases and from the time of the act or omission in tort cases.” Id. at 901, 580
N.W.2d at 545. Applying that approach, the court held that an employee’s lack of knowledge as
to whether the City’s breach of a collective bargaining agreement would have an adverse effect on
his efforts to be promoted did not preclude the statute of limitations from commencing on the day
of the City’s breach.
         Likewise, in the present case, Aqua Plumbing’s lack of knowledge of whether Sampson’s
damages would exceed the amount it allegedly owed Aqua Plumbing on the contract did not
prevent the statute of limitations from commencing on the date of the breach, or as the district
court determined, on the date Aqua Plumbing was advised its contract was terminated. Once
Samson terminated Aqua Plumbing’s contract on the basis of faulty welding, Aqua Plumbing had
notice of a potential claim against its subcontractors, D.J. Welding and United Plumbing.
Consequently, the statute of limitations on a breach of contract action had expired by the time the




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third-party complaints were filed and the district court properly granted summary judgment in
favor of D.J. Welding and United Plumbing.
Award of Attorney Fees.
        In addition to summary judgment, United Plumbing sought an award of attorney fees
pursuant to Neb. Rev. Stat. § 25-824 (Reissue 2016) on the basis that Aqua Plumbing’s failure to
dismiss its third-party complaint against United Plumbing was done in bad faith. The district court
agreed that once it granted summary judgment in favor of D.J. Welding, the third-party action
against United Plumbing was frivolous. Consequently, it awarded attorney fees to United
Plumbing for having to prosecute its summary judgment motion. Aqua Plumbing asserts on appeal
that the district court abused its discretion in granting attorney fees because had it voluntarily
dismissed its claim against United Plumbing as requested, it would have foregone any chance of a
successful appeal against United Plumbing. We agree.
        Attorney fees may be assessed against a party whom the court determines is responsible
for conduct during the course of litigation which is vexatious and unfounded to the extent it
constitutes bad faith toward the other party to the litigation. Stratman v. Hagen, 221 Neb. 157, 376
N.W.2d 3 (1985). But it cannot be said that a party acts in bad faith by failing to dismiss a claim
on an issue that it intends to appeal. Had Aqua Plumbing voluntarily dismissed its claim against
United Plumbing and was ultimately successful in its appeal of the judgment in favor of D.J.
Welding, it would have lost its claim against United Plumbing because it would no longer be a
party to the action. Because Aqua Plumbing’s refusal to voluntarily dismiss its third-party
complaint against United Plumbing was neither vexatious nor unfounded, the district court abused
its discretion in awarding attorney fees. We therefore reverse that portion of the order awarding
attorney fees to United Plumbing.
Summary Judgment in Favor of Sampson.
         Aqua Plumbing argues that the district court erred in granting summary judgment in favor
of Sampson because there were multiple genuine issues of material fact. Brief for appellant at 13.
It focuses primarily on the issue of whether the welds were defective; however, the existence of
disputed facts do not necessarily preclude summary judgment if those facts are not material to the
matters at issue. Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777, 826 N.W.2d 225 (2012).
         Although Sampson’s complaint sought recovery on the basis of both defective work and
failure to cure a material breach after notice and a reasonable opportunity to do so, the focus of its
motion for summary judgment was on the latter. At the hearing on the summary judgment motion,
Sampson offered affidavits with attached contractual provisions governing the parties’
responsibilities if a dispute as to the quality of the work arose. According to Sampson, because
Aqua Plumbing did not comply with the requests for an action plan after being notified that its
work was defective, it breached the contract, regardless of whether the welds were defective. Aqua
Plumbing argued that Sampson was first required to show that the rejection of the work was
reasonable.
         The district court entered judgment in favor of Sampson, stating as its only reason that it
found “no material issue of fact regarding [Sampson’s] claim of breach of contract.” It did not set




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forth any facts supporting its decision, nor did it include any conclusions of law. Following a
timely motion to alter or amend, the court entered an amended order, awarding costs and
prejudgment and postjudgment interest.
        The general conditions for the prime contract required continued performance during the
pendency of a claim. Section 4.3.3 states: “Continuing Contract Performance. Pending final
resolution of a Claim except as otherwise agreed in writing or as provided [in this contract], the
Contractor shall proceed diligently with performance of the Contract and the Owner shall continue
to make payments in accordance with the Contract Documents.” Likewise, the subcontract
between Sampson and Aqua Plumbing required that the “Subcontractor shall proceed diligently
with performance of all work, including work in dispute and in accordance with the directions of
the Contractor, pending resolution of any Dispute.” The subcontract obligated Aqua Plumbing to
be bound to Sampson to the same extent that Sampson was bound to the owner by the terms of the
prime contract and that it would not take, or would suspend, any actions, including litigation, as to
any dispute. The subcontract also allowed Sampson to terminate the contract for default based
upon the Aqua Plumbing’s failure to prosecute the work in a timely manner and with such diligence
as Sampson believed was necessary to timely complete the project.
        Consistent with the terms of the prime contract, Sampson notified Aqua Plumbing of
deficiencies discovered by the owner’s architect on February 24, 2010. It gave Aqua Plumbing
until March 5 to correct the problems. On March 3, Sampson again contacted Aqua Plumbing to
advise it that the quality of its welded pipe connections was suspect and that a testing company
was being retained. Aqua Plumbing responded that it would “cut out the bad welds and replace
them.” On March 11, Sampson advised Aqua Plumbing that the testing revealed five of the six
tested welds were defective and requested that Aqua Plumbing “provide a written plan of action”
by March 15.
        The evidence revealed that there was no accepted plan of action by March 15, 2010.
Consequently, Sampson advised Aqua Plumbing that a company had been retained to replace the
welded pipes. Sampson again contacted Aqua Plumbing on April 13 regarding uncompleted items
and requested an action plan by April 16. Having received no response, Sampson inquired on April
16 whether Aqua Plumbing’s “silence mean[s] you are requesting more time or are you choosing
not to respond?” On May 7, Sampson terminated its subcontract with Aqua Plumbing.
        Aqua Plumbing submitted an affidavit in opposition to Sampson’s motion for summary
judgment. It contested the appropriateness of the rejection of its work and the method by which it
was determined defective. It did not contest, however, that it failed to submit an accepted plan of
action or timely respond to Sampson’s inquiries.
        Aqua Plumbing raises fact questions as to the quality of the work performed on its behalf,
but it does not raise a fact issue as to its failure to provide an action plan as requested and to
perform the corrected work. In fact, Aqua Plumbing does not address this issue on appeal. As the
Nebraska Supreme Court articulated in Professional Mgmt. Midwest v. Lund Co., 284 Neb. 777,
792, 826 N.W.2d 225, 236 (2012), “not all issues of fact preclude summary judgment, but only
those that are material. In the summary judgment context, a fact is material only if it would affect
the outcome of the case.”




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        Under the terms of the contract documents, Sampson was allowed to terminate the contract
for default if Aqua Plumbing failed to prosecute the work in a timely manner. The contract further
set forth the manner in which replacement of allegedly defective work was to be corrected. There
is no question that Aqua Plumbing failed to abide by these requirements, regardless of whether its
work was, in fact, defective. Because no genuine issue of material fact exists, the district court
properly granted summary judgment in favor of Sampson.
        Aqua Plumbing states in its brief that since “summary judgment was granted with no
findings of fact on [the issue of defective workmanship], it was granted improperly, and this matter
should be remanded back for trial.” Brief of Appellant at 13. We disagree.
        Neb. Rev. Stat. § 25-1127 (Reissue 2016) provides:
        Upon the trial of questions of fact by the court, it shall not be necessary for the court to
        state its findings, except, generally, for the plaintiff or defendant, unless one of the parties
        request it, with a view of excepting to the decision of the court upon the questions of law
        involved in the trial; in which case the court shall state in writing the conclusions of fact
        found separately from the conclusions of law.

         Our record includes no request by Aqua Plumbing for specific findings. Furthermore, Aqua
Plumbing does not explain how it was prejudiced by the absence of any specific findings by the
district court. Therefore this argument is without merit. See Wells Fargo Ag Credit Corp. v.
Batterman, 229 Neb. 15, 424 N.W.2d 870 (1988) (refusing to address appellant’s claim that
summary judgment was improperly granted due to absence of specific findings).
                                           CONCLUSION
       Finding no genuine issue of material fact, we affirm the district court’s orders granting
summary judgment in favor of D.J. Welding, United Plumbing, and Sampson, but we reverse the
award of attorney fees to United Plumbing.
                                                    AFFIRMED IN PART, AND IN PART REVERSED.




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