Opinion
No. A-10-1211.
12-06-2011
ASSOCIATED ENGINEERING, INC., APPELLANT, v. ARBOR HEIGHTS, LLC, ET AL., APPELLEES.
Patrick McCormick and Jeremy Jorgenson for appellant. No appearance for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
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).
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Patrick McCormick and Jeremy Jorgenson for appellant.
No appearance for appellees.
IRWIN, MOORE, and CASSEL, Judges.
IRWIN, Judge.
I. INTRODUCTION
Associated Engineering, Inc. (Associated), appeals an order of the district court for Lancaster County, Nebraska, entering judgment in favor of Arbor Heights, LLC, et al. (Arbor), upon a jury verdict in this breach of contract action. On appeal, Associated challenges the district court's failure to grant a directed verdict and the court's inclusion of workmanlike manner in the jury instructions. We find no error and affirm.
II. BACKGROUND
In 2004, Associated and Arbor entered into a contract for Associated to provide engineering services for a development being built by Arbor in Hickman, Nebraska. In April 2010, Associated brought a breach of contract action against Arbor, alleging that Associated had performed its obligations under the contract and that Arbor had failed to make payment for all completed work.
Arbor filed a responsive pleading and alleged counterclaims based on breach of contract, ordinary negligence, and professional negligence. In the counterclaims, Arbor alleged that Associated had failed to satisfy its obligations under the contract and alleged that Associated had committed design errors, that resurveying had to be done to address staking errors, that a sewer and manhole had been built too shallow, that drawings had to be checked by a separate surveyor, that erosion control measures were not completed and had to be replaced, that Associated had overbilled, and that Associated had failed to supervise the project and ensure construction was completed according to project specifications.
At the conclusion of the trial, Associated moved for a directed verdict on Arbor's counterclaims. Associated alleged that all of Arbor's assertions in the counterclaims were actually assertions of professional negligence and that Arbor had failed to adduce evidence concerning the appropriate standard of care for a professional engineer. Arbor asserted that there was such evidence and that, in addition, some of the assertions concerning Associated were assertions of ordinary negligence and not professional negligence, subject to the standard that Associated had failed to perform in a workmanlike manner.
The district court held that Arbor's allegations concerning design errors were assertions of professional negligence and that Arbor failed to adduce sufficient evidence of the appropriate professional standard of care. The court held, however, that other assertions, including those related to Associated's supervision of the development, were "different."
At the instruction conference, Associated objected to instructions including workmanlike manner and reasserted that Arbor's claims were all assertions of professional negligence. The court overruled these objections. The district court ultimately gave jury instructions which, among other directions, informed the jury concerning Arbor's allegations that Associated had breached the contract and failed to perform in a workmanlike manner.
The jury returned verdicts finding that Associated had met its burden of proof on the initial breach of contract claim and that Arbor had met its burden of proof on its breach of contract counterclaim. The jury awarded $10,237.98 to Associated on its claim and awarded $25,000 to Arbor on its claim. The net result was a judgment in favor of Arbor for $14,762.02. This appeal followed.
III. ASSIGNMENTS OF ERROR
Associated has assigned two errors on appeal. First, Associated asserts that the district court erred in not granting a directed verdict with respect to all of Arbor's counterclaims. Second, Associated asserts that the court erred in including workmanlike manner in the jury instructions.
IV. ANALYSIS
Although Associated has assigned two errors on appeal, both are premised on the same basic assertions that Arbor's claims against Associated were essentially all assertions of professional negligence, requiring proof of the appropriate standard of care for professional engineers. Associated asserts that the district court erred in not so finding and therefore in not granting a directed verdict on all of Arbor's claims and in instructing the jury about workmanlike manner, as the appropriate standard of care should not have been workmanlike manner, but, instead, should have been the standard applicable to professional engineers. We disagree.
To the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court. Zuco v. Tucker, 9 Neb. App. 155, 609 N.W.2d 59 (2000). We do not disagree with Associated's assertion that allegations that an exercise of skill by a professional demonstrates a lack of skill or knowledge or failure to exercise reasonable care is a matter that usually requires expert testimony. See Medley v. Davis, 247 Neb. 611, 529 N.W.2d 58 (1995). We also do not disagree with Associated's assertion that the question of whether a professional violated the standard of care for professional services must be proved by expert testimony. See Overland Constructors v. Millard School Dist., 220 Neb. 220, 369 N.W.2d 69 (1985). We conclude, however, that these assertions are not applicable to the claims actually submitted to the jury in the present case.
As noted, at the conclusion of the trial, the parties argued to the court concerning the necessity of expert testimony concerning the appropriate standard of care for professional engineers. At the conclusion of that argument, the district court indicated that it agreed that assertions of design errors by Associated as the engineer were issues concerning professional conduct and required expert testimony. Contrary to Associated's assertion that it is not apparent from the record how the court actually took those issues away from the jury, a review of the instructions given to the jury reveals that the court did remove issues of alleged design error and professional negligence from the jury.
In its answer, Arbor asserted three counterclaims: breach of contract, ordinary negligence, and professional negligence. In the jury instructions, the district court instructed the jury only that Arbor had asserted as a counterclaim that Associated had breached the contract. The court did not instruct the jury concerning the asserted counterclaims of ordinary and professional negligence.
In its answer, Arbor's assertion that Associated had breached the contract included nine particulars in which Arbor asserted that Associated had breached the contract. A number of those assertions specifically referred to alleged "design errors" committed by Associated. In instructing the jury, however, the district court removed all references to alleged design errors. Instead, the district court specifically instructed the jury that Arbor claimed that Associated "breached the contract by failing to properly supervise the project and ensure that the construction was completed according to the project specifications." The court then instructed the jury that Arbor alleged a number of consequences to that failure to supervise and set forth the various assertions proffered in the answer, but without reference to allegations that Associated had committed design error.
We reject Associated's assertion that all of its actions in this case amounted to professional engineering services subject to the standard of care for professional engineers and the necessity of expert testimony. As the district court concluded, assertions that Associated, as the engineer, committed design errors were properly considered assertions of professional negligence. The court did not submit such assertions to the jury. The assertions that were submitted to the jury concerned Associated's failure to properly supervise the work being performed and the consequences of that failure of supervision. Associated has not assigned any error to the sufficiency of the evidence to support a finding that it failed to properly supervise or that damages were incurred by such failure to supervise.
As such, we find no error by the court in failing to direct a verdict on Arbor's breach of contract claim and we find no error by the court in including workmanlike manner in the jury instructions related to the alleged failures of Associated to properly supervise. We affirm.
AFFIRMED.