Aurora Technology v. Labedz , 30 Neb. Ct. App. 33 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/13/2021 08:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33Aurora Technology, Inc., appellant,
v. Frank Labedz and Sherri
Labedz, appellees.
___ N.W.2d ___
Filed June 29, 2021. No. A-20-846.
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 the facts and
that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Limitations of Actions. Which statute of limitations applies is a ques-
tion of law.
4. Judgments: Appeal and Error. An appellate court reaches a con-
clusion regarding questions of law independently of the trial court’s
conclusion.
5. Contracts: Proof: Limitations of Actions. A contract is unwritten if
it cannot be wholly proved by a writing or writings. If the contract is
partly oral and partly written or if a written agreement is so indefinite as
to necessitate a resort to parol testimony to make it complete, the statute
of limitations concerning contracts not in writing would be applicable
just as though the contract had rested entirely in parol.
6. Contracts. Parol acceptance of an offer in writing does not give rise
to an agreement or contract in writing within the purview of Neb. Rev.
Stat. § 25-205 (Reissue 2016).
7. Summary Judgment. In the summary judgment context, a fact is mate-
rial only if it would affect the outcome of the case.
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AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Kathryn J. Derr, of Berkshire & Burmeister, for appellant.
Craig Martin and Daniel J. Hassing, of Lamson, Dugan &
Murray, L.L.P., for appellees.
Riedmann, Arterburn, and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Aurora Technology, Inc. (Aurora), appeals the order of the
district court for Douglas County granting summary judgment
in favor of Frank Labedz and Sherri Labedz (collectively
Labedz) on the basis that the 4-year statute of limitations for
oral contracts barred Aurora’s breach of contract and unjust
enrichment claims. We find that the district court did not err in
its decision and therefore affirm.
BACKGROUND
Aurora is a Nebraska corporation formed in 2004. In late
2011, Labedz began communicating with Aurora for the pur-
pose of having Aurora install an “intelligent home system” in
Labedz’ condominium. On March 19, 2012, Aurora and Labedz
signed a contract. Under the heading “Scope of Contract,” the
document states that Aurora will “provide the design, equip-
ment, and labor required to complete [the] project to the
specifications & descriptions agreed upon in the documents,
attached hereto and incorporated herein.” The contract does not
contain any further details outlining the work Aurora agreed to
complete for Labedz nor does it include any costs associated
with the work. There were no documents attached to the con-
tract or specifically incorporated into it.
The contract also includes a section regarding change
orders, describing that a change order is “work that is added
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AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33to or deleted from the original scope of work of a contract,
which alters the original contract amount or completion date.”
The contract also provides that all change orders will be “writ-
ten or electronic” and that verbal change requests will not be
acted upon without written or electronic documentation. There
were no change orders completed on this project.
Christopher Tyler is the president of Aurora. At Tyler’s
deposition, he described the written contract as the “begin-
ning contract, the initial contract” and testified that it partially
controlled the relationship between Aurora and Labedz but that
there were also “a lot of oral discussions” between the parties
throughout the duration of the project. Tyler explained that his
purpose in drafting the contract was to give Aurora and Labedz
“a starting point of what may be done.”
According to Tyler, at the time the parties signed the
contract, he also provided Labedz with a proposal for the
equipment and labor involved for lighting work and for win-
dow shade work. Neither of these proposals, which are both
dated March 19, 2012, is signed by either party. The total
­projected cost for the work contained in these two proposals
was $29,972.71. The record also includes five proposals dated
June 11, 2012; one proposal dated July 27, 2012; and two
proposals dated October 15, 2014, that Aurora created for vari-
ous aspects of the Labedz project. Tyler testified that Labedz
approved some of these proposals, modified some of them,
and rejected some of them. Tyler was unable to recall if he
ever presented one of the June proposals to Labedz. At Frank’s
deposition, he was asked whether, over time, he received cer-
tain written proposals from Aurora. He recalled “getting a set
of documents in conjunction with the contract” that detailed
certain work.
Tyler explained that, generally speaking, he would usu-
ally communicate with his clients via verbal discussions and
receive verbal approval for certain work. With respect to
Labedz, Tyler acknowledged that a lot of the work he did for
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AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33this project was done pursuant to an oral acceptance from
Labedz. He described numerous parts of the project that were
done pursuant to oral agreements between Aurora and Labedz,
including, for example, installation of a curved television, set-
ting up cable products and services, troubleshooting certain
issues, unloading a mirror, “fish[ing] wires” for an office tele-
vision, and moving and installing “therm/HVAC.”
Throughout the project, Aurora periodically requested pay-
ments, and Labedz generally made payments as requested. In
total, Labedz paid more than $200,000 to Aurora. Ultimately,
Aurora submitted invoices to Labedz indicating that there was
a total remaining unpaid balance of $125,232.10.
Labedz declined to pay the remaining balance, and the
parties agree that their relationship terminated by February
13, 2015. On May 1, 2019, Aurora filed a complaint in the
district court against Labedz alleging breach of contract and
unjust enrichment. Labedz filed an answer and asserted, as an
affirmative defense, that Aurora’s claims were barred by the
statute of limitations. Labedz thereafter filed a motion for sum-
mary judgment.
After holding a hearing on the motion, the district court
entered a written order. The court recognized that the parties
agree that Aurora’s claims accrued no later than February 13,
2015, and that the action was commenced on May 1, 2019,
which is more than 4 years but less than 5 years after the par-
ties’ relationship ended; therefore, the question of whether
Aurora’s claims were barred by the statute of limitations
depends upon which statute applies. Neb. Rev. Stat. § 25-206
(Reissue 2016) provides that an action upon a contract, not in
writing, express or implied, can only be brought within 4 years.
However, a 5-year statute of limitations applies for contracts in
writing. See Neb. Rev. Stat. § 25-205 (Reissue 2016). The dis-
trict court, therefore, observed that if the parties’ relationship
was governed by a contract that was not in writing, the 4-year
statute of limitations applies and Aurora is precluded from
bringing its breach of contract claim.
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AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33On this question, the district court noted that although the
written contract indicated that documents were attached and
incorporated, no documents or other materials were attached
to the contract. In addition, the contract did not include any
provision explaining the nature and scope of the work that
Labedz would be required to pay for, nor how much the
various services would cost. Thus, in order to determine the
amount Labedz owed under the contract, the court would be
required to look to extrinsic evidence, including oral agree-
ments. The court recognized that Labedz admitted that he
received additional documents associated with the contract, but
found that even assuming those documents were part of the
contract, some of the allegedly unpaid balances accrued pursu-
ant to verbal agreements.
Relying on Nebraska case law, the district court determined
that the agreement, which was partly oral and partly writ-
ten, was properly considered to be an oral agreement; thus,
Aurora’s breach of contract claim was subject to the 4-year
statute of limitations. As such, the claim was time barred. The
court also found that the statute of limitations for Aurora’s
unjust enrichment claim was 4 years and that therefore, it was
untimely as well. Accordingly, the district court granted the
motion for summary judgment and dismissed Aurora’s claims.
Aurora appeals.
ASSIGNMENTS OF ERROR
Aurora assigns that the district court erred in (1) finding on
summary judgment that the 4-year statute of limitations under
§ 25-206 applies to bar this breach of contract action and (2)
finding that no genuine issues of material fact exist to prevent
determination of the applicable statute of limitations at the
summary judgment stage.
STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
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AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the
facts and that the moving party is entitled to judgment as a
matter of law. Churchill v. Columbus Comm. Hosp., 285 Neb.
759, 830 N.W.2d 53 (2013). In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted,
and gives that party the benefit of all reasonable inferences
deducible from the evidence. Id.[3,4] Which statute of limitations applies is a question of
law. Id. We reach a conclusion regarding questions of law inde-
pendently of the trial court’s conclusion. Id.ANALYSIS
Statute of Limitations.
Aurora asserts that the district court erred in applying the
4-year statute of limitations for oral contracts found in § 25-206
rather than the 5-year statute of limitations for contracts in
writing found in § 25-205. Aurora claims, stated differently,
that the court erred in classifying the contract as an oral con-
tract as opposed to a written contract. We disagree.
[5] A contract is unwritten if it cannot be wholly proved
by a writing or writings. Grant v. Williams, 158 Neb. 107, 62
N.W.2d 532 (1954). If there is anything that must be supplied
by parol evidence to make it a binding obligation an action
upon it is not one on a written instrument. Id. If the contract
is partly oral and partly written or if a written agreement is so
indefinite as to necessitate a resort to parol testimony to make
it complete, the statute of limitations concerning contracts not
in writing would be applicable just as though the contract had
rested entirely in parol. Id.The Nebraska Supreme Court in Grant v. Williams, supra,found that the action before it was not based upon an agree-
ment in writing because the writing did not contain a promise
to pay any amount and stated no fact from which the law
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AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33implied an obligation to pay any amount. The action was
therefore subject to the 4-year statute of limitations for oral
contracts.
The Supreme Court addressed a similar question in Beekman
v. Cornhusker Farms, 214 Neb. 418, 333 N.W.2d 918 (1983).
There, the plaintiff and defendant entered into a written agree-
ment for farming work, which set forth a description of the
work and standard charges for it. The parties made subse-
quent modifications to the agreement by parol agreements.
On appeal, the Supreme Court framed the issue as whether
parol modification of a written agreement results in the entire
agreement being treated as an oral agreement for purposes of
the statute of limitations. Relying in part on Grant v. Williams,
supra, the Supreme Court found that the record reflected that
the farming agreement was either modified by subsequent
parol agreements which could only be proved by parol evi-
dence or that the plaintiff’s claims were based upon separate
and independent parol agreements. Thus, in either event, it
held that because the contract was partly oral and partly writ-
ten and the terms thereof so indefinite as to necessitate parol
testimony, the statute of limitations pertaining to parol agree-
ments was applicable.
Likewise, in the present case, although there is a written
contract between the parties, parol evidence is necessary in
order to establish the terms of the agreement. Pursuant to the
contract, Aurora was to provide the design, equipment, and
labor required to complete the project, but parol evidence is
necessary to determine the scope of the work to be completed
and the cost of such work. Because Aurora’s claim is based
on Labedz’ failure to pay certain costs associated with the
project, we must turn to parol evidence to establish whether
Labedz agreed to that particular work at that particular cost
in order to determine the validity of Aurora’s claim. In other
words, the writing itself does not contain a contract or prom-
ise to do the thing for the nonperformance of which the action
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AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33is brought, and the terms of the agreement in writing are so
indefinite as to necessitate parol evidence. Because there are
parts of the agreement that must be supplied by parol evi-
dence to make it a binding obligation, an action upon it is not
one on a written instrument. See Grant v. Williams, 158 Neb.
107, 62 N.W.2d 532 (1954). Therefore, the statute of limita-
tions for oral contracts provided by § 25-206 applies to bar
Aurora’s claim.
Aurora asserts that the contract should be considered to be
in writing because the written contract incorporated attach-
ments, including the proposals and invoices. Aurora argues
that a detailed description of the goods, services, and costs for
each project are set forth in the invoices it sent to Labedz and
that as a party to the contract, Labedz was aware of the goods
and services to be provided by Aurora and no further detailed
description was necessary.
The written contract states only that Aurora would “provide
the design, equipment, and labor required to complete [the]
project to the specifications & descriptions agreed upon in the
documents, attached hereto and incorporated herein.” As the
district court found, there were no documents attached to or
specifically incorporated into the contract. Aurora highlights,
and we agree, that generally, in the absence of anything to
indicate a contrary intention, instruments executed at the same
time, by the same parties, for the same purpose, and in the
course of the same transaction, are legally one instrument and
will be construed together as if they were as much one in form
as they are in substance. See Peterson v. Hynes, 220 Neb. 573,
371 N.W.2d 664 (1985).
Viewing the evidence in the light most favorable to Aurora,
we determine that the March 19, 2012, proposals could be
considered to be incorporated into the written contract because
they were executed at the same time, by the same parties,
and in the course of the same transaction and because Tyler
asserted that he provided them to Labedz along with the
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Cite as 30 Neb. App. 33contract. Therefore, the extent of the parties’ agreement in
writing was for the work detailed in the two March proposals,
which totaled $29,972.71.
[6] However, the work that Aurora performed for Labedz
and for which it sought payment went far beyond that which
is described in those two proposals. The remaining proposals
were not executed at the same time as the written contract nor
did Labedz agree to all of the work set forth therein. Tyler tes-
tified that with regard to the later proposals, there were some
that Labedz approved, some that were modified, and some that
were rejected. In fact, Tyler was unable to recall if he ever pre-
sented one of the June proposals to Labedz. At best, we could
consider the remaining proposals to be written offers, and the
acceptance of any of the offers was parol. Parol accept­ance of
an offer in writing does not give rise to an agreement or con-
tract in writing within the purview of a statute of limitations
applicable to written contracts. See Kingman v. Davis, 63 Neb.
578, 88 N.W. 777 (1902). We therefore do not consider the
remaining proposals to be incorporated into the written con-
tract or to evidence an agreement in writing.
Furthermore, we do not agree that the invoices form part of
the written contract, because they were created after the work
was completed and do not establish an agreement between
the parties. Indeed, the fact that Labedz objected to certain
invoices and refused to pay them is what led Aurora to com-
mence the present action. Accordingly, the agreement in writ-
ing is limited, at best, to the costs detailed in the March 2012
proposals, and any agreement beyond that necessitates parol
evidence. The contract therefore is partly oral and partly writ-
ten. As such, it is properly considered to be an oral contract
subject to the 4-year statute of limitations.
Although Aurora also sought recovery under a theory of
unjust enrichment and the district court found the claim was
time barred, Aurora has not appealed this issue. We therefore
do not address the unjust enrichment claim.
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Cite as 30 Neb. App. 33Genuine Issues of Fact.
Aurora also argues that there were genuine issues of mate-
rial fact present that preclude determination of the appli-
cable statute of limitations at the summary judgment stage.
It specifically alleges that questions of fact exist as to (1)
whether the parties intended to include in the contract matters
expressed in the proposals and emails, (2) whether the writ-
ings were intended as the final agreement between the parties,
(3) whether other separate oral agreements between the par-
ties exist and whether those oral agreements were intended
as separate contracts or modifications to the original written
agreement, and (4) whether the emails exchanged between the
parties discussing their oral conversations were sufficient to
create written modifications to the contract and/or written con-
firmation of oral agreements to provide additional or different
goods and services.
[7] To the extent any of these factual issues exist, we dis-
agree that they are material such that they preclude entry of
summary judgment in favor of Labedz. In the summary judg-
ment context, a fact is material only if it would affect the
outcome of the case. Pitts v. Genie Indus., 302 Neb. 88, 921
N.W.2d 597 (2019). The question here is whether the agree-
ment between the parties is oral or written for purposes of
determining the applicable statute of limitations. The written
contract does not specifically describe the work Aurora was
to complete or the cost of such work beyond the March 2012
proposals. Tyler acknowledged that much of the work he did
for this project was done pursuant to an oral acceptance from
Labedz, and he described numerous parts of the project that
were done pursuant to oral agreements.
Thus, even if the factual issues that Aurora highlights
exist, the uncontroverted evidence establishes that parts of
the agreement remain oral. Therefore, the contract is properly
considered to be an oral contract, for which the 4-year statute
of limitations applies. Accordingly, there is no genuine issue
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AURORA TECHNOLOGY v. LABEDZ
Cite as 30 Neb. App. 33of material fact affecting determination of the proper statute of
limitations to be applied here. The district court therefore did
not err in finding that Aurora’s action was time barred and in
granting the motion for summary judgment.
CONCLUSION
We conclude that the district court did not err in applying
the 4-year statute of limitations set forth in § 25-206; therefore,
Aurora’s breach of contract action was time barred and we
affirm the district court’s order.
Affirmed.