                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                     DAHLGREN V. BROOKS


  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).


                    GREGG DAHLGREN AND KRISTEN DAHLGREN, APPELLEES,
                                               V.

       DENNIS BROOKS, DOING BUSINESS AS COBRA POOL AND SUPPLY ET AL., APPELLANT.


                          Filed November 28, 2017.     No. A-16-1215.


       Appeal from the District Court for Buffalo County: JOHN H. MARSH, Judge. Affirmed.
       Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom, & Stehlik, P.C., L.L.O., for
appellant.
       Kane M. Ramsey, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellees.


       MOORE, Chief Judge, and INBODY and BISHOP, Judges.
       MOORE, Chief Judge.
                                       INTRODUCTION
        Gregg Dahlgren and Kristen Dahlgren filed a complaint against Dennis Brooks for breach
of contract and negligence stemming from the construction of a residential swimming pool and
spa. Brooks filed a counterclaim against the Dahlgrens, alleging breach of contract or, in the
alternative, unjust enrichment. The district court for Buffalo County found for the Dahlgrens,
awarding them $40,770.02 in damages. On appeal, Brooks alleges the district court erred in
entering judgment against him and for the Dahlgrens and in failing to entering judgment in Brooks’
favor on his counterclaim. He also alleges the court erred in its calculation of damages. For the
reasons set forth below, we affirm.




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                                         BACKGROUND
        In the spring of 2014, the Dahlgrens made arrangements to install an underground pool and
spa in their backyard to enjoy that summer. Because Brooks recently installed a pool in their
neighborhood, the Dahlgrens contacted him about the costs, feasibility, and completion date of the
project. Brooks met with the Dahlgrens at their home in April 2014 at which time they indicated
their desire for a pool and spa and where they wanted it located in their backyard. Dahlgrens
wanted the pool and spa to be installed in time to be used for the summer of 2014 and discussed
the feasibility with Brooks. After Brooks inspected the Dahlgrens’ property, the Dahlgrens
contracted with Brooks to install a pool and a spa in their backyard.
        The contract set forth the cost of the pool and spa, together with various other items such
as heat pump, lights, power cover, and spa heater. The “complete installation” included
“[e]xcavation and installation of the pool [and spa], plumbing, pump, filter, and manual cleaning
equipment. Prices are based on a level lot, easy access, and pre-site approval.” The contract price
was $79,309. The contract expressly excluded costs associated with “decking & cement, stone,
brick, etc.; landscaping; crane; sewer connection; permits, taxes, & fees; and electrical hookups.”
Brooks required the Dahlgrens to pay the contract in three installments. The Dahlgrens made three
payments to Brooks: (1) $28,000 on April 24, 2014, (2) $26,436.33 on May 19, 2014, and (3)
$26,436 on June 9, 2014. In total, the Dahlgrens paid Brooks $80,872.33, which was $1,566.33
above the contracted amount.
        In early May of 2014, Brooks began construction. When asked “Can you remind me when
Mr. Brooks identified the pool and spa would be completed,” Gregg replied “We were anticipating
early June the pool was to be completed.” During Brooks’ initial construction, he questioned the
Dahlgrens about the “elevation” of their pool. Gregg and Kristen asked Brooks to refer his
questions about the project to Kristen’s father, Gene McElhinney, a general contractor with over
forty-two years of experience in construction. When Brooks initially set the pool’s fiberglass shell
in the ground, its edge sat above the ground at about knee level, which Gregg found unacceptable.
Gregg testified that he directed Brooks to lower the shell further into the ground. Brooks testified
he lowered the pool at McElhinney’s instruction only after McElhinney agreed that the Dahlgrens
would pay the additional costs. McElhinney denied he discussed additional costs with Brooks.
        By the end of May--when the Dahlgrens and Brooks had initially planned the project to be
nearing completion--Brooks and his employees had set the pool in the ground, but they had not
yet stabilized and backfilled dirt around its walls. Prior to completing this work, Brooks left the
country for vacation. During his absence, a heavy rain fell. Because Brooks’ crew did not stabilize
the pool, the rain caused the fiberglass shell to float more than six feet above the hole in which it
sat. The standing water in the hole required Brooks to hire a crane to lift the fiberglass shell and
allow both the hole and the shell to dry. At some point after the free-floating shell required Brooks’
to hire a crane, Gregg asked Brooks to rotate the fiberglass shell so that the pool would face the
opposite direction. Gregg testified that Brooks agreed to rotate the fiberglass shell, adding the
change in orientation would make the project’s plumbing easier to complete and that the additional
digging would not be a “big deal.” According to Gregg, Brooks did not indicate that there would
be additional costs associated with rotating the pool. However, Brooks testified that he rotated the




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pool at McElhinney’s instruction only after he agreed to the additional costs. McElhinney could
not recall such a discussion. After another rain fell just over two weeks later, the Dahlgrens again
found a free-floating fiberglass shell in the pool hole. The saturated shell again required Brooks to
hire a crane to dry the shell and hole.
         By the end of June 2014, Brooks had installed the fiberglass pool shell, spa vessel, and
most of the plumbing. However, the project was still not complete. Brooks did no additional work
on the project for the remainder of the summer, other than collecting his tools and retrieving a pool
filter. On July 21, 2014, Brooks sent the Dahlgrens an invoice for his services in rotating and
lowering the pool. A little over a week later, Gregg called Brooks to ask if he planned to finish the
pool and spa. Brooks replied by demanding payment from Gregg on the July invoice. According
to Brooks, Gregg notified him that he did not believe he owed Brooks for the additional work but
that if Brooks would get the pool done, Gregg would think about paying the invoice. Brooks
informed Gregg that he would not do further work until the Dahlgrens paid the invoice. The
Dahlgrens did not pay the additional invoice, and Brooks did not complete the project and failed
to deliver the pool cover for which he billed the Dahlgrens.
         At the time that Brooks’ work on the pool and spa installation ceased, the Dahlgrens could
not use the pool and the spa’s jets did not work properly. The Dahlgrens hired Artisan Pools to
complete the pool installation. Artisan charged the Dahlgrens $2,848.56 to purchase and install
various items necessary for the operation of the pool. In addition, Artisan Pools charged Brooks
$3,000 for a pool cover. Artisan did not alter any of Brooks’ construction and plumbing, and it did
not address the spa jets’ deficiencies.
         The Dahlgrens hired Douglas Deterding, a pool and spa installation expert, to assess the
situation with the spa. Deterding identified that there was not enough flow in the system to allow
the jets to work properly. He testified that the number of right angles Brooks constructed in the
spa’s plumbing would not allow an effective spa circulation system. Deterding additionally found
that the piping was incompatible with the pump model for the spa vessel Brooks installed. He
testified the only way to fix the plumbing and piping for the spa would be to dig out the shell and
to install a proper pump. Deterding indicated that depending on what he found when the Dahlgrens
removed the existing spa vessel, the “worst-case scenario” would require complete installation of
a new spa. Deterding estimated the cost for completing these repairs was $43,338.02.
         The Dahlgrens filed a complaint against Brooks, alleging breach of contract, breach of
warranty of fitness for a particular purpose, breach of implied warranty of merchantability, and
negligence. In Brooks’ Amended Counterclaim, he asked the district court to award him
$12,690.63 in damages for breach of contract due to the unpaid invoice dated July 21, 2014. In the
alternative, he asked the court for the same amount as restitution for unjust enrichment. Following
a trial to the bench, the district court entered a judgment on September 16, 2016, finding Brooks
breached his contract with the Dahlgrens, awarding them $11,335.01 in damages, and dismissing
Brooks’ counterclaim. Upon the Dahlgrens’ motion to reconsider, the court entered an order
awarding the Dahlgrens $40,770.02 in damages. Brooks filed this appeal.




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                                   ASSIGNMENTS OF ERROR
        Brooks assigns, restated, the district court for Buffalo County erred in (1) finding Brooks
breached his contract with the Dahlgrens, (2) dismissing Brooks counterclaim for breach of
contract or, in the alternative, unjust enrichment, and (3) awarding the Dahlgrens’ damages for
their costs in repairing both the pool and the spa.
                                    STANDARD OF REVIEW
        A suit for damages arising from breach of a contract presents an action at law. Stauffer v.
Benson, 288 Neb. 683, 850 N.W.2d 759 (2014). So too, a quasi-contract claim for restitution is an
action at law. Kalkowski v. Neb. Nat’l Trails Museum Found., Inc., 290 Neb. 798, 862 N.W.2d
294 (2015); City of Scotts Bluff v. Waste Connections of Neb., Inc., 282 Neb. 848, 809 N.W.2d 725
(2011). The judgment and factual findings of the trial court in an action at law tried to the court
without a jury have the effect of a verdict and will not be set aside unless clearly wrong. Id. In
reviewing an action at law, an appellate court reviews the evidence in the light most favorable to
the prevailing party. Id. However, regarding questions of law, an appellate court is obligated to
reach a conclusion independent of determinations reached by the lower courts. Id.
        Amount of damages to be awarded is a determination solely for the fact finder. Funk v.
Lincoln-Lancaster County Crime Stoppers, Inc. 294 Neb. 715, 885 N.W.2d 1 (2016); Neb.
Nutrients, Inc. v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001). An appellate court will not
disturb the factfinder’s damage award if the evidence supports the damage award and it bears a
reasonable relationship to the elements of the damages proved. Neb. Nutrients, supra.
                                            ANALYSIS
Breach of Contract.
        Brooks argues that the district court erred in finding Brooks breached his contract with the
Dahlgrens. The Dahlgrens and Brooks agree that they formed a contract for Brooks’ construction
and installation of a pool and spa at the Dahlgrens’ residence. Although the written contract did
not include a specific term for the length of time the installation would require, it did include terms
for price, certain enumerated services, and line items of equipment the contract authorized Brooks
to purchase. Brooks asserts that because his contract with the Dahlgrens contained no time
limitations, failing to complete the pool by late July of 2014 did not result in his breach of the
contract. Instead, he claims the Dahlgrens terminated the contract by refusing to pay him. He
further claims the court’s finding as to breach of contract only related to his construction of the
pool and not the spa.
        Contract actions that arise from the breach of a duty an agreement imposes on a defendant
protect a plaintiff’s interest in or right to performance of that defendant’s promises. Thurston v.
Nelson, 21 Neb. App. 740, 842 N.W.2d 631 (2014). Under Nebraska law, with each contract comes
an accompanying duty to perform with care, skill, reasonable expediency, and faithfulness the
thing agreed to be done. Id.; Lesiak v. Cent. Ag Coop., Inc., 283 Neb. 103, 808 N.W.2d 67 (2012);
Schwarz v. Platte Valley Exterminating, Inc., 258 Neb. 841, 606 N.W.2d 85 (2000). From our
review of the record in a light most favorable to the Dahlgrens, Brooks breached this contractual




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duty. Although the Dahlgrens fully paid the amount of the contract, Brooks left the Dahlgrens’
pool and spa unfinished in June. When he left the country for a vacation in late May, Brooks made
no efforts to protect his work from the elements which could foreseeably damage the construction
progress. During his absence, a significant rainfall destroyed much of his progress with the pool’s
installation. In large part, his actions caused the additional costs with the Dahlgrens’ pool for which
he later billed them. With regard to the spa, Deterding’s testimony at trial revealed that Brooks’
installation of the spa’s plumbing was incompatible with the vessel he installed. He concluded the
spa would not function appropriately absent substantial repairs.
        Brooks further breached his duty of care by failing to complete the contract with reasonable
expediency. Although the contract contained no term regarding a completion date, Brooks’
performance was hardly “reasonably expedient.” When the Dahlgrens discussed the pool and spa
construction with Brooks in April of 2014, they anticipated Brooks would complete the installation
by June of the same year. By the middle of July, after several delays largely caused by Brooks, he
had not finished constructing the pool and spa. He never did. The district court’s factual findings
were not clearly wrong. After viewing the evidence in the light most favorable to the Dahlgrens,
we find no error in the court’s determination that Brooks breached the contract.
Defendant’s Counterclaim for Breach of Contract
and Unjust Enrichment.
         Brooks claims the district court erred in dismissing his counterclaim for breach of contract
or, in the alternative, for restitution in quasi-contract. He asserts that the Dahlgrens, through their
agent, McElhinney, agreed to lower the pool seven inches into the ground and to rotate the position
of their pool for an additional fee. McElhinney denied that Brooks advised that lowering the pool
would result in higher cost. McElhinney could not recall whether he had the discussion with
Brooks about changing the direction of the pool or whether the Dahlgrens discussed it with Brooks.
McElhinney did not recall whether Brooks told him the rotation would result in higher costs. The
district court found Brooks failed to establish that he reasonably relied on McElhinney’s authority
to agree to additional costs. But we conclude we need not determine whether McElhinney had
authority to bind the Dahlgrens to additional costs or whether Brooks reasonably relied upon his
conversations with McElhinney. Viewing the evidence in a light most favorable to the Dahlgrens,
we find Brooks has failed to establish the existence of an additional agreement to rotate and lower
the Dahlgrens’ pool for an additional fee.
         To create a contract, there must be both an offer and an acceptance. Sticht Ranch, LLC v.
Double B.J. Farms, Inc., 21 Neb. App. 328, 837 N.W.2d 870 (2013). There must also be a meeting
of the minds or a binding mutual understanding between the parties to the contract. Id. See also
Ryder v. Ryder, 290 Neb. 648, 861 N.W.2d 449 (2015). The existence of a meeting of the parties’
minds as to the essential terms and conditions of the proposed contract is a fundamental and
indispensable basis of any enforceable agreement. Sticht Ranch, supra. A binding mutual
understanding or meeting of the minds sufficient to establish a contract requires no precise
formality or express utterance from the parties about the details of the proposed agreement. Id.
And it may be implied from the parties’ conduct and the surrounding circumstances. Id.




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        The record confirms that Brooks agreed to lower the pool when it was several inches above
ground and rotate the pool after the heavy rains required Brooks to raise the pool with a crane.
However, Brooks failed to show that this work was beyond the terms of the initial contract or that
there was an agreement for additional compensation for this work beyond the contract price. The
written contract between the parties did not expressly discuss the depth of the pool or its location.
Gregg testified that Brooks told him installing the pool to face the other direction might ultimately
be easier for him. According to Gregg, Brooks did not indicate that rotating the pool would require
additional costs. Although Brooks insists he discussed additional costs with McElhinney,
McElhinney has no recollection of that conversation. Brooks did not offer into evidence the invoice
that he gave the Dahlgrens for additional work. In fact, he did not offer any evidence of the
additional costs he alleges to have incurred from lowering and rotating the pool. Thus, we find
Brooks failed to establish a meeting of the minds between the parties necessary for the formation
of a contract for additional work beyond the written contract. Viewing the evidence in a light most
favorable to the Dahlgrens, we cannot say that the trial court was clearly wrong finding that Brooks
failed to prove his counterclaim.
        Brooks’ claim in quasi-contract for restitution from unjust enrichment also fails. A
quasi-contract is not a contract. City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848,
809 N.W.2d 725 (2011). Quasi-contract claims are restitution claims to prevent unjust enrichment.
Id. Quasi-contractual obligations do not arise from agreement. Id. The law imposes them when
justice and equity require the defendant to disgorge a benefit that he or she has unjustifiably
obtained at the plaintiff’s expense. Id. The defendant’s liability arises under the law of restitution,
not contract. Id.
        Here, the evidence is at best unclear as to whether or not Brooks provided a benefit to
Dahlgrens beyond the terms of the contract. The written contract with the Dahlgrens contains no
provisions regarding the depth or location of the pool. Although the contract expressly excluded
“cranes,” it was Brooks’ failure to secure the pool prior to the heavy rains in June that required a
crane to raise the pool shell to correct the resulting problems. Brooks’ work did not unjustly enrich
the Dahlgrens. Rather, Brooks’ work was necessary to complete installation of the pool under the
contract. Further, Brooks failed to prove the value of any benefit he conferred to the Dahlgrens
beyond the terms of the written contract. Viewing the evidence in a light most favorable to the
Dahlgrens, we cannot conclude the trial court was clearly wrong in dismissing Brooks’
counterclaim for unjust enrichment.
Damages.
        Brooks contends the district court erred in awarding damages for the installation of the
pool and spa. Brooks argues the court’s order confines its discussion of the breach of contract to
Brooks leaving the Dahlgrens’ pool unfinished when he left for vacation. He asserts the order is
silent as to his installation of the spa. We disagree. The court did not confine its breach of contract
findings to the pool. The court specifically accepted Deterding’s testimony based upon his
experience and consistency with the photographic evidence. Deterding testified only about the
deficiencies in the spa plumbing that Brooks installed and the remedial costs.




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        The court determined the damages included Deterding’s estimate, less the cost of a new
spa and corresponding freight, which it determined was based upon a “worst-case” assumption
that the Dahlgrens did not establish with reasonable certainty. Therefore, the court subtracted
$9,180 from Deterding’s total estimate of $40,502.82, prior to taxes, resulting a sum of $31,322.82.
The court adjusted the taxes on the estimate to $2,036. The court included the Artisan bill relating
to the pool completion in the sum of $2,848.56. Altogether, the court found the Dahlgrens’
damages totaled to $36,207.36. However, the court mistakenly subtracted an underpayment of
$24,872.32 from the damages amount, awarding the Dahlgrens $11,335.02 for Brooks’ breach of
contract. Following Dahlgrens’ motion for reconsideration, the court added $1,562.66 (the amount
of the Dahlgrens’ contract overpayment), and $3,000 for a replacement pool cover to the original
$36,207.36 damage calculation, for total damages of $40,770.02. The evidence supports the
court’s award of damages, and it bears a reasonable relationship to the elements of damages
proved.
                                         CONCLUSION
         The district court was not clearly wrong in its finding that Brooks breached his contract
with the Dahlgrens and that Brooks failed to prove his counterclaim for breach of contract or, in
the alternative, unjust enrichment. Lastly, the evidence adduced at trial supported the damages the
district court awarded. Therefore, we affirm.
                                                                                         AFFIRMED.




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