McCaulley v. C L Enters. , 309 Neb. 141 ( 2021 )


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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    McCAULLEY v. C L ENTERS.
    Cite as 
    309 Neb. 141
    Richard McCaulley, individually and as
    Personal Representative of the Estate
    of Michelle McCaulley, appellant, v.
    C L Enterprises, Inc., a Nebraska
    corporation, et al., appellees.
    ___ N.W.2d ___
    Filed May 7, 2021.     No. S-20-075.
    1. Summary Judgment: Appeal and Error. An appellate court will affirm
    a lower court’s grant of summary judgment if the pleadings and admit-
    ted 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. An
    appellate court reviews the district court’s grant of summary judgment
    de novo, viewing the record in the light most favorable to the nonmov-
    ing party and drawing all reasonable inferences in that party’s favor.
    2. Pleadings: Judges: Words and Phrases: Appeal and Error. A district
    court’s denial of a motion for leave to amend a complaint is reviewed
    for an abuse of discretion. A judicial abuse of discretion exists if the
    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in matters
    submitted for disposition.
    3. Limitations of Actions: Negligence: Breach of Warranty: Contractors
    and Subcontractors. The limitations period in 
    Neb. Rev. Stat. § 25-223
    (Reissue 2016) applies to defective construction claims brought against
    contractors and builders, whether such claims are based on negligence
    or breach of warranty.
    4. Limitations of Actions: Contractors and Subcontractors. When the
    basis of a claim against a builder or contractor is improper workmanship
    resulting in defective construction, the statute of limitations under 
    Neb. Rev. Stat. § 25-223
     (Reissue 2016) runs from the date of substantial
    completion of the project, not the date of any specific act which resulted
    in the defect.
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    McCAULLEY v. C L ENTERS.
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    309 Neb. 141
    5. ____: ____. Determining when a construction project is substantially
    complete for purposes of the limitations period under 
    Neb. Rev. Stat. § 25-223
     (Reissue 2016) requires consideration of the nature and scope
    of the agreed-upon project.
    6. Pleadings: Rules of the Supreme Court: Appeal and Error. When a
    party seeks leave to amend a pleading, appellate court rules generally
    require that leave shall be freely given when justice so requires. Denial
    of leave to amend pleadings is appropriate only in those limited circum-
    stances in which undue delay, bad faith on the part of the moving party,
    futility of the amendment, or unfair prejudice to the nonmoving party
    can be demonstrated.
    7. Pleadings: Summary Judgment: Evidence. Generally, it is not an
    abuse of discretion to deny leave to amend when a party seeks to add
    a new claim or defense after a motion for summary judgment has been
    heard and submitted, unless evidence or testimony exists in the record
    indicating the proposed claim or defense was newly discovered or that
    counsel was previously unaware of the claim.
    Appeal from the District Court for Douglas County: W.
    Russell Bowie III, Judge. Affirmed.
    Andrew M. Hollingsead and Michael J. Matukewicz, of
    Liakos & Matukewicz, L.L.C., for appellant.
    Robert D. Mullin, Jr., of McGrath, North, Mullin & Kratz,
    P.C., L.L.O., for appellee Able Plumbing, Inc.
    Robert M. Schartz and Julie M. Ryan, of Abrahams, Kaslow
    & Cassman, L.L.P., for appellee Timberland Hardwood Floors,
    Inc.
    Danny C. Leavitt, of Salerno & Leavitt, for appellee Dan
    Becker.
    Daniel J. Welch, Damien J. Wright, and Daniel McDowell,
    Senior Certified Law Student, of Welch Law Firm, P.C., for
    appellee Hardscape Contractors, LLC.
    Heavican, C.J., Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    McCAULLEY v. C L ENTERS.
    Cite as 
    309 Neb. 141
    Stacy, J.
    In this construction defect case brought by homeowners
    against several contractors, the district court found the home-
    owners’ claims were time barred under 
    Neb. Rev. Stat. § 25-223
    (Reissue 2016). The primary question on appeal is whether the
    4-year limitations period under § 25-223 began to run on the
    date each contractor substantially completed its project or on
    the date the entire home was completed. Because we agree
    with the district court that the limitations period against each
    contractor began to run upon the substantial completion of
    each contractor’s project, we affirm.
    BACKGROUND
    In approximately November 2006, Richard McCaulley and
    Michelle McCaulley began construction on a home in Omaha,
    Nebraska. The McCaulleys acted as their own general con-
    tractor, and in that capacity, they hired a number of different
    contractors to perform specific work. As relevant to the issues
    on appeal, the McCaulleys hired Able Plumbing, Inc., to install
    sewer lines servicing the property; Affordable Exteriors, Inc.,
    to install exterior masonry and brickwork; Stile Construction
    Services, LLC (Stile), to install the roof; Timberland Hardwood
    Floors to install hardwood floors; Dan Becker Construction to
    install the doors and windows; Senegal Specialty Contracting,
    LLC, to perform waterproofing and to install drain tile and
    sump pumps; and Hardscape Contractors, LLC, to construct a
    retaining wall.
    The McCaulleys moved into the home sometime in late
    February or early March 2008. Approximately 4 years later,
    on February 7, 2012, they filed this construction defect action
    in the district court for Douglas County, naming as defendants
    12 of the contractors involved in the construction of the home,
    including the 7 contractors referenced above.
    The McCaulleys alleged a separate negligence claim against
    each of the seven contractors. Specifically, they alleged that
    each such contractor owed a legal duty to install its “respective
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    McCAULLEY v. C L ENTERS.
    Cite as 
    309 Neb. 141
    improvements” to the property “in a good and workmanlike
    manner” and failed to do so. They also alleged a breach of
    warranty claim against four of the contractors: Able Plumbing,
    Affordable Exteriors, Stile, and Dan Becker Construction.
    Specifically, they alleged that each such contractor’s work
    carried with it a warranty the work “would be performed in
    a good and workmanlike manner, without latent defects, and
    reasonably fit for the ordinary purposes” for which the spe-
    cific work was intended. It was alleged that each such contrac-
    tor breached the warranty, because the McCaulleys discovered
    “numerous and substantial defects and deficiencies in the
    installation” work of each. There were no allegations that any
    of the contractors expressly warrantied their work.
    While the case was pending, Michelle died. Her claims
    have been revived by Richard in his capacity as personal
    representative of her estate. For ease of reference, this opin-
    ion will continue to refer to the plaintiffs/appellants as “the
    McCaulleys.”
    At different times during the litigation, each of the seven
    contractors referenced above filed a motion for summary judg-
    ment, arguing the claim against it was barred by the 4-year
    limitations period under § 25-223. Each of the seven contrac-
    tors generally argued that the McCaulleys’ claim accrued, and
    the limitations period under § 25-223 began to run, on the
    date that each contractor substantially completed its work. The
    McCaulleys did not dispute the dates on which each contractor
    claimed to have completed its work, but instead argued that
    the 4-year limitations period did not start to run for any of the
    seven contractors until the entire home construction project
    was substantially completed.
    In March 2014, the district court granted summary judgment
    in favor of Timberland Hardwood Floors, Senegal Specialty
    Contracting, and Hardscape Contractors, generally agreeing
    that the limitations period for the McCaulleys’ claims against
    these contractors began to run on the dates that each contrac-
    tor substantially completed its work. After determining the
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    McCAULLEY v. C L ENTERS.
    Cite as 
    309 Neb. 141
    substantial completion date for each contractor, the district
    court found the McCaulleys’ suit had not been filed within 4
    years of such date. The district court also found the discovery
    rule did not extend the time to file against any of these contrac-
    tors, and thus, it dismissed the claims against those contractors
    as time barred. In June 2015, the district court utilized identi-
    cal reasoning to grant summary judgment in favor of Able
    Plumbing and Dan Becker Construction.
    Similar summary judgment motions were filed by Affordable
    Exteriors and Stile, and those motions were pending when this
    court decided Adams v. Manchester Park. 1 At the summary
    judgment hearing in November 2015, the McCaulleys made an
    oral motion for leave to file a fourth amended complaint, rely-
    ing on language in the concurring opinion in Adams to argue
    they should be allowed to amend their complaint to allege
    the breach of an express warranty to repair. Both Affordable
    Exteriors and Stile objected to the requested amendment, argu-
    ing that the McCaulleys had already filed three complaints and
    that none had alleged the existence, or breach, of an express
    warranty to repair material defects. The court took the oral
    motion to amend under advisement.
    In an order entered February 11, 2016, the district court
    granted summary judgment in favor of Affordable Exteriors
    and Stile, again reasoning that the 4-year limitations period
    under § 25-223 began to run on the dates each contractor
    substantially completed its respective work and that the com­
    pletion dates were more than 4 years before the date on which
    the McCaulleys filed their lawsuit. The court also denied
    the McCaulleys’ request for leave to file a fourth amended
    complaint.
    After all remaining claims were resolved, the district court
    entered final judgment, and the McCaulleys timely appealed.
    We moved the case to our docket on our own motion.
    1
    Adams v. Manchester Park, 
    291 Neb. 978
    , 
    871 N.W.2d 215
     (2015).
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    McCAULLEY v. C L ENTERS.
    Cite as 
    309 Neb. 141
    ASSIGNMENTS OF ERROR
    The McCaulleys assign, restated, that the district court erred
    in (1) finding their claims against the seven contractors were
    time barred by § 25-223 and (2) denying their oral motion
    seeking leave to amend their complaint to add a new claim
    against Affordable Exteriors and Stile.
    STANDARD OF REVIEW
    [1] 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. 2 An appellate court reviews the district court’s
    grant of summary judgment de novo, viewing the record in the
    light most favorable to the nonmoving party and drawing all
    reasonable inferences in that party’s favor. 3
    [2] A district court’s denial of a motion for leave to amend
    a complaint is reviewed for an abuse of discretion. 4 A judicial
    abuse of discretion exists if the reasons or rulings of a trial
    judge are clearly untenable, unfairly depriving a litigant of a
    substantial right and denying just results in matters submitted
    for disposition. 5
    ANALYSIS
    Statute of Limitations
    The primary issue on appeal is whether the contractors were
    entitled to summary judgment on statute of limitations grounds.
    Given the nature of the McCaulleys’ claims against the con-
    tractors, all parties agree the applicable statute of limitations is
    found in § 25-223. That statute provides:
    2
    Fuelberth v. Heartland Heating & Air Conditioning, 
    307 Neb. 1002
    , 
    951 N.W.2d 758
     (2020).
    3
    
    Id.
    4
    Eagle Partners v. Rook, 
    301 Neb. 947
    , 
    921 N.W.2d 98
     (2018).
    5
    Grothen v. Grothen, 
    308 Neb. 28
    , 
    952 N.W.2d 650
     (2020).
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    McCAULLEY v. C L ENTERS.
    Cite as 
    309 Neb. 141
    Any action to recover damages based on any alleged
    breach of warranty on improvements to real property or
    based on any alleged deficiency in the design, planning,
    supervision, or observation of construction, or construc-
    tion of an improvement to real property shall be com-
    menced within four years after any alleged act or omis-
    sion constituting such breach of warranty or deficiency.
    If such cause of action is not discovered and could not
    be reasonably discovered within such four-year period,
    or within one year preceding the expiration of such four-
    year period, then the cause of action may be commenced
    within two years from the date of such discovery or
    from the date of discovery of facts which would reason-
    ably lead to such discovery, whichever is earlier. In no
    event may any action be commenced to recover dam-
    ages for an alleged breach of warranty on improvements
    to real property or deficiency in the design, planning,
    supervision, or observation of construction, or construc-
    tion of an improvement to real property more than ten
    years beyond the time of the act giving rise to the cause
    of action. 6
    [3] We have long held that the limitations period in § 25-223
    applies to defective construction claims brought against con-
    tractors and builders, whether such claims are based on neg-
    ligence or breach of warranty. 7 The dispute in this appeal
    centers on when the 4-year limitations period under § 25-223
    began to run as against the contractors.
    [4] As a general rule, when the basis of a claim against a
    builder or contractor “is improper workmanship resulting in
    defective construction, the § 25-223 statute of limitations runs
    from the date of substantial completion of the project, not the
    6
    § 25-223 (emphasis supplied).
    7
    See Fuelberth, 
    supra note 2
    , citing Murphy v. Spelts-Schultz Lumber Co.,
    
    240 Neb. 275
    , 
    481 N.W.2d 422
     (1992). See, also, Adams, supra note 1;
    Witherspoon v. Sides Constr. Co., 
    219 Neb. 117
    , 
    362 N.W.2d 35
     (1985).
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    date of any specific act which resulted in the defect.” 8 In the
    instant case, the McCaulleys and the contractors disagree on
    how to characterize the construction project for purposes of
    applying this general rule.
    The McCaulleys generally contend the project was the
    construction of their home; as such, they argue the limita-
    tions period did not start to run against any contractor until
    the entire home was substantially completed in late February
    or early March 2008. The contractors define the project more
    narrowly. They contend the McCaulleys contracted for sepa-
    rate construction projects with each of the contractors; as such,
    they argue the limitations period began to run against each
    contractor on the date that contractor substantially completed
    its work.
    The question presented in this case is one we have not
    directly considered before: When a homeowner has not con-
    tracted with a builder or general contractor to construct the
    entire home, and instead has entered into separate agreements
    with individual contractors to construct portions of the home,
    when does the limitations period under § 25-223 begin to run?
    Before addressing that question, we note the McCaulleys
    do not contend the district court made any error in determin-
    ing the dates on which each contractor substantially com-
    pleted its own work, nor do they make any arguments related
    to the discovery rule, or the statute of repose, under § 25-223.
    We limit our analysis accordingly.
    The plain language of § 25-223 requires that any action
    must be commenced “within four years after any alleged act
    or omission constituting such breach of warranty or defi-
    ciency.” Most of our prior cases applying this language have
    8
    Adams, supra note 1, 291 Neb. at 983, 871 N.W.2d at 218-19. See, also,
    Durre v. Wilkinson Development, 
    285 Neb. 880
    , 
    830 N.W.2d 72
     (2013);
    Board of Regents v. Lueder Constr. Co., 
    230 Neb. 686
    , 
    433 N.W.2d 485
    (1988); Board of Regents v. Wilscam Mullins Birge, 
    230 Neb. 675
    , 
    433 N.W.2d 478
     (1988).
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    309 Neb. 141
    involved claims brought by a homeowner against the home-
    builder or general contractor, and the alleged act or omission
    was the builder’s and/or general contractor’s failure to erect
    the home in a workmanlike manner. 9 Under those circum-
    stances, we held that the wrongful act or omission of the
    builder and/or general contractor occurred on the date the
    home construction was substantially complete, not on the date
    the defective work was performed. 10 In other words, when
    a defective construction claim is brought against the home-
    builder or the general contractor alleging failure to construct
    the home in a good and workmanlike manner, we generally
    view the project as the entire home.
    More recently, in Fuelberth v. Heartland Heating & Air
    Conditioning, 11 we addressed the application of § 25-223 in
    a case potentially involving more than one project. There, the
    property owner entered into an oral agreement with a contrac-
    tor to design, construct, and install an interior geothermal
    system that would heat and cool a farm shop building and an
    exterior system that would melt ice on the building’s driveway.
    Several years later, the owner sued the contractor, alleging
    both systems had failed due to the contractor’s negligence and
    breach of the implied warranty of workmanlike performance.
    The contractor successfully moved for summary judgment,
    arguing the owner’s construction defect claims were time
    barred under § 25-223. On appeal, we considered how the
    “substantial completion” rule applied when there was evidence
    9
    See, e.g., Adams, supra note 1 (holding when homeowner sues homebuilder
    alleging defective construction due to improper soil compaction, limita­
    tions period begins to run upon substantial completion of home, not
    upon completion of soil compaction); Witherspoon, 
    supra note 7
     (holding
    when homeowner sues general contractor for failure to construct home
    in workmanlike manner due to subcontractor’s installation of faulty pipe,
    limitations period begins to run upon substantial completion of home, not
    upon date pipe was installed or broke).
    10
    
    Id.
    11
    Fuelberth, 
    supra note 2
    .
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    that the interior and exterior systems were substantially com-
    pleted at different points in time.
    Fuelberth recited the general rule that “where the basis
    of a claim is improper workmanship resulting in defective
    construction, the statute of limitations period under § 25-223
    begins to run from the date of substantial completion of the
    project.” 12 But application of that general rule to the facts
    in Fuelberth required us to determine whether the agree-
    ment between the owner and the contractor was divisible.
    We framed the question as whether the contractor was hired
    to complete one construction project involving two systems
    (such that the limitations period did not begin to run until the
    entire project was substantially complete) or two construc-
    tion projects involving separate systems (such that a separate
    limitations period would begin to run when the construction of
    each system was substantially complete). Fuelberth noted that
    whether the construction agreement between the owner and
    the contractor was “divisible or indivisible” was a question of
    fact, and because the evidence on that question was in dispute,
    summary judgment was not appropriate. 13 We explained:
    Whether the [owner] could institute and maintain suit
    as soon as one system was substantially complete or
    [was] required to wait until the substantial completion of
    the work as a whole depends on whether the agreement
    [between the owner and the contractor] was divisible or
    indivisible. If a contract is divisible, breaches of its sev-
    erable parts give rise to separate causes of action, [and]
    the statute of limitations will generally begin to run at
    the time of each breach. . . . If, however, a contract is
    indivisible, an action can be maintained on it only when a
    breach occurs or the contract is in some way terminated,
    12
    Id. at 1007, 951 N.W.2d at 762.
    13
    Id. at 1008, 951 N.W.2d at 762.
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    and the statute of limitations will begin to run from that
    time only. 14
    [5] Our opinions illustrate that when applying the general
    rule that the limitations period under § 25-223 “begins to run
    from the date of substantial completion of the project,” 15 con-
    sideration must be given to the nature and scope of the agreed-
    upon project. 16
    Here, the evidence was undisputed that the McCaulleys
    acted as their own general contractor when constructing their
    home, and they entered into separate agreements with each of
    the seven contractors to perform a specific project. There was
    no homebuilder or general contractor responsible for erecting
    the entire home. And we have been directed to no evidence in
    the record suggesting that the completion of any contractor’s
    project was necessarily tied to or contingent upon the comple-
    tion of another contractor’s work. Nor is there any genuine
    dispute over the dates on which any contractor substantially
    completed its agreed-upon work.
    On this record, we conclude the district court correctly
    found that under § 25-223, the statute of limitations for each
    of the McCaulleys’ claims against the contractors began run-
    ning on the dates that each contractor substantially completed
    its respective project. Because it is undisputed that all of those
    dates were more than 4 years before the date the McCaulleys
    filed this action, the contractors’ motions for summary judg-
    ment were properly granted.
    Amendment of Complaint
    In their second assignment of error, the McCaulleys argue
    the district court abused its discretion in denying their oral
    14
    Id. (internal quotation marks and citations omitted).
    15
    Id. at 1007, 951 N.W.2d at 762.
    16
    See, Fuelberth, 
    supra note 2
    ; Adams, supra note 1; Witherspoon, 
    supra note 7
    .
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    motion for leave to file a fourth amended complaint to add
    a claim of breach of warranty to repair. Their request to amend
    the complaint was made during the hearing on the motions for
    summary judgment filed by Affordable Exteriors and Stile.
    We review the district court’s denial of leave to amend for an
    abuse of discretion. 17
    [6] Generally, when a party seeks leave to amend a plead-
    ing, our rules require that “‘leave shall be freely given when
    justice so requires.’” 18 In applying this rule, we have explained
    that the denial of leave to amend pleadings is appropriate only
    in those limited circumstances in which undue delay, bad
    faith on the part of the moving party, futility of the amend-
    ment, or unfair prejudice to the nonmoving party can be
    demonstrated. 19
    Here, the district court denied leave to amend after find-
    ing the proposed amendment would be futile and would cause
    unfair prejudice to the nonmoving parties. Because the pro-
    posed fourth amended complaint considered by the court in its
    ruling is not in our record, we express no opinion on the futil-
    ity of the proposed amendment. Instead, we focus on whether
    the record supports denying leave to amend on grounds of
    undue delay or unfair prejudice, 20 and we conclude it does.
    The McCaulleys filed their original complaint in February
    2012. They amended their complaint in April 2012 and again
    in June 2015. All three complaints alleged the seven contrac-
    tors failed to complete their project in a good and workman-
    like manner and were therefore negligent. The third amended
    complaint added breach of implied warranty claims against
    17
    Eagle Partners, 
    supra note 4
    .
    18
    InterCall, Inc. v. Egenera, Inc., 
    284 Neb. 801
    , 811, 
    824 N.W.2d 12
    , 21
    (2012), quoting Neb. Ct. R. Pldg. § 6-1115(a).
    19
    InterCall, Inc., 
    supra note 18
    .
    20
    See Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
     (2017) (holding
    appellate court may affirm lower court ruling on different reasoning).
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    four of the contractors. Each of the seven contractors, after
    conducting discovery and preparing its case, moved for sum-
    mary judgment, asserting the McCaulleys’ claim was barred by
    the § 25-223 statute of limitations.
    By October 2015, the district court had granted the motions
    for summary judgment filed by five of the seven contractors,
    and only the motions filed by Affordable Exteriors and Stile
    remained pending. Those defendants appeared at the November
    2, 2015, evidentiary hearing on their motions and offered evi-
    dence showing why the claims in the operative third amended
    complaint were time barred. At that hearing, the McCaulleys,
    for the first time, asked for leave to amend their complaint
    to add a new claim that the contractors breached an express
    warranty to repair. While the McCaulleys argue on appeal that
    they were seeking amendment only with respect to the claims
    against Affordable Exteriors and Stiles, and not with respect to
    the five contractors already dismissed, their oral motion was
    unclear on that issue.
    [7] Generally, it is not an abuse of discretion to deny leave to
    amend when a party seeks leave to amend to add a new claim
    or defense after a motion for summary judgment has been
    heard and submitted, unless evidence or testimony exists in the
    record indicating the proposed claim or defense was newly dis-
    covered or that counsel was previously unaware of the claim. 21
    Absent such evidence, a request to amend an operative plead-
    ing while summary judgment is pending is often just a belated
    effort to inject issues of material fact into a proceeding where
    previously the pleadings revealed none. 22
    21
    See, Parnell v. Madonna Rehab. Hosp., 
    258 Neb. 125
    , 
    602 N.W.2d 461
    (1999); Darrah v. Bryan Memorial Hosp., 
    253 Neb. 710
    , 
    571 N.W.2d 783
    (1998). See, also, John P. Lenich, Nebraska Civil Procedure § 15:4 at 701
    (2021) (“[a]n explanation for the party’s failure to raise the new matter
    earlier becomes especially important if leave to amend is sought while the
    court is considering a motion for summary judgment”).
    22
    See id.
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    McCAULLEY v. C L ENTERS.
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    309 Neb. 141
    The McCaulleys claim the impetus for seeking leave to
    amend was the concurring opinion in Adams. 23 But that
    ­concurrence did not recognize any new construction defect
    claim. Instead, it suggested there may be certain claims, such
    as a claim for breach of an express warranty to repair, that
    would not accrue until after the project was complete and the
    promised repairs had not been made. But since the homeown-
    ers in Adams had not alleged such a claim, the concurring jus-
    tice agreed the majority had correctly applied the general rule
    that the limitations period in § 25-223 begins to run from the
    date the project is substantially completed. Thus, the Adams
    concurrence did not recognize a new claim or defense of
    which the McCaulleys would previously have been unaware.
    Moreover, while the McCaulleys argue they wanted to amend
    their operative complaint to add the type of claim described
    by the concurring justice in Adams, our appellate record
    does not contain the proposed amendment, and thus does
    not permit us to confirm or deny this characterization of the
    proposed claim.
    The record does, however, support the conclusion that the
    McCaulleys’ request for leave to add a new claim was the
    result of undue delay and would unfairly prejudice the defend­
    ant contractors. By the time the McCaulleys sought leave to
    amend their complaint a fourth time, the litigation had been
    pending for several years, and five of the contractors had
    already been granted summary judgment on statute of limita-
    tions grounds. Affordable Exteriors and Stile had moved for
    summary judgment on the same basis and objected to the
    McCaulleys’ request to add a new warranty claim. Further,
    Affordable Exteriors and Stile were present in court and pre-
    pared to offer evidence showing they were entitled to summary
    judgment based on the allegations in the McCaulleys’ opera-
    tive complaint. This record supports a finding of both undue
    23
    Adams, supra note 1.
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    309 Nebraska Reports
    McCAULLEY v. C L ENTERS.
    Cite as 
    309 Neb. 141
    delay and unfair prejudice, and we cannot find the district court
    abused its discretion in refusing to allow the McCaulleys to
    amend their complaint to add a new claim.
    CONCLUSION
    For the foregoing reasons, the district court did not err in
    finding the McCaulleys’ claims against the seven contractors
    involved in this appeal were time barred as a matter of law
    under § 25-223. Nor, on this record, did the district court abuse
    its discretion in denying the McCaulleys leave to amend their
    complaint to add a new claim. The judgment of the district
    court is affirmed.
    Affirmed.
    Miller-Lerman, J., not participating.