Opinion
No. S-91-758.
Filed November 24, 1993.
Appeal from the District Court for Douglas County: THEODORE L. CARLSON, Judge. Supplemental opinion: Former opinion modified. Motions for rehearing overruled.
William J. Brennan and Thomas M. White, of Fitzgerald, Schorr, Barmettler Brennan, for appellant.
Thomas J. Guilfoyle, of Frost, Meyers, Guilfoyle Govier, for appellee Bahr, Vermeer Haecker Architect, Ltd.
Susan E. Norris, of Gross Welch, P.C., for appellee The Chicago Lumber Company of Omaha.
Betty L. Egan, of Walentine, O'Toole, McQuillan Gordon, for appellee Sol Lewis Engineering Co.
HASTINGS, C.J., BOSLAUGH, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.
This case is now before this court on the motions for rehearing of the defendant and third-party plaintiff, appellant Gables CVF, Inc., and the third-party defendant, appellee Bahr, Vermeer Haecker Architect, Ltd. The opinion is reported at Gables CVF v. Bahr, Vermeer Haecker Architect, ante p. 346, 506 N.W.2d 706 (1993). Each of said motions is overruled; however, the opinion is modified as hereinafter stated.
The following paragraph, appearing in Gables CVF, ante at 355-56, reads:
It is impossible to say in the present state of the record that, as a matter of law on a motion for summary judgment, Goldman-Kasin was aware of all deviations from the building plans and was not relying upon BVH to inform it of subcontractors' deviations from the architect's plans. However, on remand, in the absence of fraud, if it is established that Goldman-Kasin was aware of the deviations from the building plans, then that knowledge must be imputed to its partner, Gables CVF, and Gables CVF would then be unable to complain that it was damaged by the failure of BVH to provide it with appropriate notice of deviations from the building plans.
It is hereby modified to read:
It is impossible to say in the present state of the record that, as a matter of law on a motion for summary judgment, Goldman-Kasin was aware of all deviations from the building plans and was not relying upon BVH to inform it of subcontractors' deviations from the architect's plans.
FORMER OPINION MODIFIED.
MOTIONS FOR REHEARING OVERRULED.
WHITE, J., not participating.