Opinion
8:02CV8.
September 6, 2002
MEMORANDUM AND ORDER
This matter is before the court on the motion of plaintiff Remedial Construction Services, Inc. (Remedial) for partial summary judgment, Filing No. 7. Remedial asserts that it is entitled to a summary judgment of liability against defendant General Concrete, Inc. (General Concrete) on its breach of contract claim. General Concrete has not responded to the motion.
On a motion for summary judgment, the question before the court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995). The burden of establishing that no genuine issue of material fact exists is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Thus, summary judgment can be denied notwithstanding the absence of opposing affidavits or other evidence, if the moving party has failed to meet its initial burden with respect to an issue. Cambee's Furniture, Inc. v. Doughboy Recreational Inc., 825 F.2d 167, 173 (8th Cir. 1987). Once the moving party meets its initial burden of showing there is no genuine issue of material fact, however, the opposing party may not rest upon the allegations of his or her pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Chism v. W.R. Grace Co., 158 F.3d 988, 990 (8th Cir. 1998). Where unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate. Id.
Under Nebraska law, the initial question of whether a contract is ambiguous is a question of law to be determined by the court. Actonet, Ltd. v. Allou Health Beauty Care, 219 F.3d 836, 843 (8th Cir. 2000). Once the court determines that a contract is unambiguous, construction of the contract is also a question of law to be decided by the court. Id. In construing the contract, the intent of the parties must be determined by the plain and ordinary meaning of the contract language as the ordinary or reasonable person would understand it. Id. Under Nebraska law, the elements of a prima facie case of breach of contract are: (1) the existence of a contract; (2) breach of the contract; and (3) damages which flow from the breach. United States v. Basin Elec. Pwr. Coop., 248 F.3d 781, 810 (8th Cir. 2001). The plaintiff bears the burden of proving each element. Id.
The unrefuted evidence shows that, in October 1999, Remedial entered into a contract to perform remedial and construction services for ASARCO, the owner of a lead refinery and smelter plant in Omaha, Nebraska. See Filing No. 8, Ex. 1, Declaration of Steven R. Birdwell, at ¶ 2. The contract required Remedial to waive its rights to file a construction lien on the property that was the subject of the project and to ensure that no liens were filed on the property by its subcontractors and suppliers. See id. Remedial subcontracted some of the work to General Concrete. See id. at ¶ 3; attached Ex. A. Under the subcontract, General Concrete agreed to furnish written waivers of lien from its sub-subcontractors. See Filing No. 8, attached Ex. A at 4.
General Concrete, in turn, subcontracted with Ready-Mixed Concrete Company (Ready-Mixed). See id., attached Ex. A; Filing No. 4, General Concrete's Answer at ¶ 8. On July 10, 2001, Ready-Mixed filed a construction lien on the property and later filed an action to foreclose the lien. See Filing No. 8, Ex. 1 at ¶¶ 4 and 5; attached Ex. B. ASARCO then demanded, pursuant to its contract with Remedial, that Remedial discharge the lien. See Filing No. 8, Ex. 1 at ¶ 6. Remedial demanded that General Concrete discharge the lien and General Concrete refused to do so. See id. at ¶ 7.
The court has reviewed the contract at issue and finds that it is not ambiguous. See Filing No. 8, attached Ex. A. The court further finds that, afforded its ordinary meaning, the contract unambiguously requires General Concrete to obtain and furnish waivers of lien and further requires it to discharge such liens if necessary. See id. at 4.
Remedial has proven the existence of a contract. See Filing No. 4, General Concrete's Answer at ¶ 8. Remedial has further shown that General Concrete breached the contract in two respects. First, by its own admission, General Concrete, breached the contractual requirement that it obtain and furnish to Remedial written waivers of lien rights from its subcontractors, including Ready-Mixed. See id. Second, General Concrete refused to discharge the lien. See Filing No. 8, Ex. 1 at ¶ 18. Remedial has shown that it suffered damages in that it has incurred the expense of filing a surety lien. See id. at ¶ 19. The amount of such damages remains to be determined. Accordingly, having proven the elements of a claim for breach of contract, the court finds that Remedial is entitled to a summary judgment of liability on its breach of contract claim.
IT IS HEREBY ORDERED:
1. Remedial's motion for partial summary judgment, Filing No. 7, is granted;
2. A judgment of liability for breach of contract is entered in favor of Remedial Construction Services, Inc. and against General Concrete, Inc.; and
3. The remaining issues will proceed to trial according to the order of progression, Filing No. 30.