Dietzel Enters. v. J. A. Wever Constr. , 312 Neb. 426 ( 2022 )


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    www.nebraska.gov/apps-courts-epub/
    10/28/2022 12:05 AM CDT
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    Nebraska Supreme Court Advance Sheets
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    DIETZEL ENTERS. V. J. A. WEVER CONSTR.
    Cite as 
    312 Neb. 426
    Dietzel Enterprises, Inc., appellant, v.
    J. A. Wever Construction, L.L.C., appellee.
    ___ N.W.2d ___
    Filed September 16, 2022.   No. S-21-106.
    1. Breach of Contract: Damages. A suit for damages arising from a
    breach of contract presents an action at law.
    2. Judgments: Appeal and Error. In a bench trial of a law action, a trial
    court’s factual findings have the effect of a jury verdict and will not be
    set aside on appeal unless clearly wrong.
    3. ____: ____. After a bench trial of a law action, an appellate court does
    not reweigh evidence, but considers the evidence in the light most
    favorable to the successful party and resolves evidentiary conflicts in
    favor of the successful party.
    4. Damages: Appeal and Error. The amount of damages to be awarded is
    a determination solely for the fact finder, and its action in this respect
    will not be disturbed on appeal if it is supported by evidence and bears
    a reasonable relationship to the elements of the damages proved.
    5. Fraud. In determining whether an individual reasonably relied on a
    misrepresentation, courts consider the totality of the circumstances,
    including the nature of the transaction; the form and materiality of the
    representation; the relationship of the parties; the respective intelli-
    gence, experience, age, and mental and physical condition of the parties;
    and their respective knowledge and means of knowledge.
    6. Negligence: Fraud. In both negligent and fraudulent misrepresentation
    cases, whether the plaintiff exercised ordinary prudence is relevant to
    whether the plaintiff justifiably relied on the misrepresentation when the
    means of discovering the truth was in the plaintiff’s hands.
    7. Contracts. In order for the implied covenant of good faith and fair deal-
    ing to apply, there must be in existence a legally enforceable contrac-
    tual agreement.
    8. Contracts: Parties. The implied covenant of good faith and fair deal-
    ing exists in every contract and requires that none of the parties do
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    anything which will injure the right of another party to receive the
    benefit of the contract.
    9.   ____: ____. The nature and extent of an implied covenant of good faith
    and fair dealing are measured in a particular contract by the justifiable
    expectations of the parties. Where one party acts arbitrarily, capri-
    ciously, or unreasonably, that conduct exceeds the justifiable expecta-
    tions of the second party.
    10.   Contracts. The question of a party’s good faith in the performance of a
    contract is a question of fact.
    11.   Breach of Contract: Words and Phrases. A material breach is a failure
    to do something that is so fundamental to a contract that the failure to
    perform that obligation defeats the essential purpose of the contract or
    makes it impossible for the other party to perform under the contract.
    12.   Breach of Contract. A material breach will excuse the nonbreaching
    party from its performance of the contract.
    13.   ____. Whether or not a breach is material and important is a question
    of degree which must be answered by weighing the consequences of the
    breach in light of the actual custom of persons in the performance of
    contracts similar to the one involved in the specific case.
    14.   Damages: Evidence. Evidence of damages must be sufficient to enable
    the trier of fact to estimate actual damages with a reasonable degree of
    certainty and exactness.
    15.   Damages: Evidence: Proof. Proof of damages to a mathematical cer-
    tainty is not required; however, a plaintiff’s burden of offering evidence
    sufficient to prove damages cannot be sustained by evidence which is
    speculative and conjectural.
    16.   Breach of Contract: Damages. In a breach of contract case, the ulti-
    mate objective of a damages award is to put the injured party in the
    same position the injured party would have occupied if the contract had
    been performed, that is, to make the injured party whole.
    17.   Damages: Proof. A claim for lost profits must be supported by some
    financial data which permit an estimate of the actual loss to be made
    with reasonable certitude and exactness.
    Appeal from the District Court for Douglas County: James
    M. Masteller, Judge. Affirmed in part, and in part reversed
    and remanded with directions.
    Patrick T. Vint and Todd W. Weidemann, of Woods &
    Aitken, L.L.P., for appellant.
    Zachary W. Lutz-Priefert and Frederick D. Stehlik, of Gross,
    Welch, Marks & Clare, for appellee.
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    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    J. A. Wever Construction, L.L.C. (Wever), contracted with
    Dietzel Enterprises, Inc. (Dietzel), to perform excavation work
    for the construction of a transmission line. While Wever and
    Dietzel do not agree on who is to blame, all agree that the proj-
    ect did not go well. Dietzel eventually abandoned the project
    before its work was done. Unsurprisingly, litigation followed.
    Dietzel filed a lawsuit asserting various claims against Wever,
    and Wever asserted a breach of contract counterclaim against
    Dietzel. Following a bench trial, the district court found that
    Dietzel was the first party to materially breach the contract and
    awarded Wever damages. From this judgment, Dietzel appeals,
    arguing that the district court erred in its rejection of some of
    its claims, in its finding that Dietzel was not entitled to suspend
    its performance on the project, and in its damages award. We
    find that the evidence in the record did not support the entirety
    of the damages award to Wever but that the district court did
    not otherwise err. Accordingly, we affirm in part, and in part
    reverse and remand with directions.
    I. BACKGROUND
    The setting for this case is the construction site for a trans-
    mission line in Maryland owned by Baltimore Gas & Electric
    (BG&E). MasTec North America, Inc. (MasTec), was the proj-
    ect’s general contractor. Wever and Dietzel, two Nebraska
    companies, worked as subcontractors on the project. MasTec
    subcontracted with Wever to lay certain concrete foundations
    for the line, and Wever subcontracted with Dietzel to excavate
    the holes where the foundations would be laid.
    The parties experienced difficulties from the start. Work was
    to begin on the project in April 2015, but Dietzel was unable to
    arrive at the jobsite at the time directed by MasTec. To avoid a
    delay, the parties agreed that Wever would rent equipment and
    begin the excavation process until Dietzel could arrive.
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    After Dietzel arrived, more problems arose. Dietzel had
    difficulty performing the excavations, and the project began
    to fall behind schedule. Wever’s witnesses at trial generally
    blamed Dietzel employees’ allegedly poor excavation strategy
    as the cause of the problems and delays. Dietzel’s witnesses
    blamed the jobsite conditions, including the presence of alleg-
    edly “undrillable” rock. Dietzel contended that before it sub-
    mitted its bid, Wever led it to believe that no such rock would
    be present.
    Dietzel later became concerned that it was not being paid
    for the time and materials it was expending on the project. Of
    particular concern was whether it would receive payment for
    change orders it submitted to Wever for the excavation of hard
    rock it contended was not covered by the contract. Under the
    contract, however, Wever was not obligated to make payments
    to Dietzel unless and until it received payment from MasTec,
    and there was evidence that MasTec was slow to pay bills sub-
    mitted by Wever.
    This all came to a head in the fall of 2015. At that time,
    Dietzel requested assurance from Wever that Wever was seek-
    ing payment of its change orders from MasTec and that Dietzel
    would be paid for those change orders. Approximately 2 weeks
    later, Dietzel abandoned the project.
    Dietzel later filed this lawsuit alleging claims of breach of
    contract, unjust enrichment, negligent misrepresentation, and
    breach of the implied covenant of good faith and fair dealing.
    Wever filed a breach of contract counterclaim.
    Following a bench trial, the district court issued a writ-
    ten order. The district court found that Dietzel committed the
    first material breach of the contract when it abandoned the
    project, and it awarded Wever $2,758,250.47 in damages for
    that breach. It found in favor of Wever on Dietzel’s claims of
    negligent misrepresentation and breach of the implied cov-
    enant of good faith and fair dealing, but found that Wever had
    been unjustly enriched in the amount of $328,507, because it
    received a payment from MasTec for Dietzel’s work but had
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    not passed that payment on to Dietzel. After offsetting the
    amounts, the district court determined Wever was entitled to
    judgment in the amount of $2,429,743.47. Dietzel appealed,
    and we moved this case to our docket on our own motion.
    Additional relevant background is provided in the analysis
    section below.
    II. ASSIGNMENTS OF ERROR
    Dietzel assigns, renumbered and restated, that the district
    court erred (1) by finding that Wever was not liable for neg-
    ligent misrepresentation, (2) by finding that Wever was not
    liable for a breach of the implied covenant of good faith
    and fair dealing, (3) by finding that Dietzel did not have the
    right to stop performance of the contract on the grounds that
    Wever failed to provide adequate assurances of payment, (4)
    by finding that Wever’s failure to make a timely payment was
    not a material breach of contract, and (5) in its calculation
    of damages.
    III. STANDARD OF REVIEW
    [1] A suit for damages arising from a breach of contract
    presents an action at law. Goes v. Vogler, 
    304 Neb. 848
    , 
    937 N.W.2d 190
     (2020).
    [2,3] In a bench trial of a law action, a trial court’s factual
    findings have the effect of a jury verdict and will not be set
    aside on appeal unless clearly wrong. McGill Restoration v.
    Lion Place Condo. Assn., 
    309 Neb. 202
    , 
    959 N.W.2d 251
    (2021). After a bench trial of a law action, an appellate court
    does not reweigh evidence, but considers the evidence in the
    light most favorable to the successful party and resolves evi-
    dentiary conflicts in favor of the successful party. 
    Id.
    [4] The amount of damages to be awarded is a determina-
    tion solely for the fact finder, and its action in this respect will
    not be disturbed on appeal if it is supported by evidence and
    bears a reasonable relationship to the elements of the damages
    proved. Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 
    294 Neb. 715
    , 
    885 N.W.2d 1
     (2016).
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    DIETZEL ENTERS. V. J. A. WEVER CONSTR.
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    IV. ANALYSIS
    We address each of Dietzel’s assignments of error below.
    We take the assignments up in the chronological order of the
    underlying facts.
    1. Negligent Misrepresentation
    (a) Additional Background
    Dietzel claims that it came to be involved in the transmis-
    sion line project as a result of a misrepresentation by Wever.
    The alleged misrepresentation occurred in January 2015. At
    that time, Joshua Dezort, acting on behalf of Wever, sent an
    email to Brandon Kreiling, the operations manager for Dietzel.
    Kreiling had been involved with estimating projects for Dietzel
    since 2008 and, at the time, managed Dietzel’s submission of
    bids for potential projects. The email sought a bid from Dietzel
    for excavation work.
    Dezort’s email stated:
    Graceton Tline just north of Baltimore. Transmission
    line runs from Bel Air to Pylesville. 82 Drilled pier. There
    will be an outage so no energized lines overhead. Work
    would start end of Feb. Top 4˝ is loose running around
    5 to 7 blows. Then increases about 30 blow from 7´ to
    20´. 20´ plus runs around 50 blows with some holes a 90
    blows down 30´. There is an adder for rock excavation
    if required. The rock is Schist, which is sheet like rock
    consisting of mud and clay. Let me know if you are good
    with $1000 per cubic yard for rock excavation if required.
    There is 15 holes that you will hit rock on. On the sched-
    ule it shows depth of rock and depth of hole.
    Within 30 minutes of this email, Dezort sent Kreiling a
    geotechnical report. The geotechnical report provided details
    about small test holes drilled in the area of the jobsite.
    Thirteen test holes had a notation of “auger refusal,” which
    indicated that when the test hole was being drilled, the device
    used to drill the test hole hit something that prevented it from
    going any deeper. Kreiling testified that “auger refusal” could
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    have been caused by encountering rocks that were small in
    comparison to the excavating equipment, by a rock shelf,
    or by full rock. The geotechnical report also indicated that
    “[v]ery hard materials were encountered in . . . 19 of the 31
    borings at depths ranging from 13.5 to 33.5 feet below the
    existing ground surface.”
    The geotechnical report also had a section titled “Regional
    Geology.” This section stated:
    [T]he project area is underlain by residual soils derived
    primarily from the in-situ weathering of the underly-
    ing bedrock (Wissahickon Formation) and several of its
    members in this portion of the county, which include
    the Lower Peltic Schist, and Boulder Gneiss, which are
    comprised primarily of a fine to medium grained chlorite,
    muscovite schist with zones of quartzite, metagraywacke,
    and gneiss. A small portion of the transmission align-
    ment also appears to be underlain by rocks associated
    with the Ultramafic and Gabbroic Rock, comprised of
    metagabbros, talcs, serpentinites, actinolite schists.
    Dezort testified that metagraywacke is “a type of quartz
    schist rock,” that gneiss is “similar to schist, but . . . much
    harder and more compressed over time,” and that “muscovite
    schist with zones of quartzite” would mean that there would
    be a possibility of hitting quartz. Kreiling admitted that the
    geotechnical report was the best source of information about
    subsurface conditions and that it was available to him when he
    formulated Dietzel’s bid.
    Dietzel submitted a bid to Wever to perform the excavation
    work for $722,000 and estimated that it would be able to com-
    plete the work in 100 days. Wever accepted Dietzel’s bid.
    When Dietzel began its excavation work, it discovered
    granite and quartz. According to Dietzel, this was contrary to
    a sentence in Dezort’s initial email stating that the rock would
    be “[s]chist, [a] sheet like rock consisting of mud and clay.”
    Dietzel’s president, Andrew Dietzel, alleged at trial that the
    hard rock Dietzel encountered was “undrillable” and that if he
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    had known the project was going to require the excavation of
    granite and quartz, Dietzel would not have submitted a bid.
    Kreiling also testified that, based on Dezort’s representation
    that the rock was schist, he bid the job believing that any rock
    encountered would “break up well” and be easily excavated.
    Based on this information, Dietzel asserted a claim of neg-
    ligent misrepresentation. The district court rejected the claim,
    finding that Dietzel did not justifiably rely on the representa-
    tion in Dezort’s email.
    (b) Analysis
    Dietzel contends that the district court erred in finding that
    it did not justifiably rely on Dezort’s representation and that
    it proved all other elements of its negligent misrepresentation
    claim. We focus on the issue of justifiable reliance, because we
    find it resolves Dietzel’s argument.
    [5,6] In order to prevail on a claim of negligent misrepre-
    sentation, the plaintiff must prove justifiable reliance on the
    alleged misrepresentation. See, e.g., Lucky 7 v. THT Realty,
    
    278 Neb. 997
    , 
    775 N.W.2d 671
     (2009). In determining whether
    an individual reasonably relied on a misrepresentation, courts
    consider the totality of the circumstances, including the nature
    of the transaction; the form and materiality of the representa-
    tion; the relationship of the parties; the respective intelligence,
    experience, age, and mental and physical condition of the par-
    ties; and their respective knowledge and means of knowledge.
    Nathan v. McDermott, 
    306 Neb. 216
    , 
    945 N.W.2d 92
     (2020). In
    both negligent and fraudulent misrepresentation cases, whether
    the plaintiff exercised ordinary prudence is relevant to whether
    the plaintiff justifiably relied on the misrepresentation when
    the means of discovering the truth was in the plaintiff’s hands.
    
    Id.
     We have treated the question of whether a plaintiff jus-
    tifiably relied on a representation as a question of fact. See
    Lucky 7, 
    supra.
    Dietzel contends that the statement in Dezort’s email regard-
    ing schist was a positive statement of fact and that thus, under
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    our law, Dietzel was justified in relying upon it and had no
    obligation to further investigate it. In support of this conten-
    tion, Dietzel correctly points out that we have said that a
    plaintiff is justified in relying upon a positive statement of fact
    if an investigation would be required to discover its truth. See
    Nathan, 
    supra.
     We have stated, however, that this is a “general
    rule.” Lucky 7, 
    278 Neb. at 1003
    , 
    775 N.W.2d at 676
    . Accord
    Omaha Nat. Bank v. Manufacturers Life Ins. Co., 
    213 Neb. 873
    , 
    332 N.W.2d 196
     (1983). And we have also made clear that
    this principle does not permit a plaintiff to focus exclusively on
    an alleged misrepresentation and ignore other information in its
    possession. See Lucky 7, 
    supra.
    Here, Kreiling claims to have understood Dezort’s email
    to represent that the only rock Dietzel would encounter in its
    excavation would be schist, a “sheet like rock consisting of
    mud and clay.” Significant evidence, however, suggested that
    Dietzel was not justified in relying on such an understanding.
    The alleged misrepresentation appears in a terse email intro-
    ducing the idea of Dietzel’s submitting a bid on the project. In
    that email, Dezort did not specifically state that the only rock
    in the area would be schist or otherwise indicate that the area
    would not have other rock that was more difficult to drill. In
    addition, shortly after sending the introductory email, Dezort
    sent the geotechnical report, which contained detailed and
    more technical information. Kreiling, who had years of experi-
    ence reviewing such information and submitting bids, admitted
    that this additional information was the best source of informa-
    tion regarding subsurface conditions. This information reported
    the “auger refusal” that occurred during testing and the discov-
    ery of “[v]ery hard materials” in a number of locations. It also
    listed various types of rock found in the area, which Dezort
    testified indicated the presence of rock that was “much harder
    [than] schist,” as well as quartz. Viewing all this evidence in
    the light most favorable to Wever, we cannot conclude that the
    district court clearly erred by finding that Dietzel did not estab-
    lish justifiable reliance.
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    2. Good Faith and Fair Dealing
    (a) Additional Background
    Dietzel also contends that Wever is liable for failing to
    take certain actions shortly after it began work on the proj-
    ect. Wever arrived at the project site in early April 2015, but
    Dietzel was unable to begin work at that time. To avoid fall-
    ing behind schedule, the parties agreed that Wever would rent
    equipment and begin to perform a portion of the excavation
    work for which Dietzel had submitted a bid.
    Wever began excavation work at a location provided by
    MasTec, but it soon encountered materials that were too hard
    for it to excavate. Wever responded by moving to another
    location where Wever did not encounter the same difficulties.
    Wever did not, however, inform Dietzel about the hard rock
    discovered in its initial excavation work.
    When Dietzel arrived at the scene several weeks later, it was
    directed to begin excavating in the area where Wever encoun-
    tered hard rock. Like Wever, Dietzel encountered hard rock
    that was difficult to excavate.
    Dietzel alleged that Wever’s failure to disclose that it had
    discovered hard rock was a breach of its implied covenant
    of good faith and fair dealing. The district court rejected
    the claim, reasoning that Wever was not obligated to inform
    Dietzel about the hard rock, because the existence of hard
    rock was something Dietzel should have contemplated given
    the information that was available to it at the time it submitted
    its bid.
    (b) Analysis
    Dietzel contends that the district court erred by finding that
    Wever did not breach the implied covenant of good faith and
    fair dealing. Relying again on the reference in Dezort’s email
    to schist, Dietzel contends that Wever was obligated to inform
    Dietzel about the hard rock. When it did not, Dietzel sub-
    mits, Wever breached the implied covenant of good faith and
    fair dealing.
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    [7] We note that at the time Wever initially discovered hard
    rock in early April 2015, the parties’ subcontract had not been
    executed. The subcontract was dated April 24, 2015. Dietzel
    apparently takes the position that Wever’s implied duty of
    good faith and fair dealing arose prior to the execution of the
    subcontract. We have said that in order for the covenant of
    good faith and fair dealing to apply, there must be in existence
    a legally enforceable contractual agreement. Acklie v. Greater
    Omaha Packing Co., 
    306 Neb. 108
    , 
    944 N.W.2d 297
     (2020).
    At least one court has expressly held that the duty of good
    faith and fair dealing is not imposed until an agreement has
    been reached and that a plaintiff must rely on other theories of
    recovery for alleged deception prior to a contract being formed.
    See Husman, Inc. v. Triton Coal Co., 
    809 P.2d 796
     (Wyo.
    1991). We nonetheless assume for the purpose of our analysis
    that Wever was bound by the covenant of good faith and fair
    dealing when it discovered the hard rock.
    [8-10] The implied covenant of good faith and fair dealing
    exists in every contract and requires that none of the parties do
    anything which will injure the right of another party to receive
    the benefit of the contract. In re Application of Northeast Neb.
    Pub. Power Dist., 
    300 Neb. 237
    , 
    912 N.W.2d 884
     (2018). The
    nature and extent of an implied covenant of good faith and fair
    dealing are measured in a particular contract by the justifiable
    expectations of the parties. 
    Id.
     Where one party acts arbitrarily,
    capriciously, or unreasonably, that conduct exceeds the justifi-
    able expectations of the second party. 
    Id.
     The question of a
    party’s good faith in the performance of a contract is a question
    of fact. Spanish Oaks v. Hy-Vee, 
    265 Neb. 133
    , 
    655 N.W.2d 390
     (2003).
    We find no clear error in the district court’s conclusion that
    Wever did not breach the implied covenant of good faith and
    fair dealing. For reasons we have already explained, the dis-
    trict court did not clearly err by finding that Dietzel could not
    justifiably rely on Dezort’s email to believe that only schist
    would be encountered in the excavation. The same evidence
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    that supports that conclusion supports a conclusion that Wever
    did not breach the implied covenant of good faith and fair
    dealing. If Dietzel could not justifiably rely on Dezort’s email
    to believe the work involved only schist, we do not see how it
    could justifiably expect to be informed if Wever encountered
    rock other than schist, nor do we see how Wever could be said
    to have acted arbitrarily, capriciously, or unreasonably by not
    disclosing that information.
    3. Adequate Assurances
    (a) Additional Background
    Dietzel’s next two assignments of error pertain to its conten-
    tion that when it abandoned the project in October 2015, it was
    legally entitled to do so. In order to discuss these assignments
    of error, it is necessary to set forth a fairly detailed discussion
    of the way in which parties on the project were paid.
    The parties entered into what they refer to as a “paid-when-
    paid” contract. The phrase “paid-when-paid” refers to the fact
    that Wever was contractually required to make payment to
    Dietzel only after it received payment from MasTec. The con-
    tract provided that Wever was to make payment within 7 days
    of receiving payment from MasTec.
    Dietzel sent Wever two types of invoices. One type sought
    “progress payments” under the contract—the payment Dietzel
    was owed for the percentage of work it had completed from its
    scope of work. The other sought payment of “change orders”—
    a request for payment for additional work Dietzel claimed was
    not covered by the contract. Wever was then expected to sub-
    mit these requests for payment, with a contractually authorized
    markup, to MasTec.
    Dietzel submitted an invoice to Wever dated July 1, 2015,
    for progress payments for April, May, and June. Wever sent
    checks to Dietzel for progress payments in July, August, and
    September: It sent Dietzel a check for $41,706 dated July 17,
    2015; a check for $68,708 dated August 10, 2015; and a check
    for $15,143.06 dated September 30, 2015. Kathryn Hisel, the
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    chief financial officer of Wever, testified that it often took
    MasTec 60 to 90 days after Wever sent a bill to send a payment
    to Wever.
    Dietzel submitted its first change order for excavating hard
    rock on July 19, 2015. The change order sought payment of
    $328,507.
    The owner of Wever, James Wever, testified that he attended
    a meeting in late July 2015 in which the change order was dis-
    cussed. James Wever testified that Andrew Dietzel and repre-
    sentatives of BG&E and MasTec were also present. According
    to James Wever, BG&E and MasTec did not commit to paying
    the change order, but did agree to review it and provide them
    with an answer “at a later time.”
    Dietzel employees made inquiries with Wever regarding the
    status of the change order after it was submitted. On August
    6, 2015, a Dietzel employee emailed Dayna Wever, Wever’s
    president, and asked about the change order. Dayna Wever
    responded:
    [T]he rock change order is out if [sic] our hands and is on
    the table with Mas[T]ec and BG[&]E. Change orders are
    not paid until approved by owner. We will pay you when
    and if we are paid. . . . As I told Andrew [Dietzel] in our
    phone conversation last week, I am emailing and asking
    about it everyday [sic] and when we hear something I will
    definitely pass it on to you!!
    On August 14, 2015, Dietzel submitted a second change
    order for excavating hard rock, requesting an additional
    $73,943.
    Hisel and Dezort testified that Dietzel’s change orders were
    submitted to MasTec. Dezort testified that when a change
    order was pending, Wever would “keep on asking [about] the
    status of that change order during the duration of the project.”
    Andrew Dietzel acknowledged during his testimony that no
    one at Wever ever disputed his change order requests, indi-
    cated that they were rejecting a change order request, or stated
    that they would not pursue the change orders.
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    At some point, BG&E clarified that it would not grant
    Dietzel’s change orders related to rock excavation until 288
    cubic yards of rock had been excavated. On September 7,
    2015, Andrew Dietzel communicated to Wever by email that,
    unless its change orders were granted, Dietzel would not
    excavate where it had encountered hard rock. In response,
    Wever sent a letter explaining it had “pursued a change order
    with MasTec and BG[&]E on [Dietzel’s] behalf”; that pursu-
    ant to the subcontract, it would pay Dietzel only if it first
    received payment; and that MasTec and BG&E had denied the
    change order request until 288 cubic yards of rock had been
    excavated.
    On September 24, 2015, Dietzel sent a letter requesting that
    Wever provide assurance within 7 days that it was “pursuing
    Dietzel’s claims for outstanding progress payments and change
    orders” and that it would “receive payment of these outstanding
    amounts.” On September 25, Dayna Wever forwarded Andrew
    Dietzel an email from a representative of MasTec. The MasTec
    representative had asked in his email, “Which foundations hit
    undrillable rock?” Andrew Dietzel responded with information
    about the specific foundations.
    On October 5, 2015, Dietzel abandoned the project. Andrew
    Dietzel sent Dayna Wever a letter explaining Dietzel’s decision
    to leave. Among the reasons he cited were Wever’s failure to
    provide assurances of payment and failure to provide docu-
    mentation that it was “prosecuting Dietzel’s claims.” Based on
    these failures and others, Andrew Dietzel wrote, Dietzel con-
    sidered Wever in material breach of the contract. The district
    court found that Dietzel committed the first material breach of
    the contract when it abandoned the project.
    (b) Analysis
    Dietzel argues that the district court erred by finding
    that it committed the first material breach of the contract.
    Dietzel contends that when it did not receive adequate assur-
    ance that Wever was pursuing its change order requests with
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    MasTec and that Wever would pay Dietzel for its change
    order requests, Dietzel had the right to suspend contractual
    performance.
    Dietzel cites the Restatement (Second) of Contracts § 251
    (1981) to argue that it had the right to request assurance
    of Wever’s performance of the subcontract and that because
    Wever did not provide such adequate assurance within a rea-
    sonable time, Dietzel was permitted to treat the failure as a
    repudiation of the subcontract. While this court has not yet
    adopted § 251 of the Restatement, see McKinnis Roofing v.
    Hicks, 
    282 Neb. 34
    , 
    803 N.W.2d 414
     (2011), we need not
    decide whether to adopt it here, because, even if we were to
    adopt it, Dietzel cannot show that it would apply.
    Section 251 states:
    (1) Where reasonable grounds arise to believe that
    the obligor will commit a breach by non-performance
    that would of itself give the obligee a claim for damages
    for total breach under § 243, the obligee may demand
    adequate assurance of due performance and may, if rea-
    sonable, suspend any performance for which he has not
    already received the agreed exchange until he receives
    such assurance.
    (2) The obligee may treat as a repudiation the obligor’s
    failure to provide within a reasonable time such assurance
    of due performance as is adequate in the circumstances of
    the particular case.
    Restatement (Second) of Contracts § 251 at 276-77.
    Dietzel argues that Wever was obligated to assure it that it
    was “prosecuting” Dietzel’s change orders with MasTec and
    that it would pay Dietzel for its change orders. But Wever
    would have such an obligation under § 251 only if Dietzel had
    “reasonable grounds . . . to believe” that Wever would “com-
    mit a breach by non-performance.” Viewing the evidence in
    the light most favorable to Wever, we cannot say that Dietzel
    had reasonable grounds to believe that Wever was or would be
    committing a breach.
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    Significant evidence was introduced at trial showing that
    Dietzel did not have reasonable grounds to believe that Wever
    was not pursuing payment of the change orders. Wever employ-
    ees testified that Dietzel’s change orders were submitted to
    MasTec. Andrew Dietzel acknowledged that no one at Wever
    suggested otherwise. Beyond that, there was testimony that
    Andrew Dietzel was present at a meeting with James Wever
    and representatives from BG&E and MasTec in which the first
    change order was discussed. Further, Dayna Wever’s email to
    a Dietzel employee stated that Dayna Wever was repeatedly
    asking MasTec about it and she had told Andrew Dietzel as
    much. Finally, the September 9, 2015, letter informed Dietzel
    that Wever had “pursued a change order with MasTec and
    BG[&]E on your behalf.”
    Faced with all this evidence that Wever was submitting its
    change orders and pressing MasTec to approve them, Dietzel
    focuses on the September 25, 2015, email Dayna Wever for-
    warded to Andrew Dietzel, in which a MasTec representa-
    tive asked, “[w]hich foundations hit undrillable rock?” Dietzel
    argues that this email shows that Wever had not been submit-
    ting its change orders because the MasTec representative did
    not know that Dietzel had been excavating undrillable rock.
    This does not strike us as a likely interpretation, let alone the
    only reasonable one. Taken at face value, the question simply
    sought clarification on which foundations were at issue.
    Based on the evidence that Wever was consistently com-
    municating that the change orders were being pursued, as
    well as the evidence that Dietzel had actual knowledge that
    the July 2015 change order was submitted, Dietzel did not
    have reasonable grounds to believe that Wever had or would
    breach any obligation with respect to the pursuit of Dietzel’s
    change orders.
    We also conclude that at the time of its September 24, 2015,
    letter requesting assurances, Dietzel did not have reasonable
    grounds to believe that Wever would breach the subcontract
    by not making payment on its change orders. Here, it was not
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    enough for Dietzel to show that it had a reason to believe that
    it might not receive payment for all the change orders it sub-
    mitted. Rather, Dietzel must have had reasonable grounds to
    believe that Wever would breach the subcontract by not pay-
    ing its change orders. See Restatement (Second) of Contracts
    § 251 at 276 (obligation to provide assurance applies “[w]here
    reasonable grounds arise to believe that the obligor will com-
    mit a breach by non-performance”). This distinction is relevant
    because of the paid-when-paid clause. Because the subcontract
    obligated Wever to make payment only if it received pay-
    ment from MasTec, Dietzel must show that it had reasonable
    grounds to believe that Wever might receive payment from
    MasTec on a Dietzel change order and refuse to pass along
    payment to Dietzel. The evidence does not support a finding
    that Dietzel had reasonable grounds to believe this. At the time
    that the request for assurances was made, Wever had timely
    made contractually obligated payments to Dietzel, and Dietzel
    does not direct us to anything in the record suggesting that it
    would not do so in the future.
    4. Material Breach
    (a) Additional Background
    In addition to its adequate assurances theory, Dietzel con-
    tends that it was also legally entitled to abandon the project
    on October 5, 2015, because Wever had materially breached
    the contract. Its claim of material breach rests on Wever’s
    receipt of a payment from MasTec on September 22 and fail-
    ure to make payment to Dietzel for the portion to which it was
    entitled by September 29, as required by the paid-when-paid
    clause.
    There appears to be no dispute that Wever did, in fact,
    receive payment from MasTec on September 22, 2015. On
    September 30, Dayna Wever emailed Andrew Dietzel stating
    that Wever had received a payment from MasTec and would
    be sending Dietzel its contractually required portion promptly.
    The district court found that Dietzel received the check for
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    $15,143.06 on October 6, which was 1 day after it abandoned
    the jobsite.
    The district court determined that because the payment was
    not made by the time required by the subcontract, Wever com-
    mitted a breach. The district court concluded, however, that
    the breach was not material and that thus, Dietzel’s nonper­
    formance of the contract was not excused.
    (b) Analysis
    [11,12] Dietzel argues that the district court erred when
    it found that Wever’s untimely payment was not a material
    breach of the subcontract. A material breach is a failure to do
    something that is so fundamental to a contract that the failure
    to perform that obligation defeats the essential purpose of the
    contract or makes it impossible for the other party to perform
    under the contract. Siouxland Ethanol v. Sebade Bros., 
    290 Neb. 230
    , 
    859 N.W.2d 586
     (2015). A material breach will
    excuse the nonbreaching party from its performance of the
    contract. 
    Id.
     Unless there is only one reasonable conclusion
    regarding the issue, in which case a court decides the issue as
    a matter of law, whether a breach was material is a question of
    fact. See 
    id.
    We understand Dietzel to primarily argue that any delayed
    payment to a construction contractor is a material breach as a
    matter of law. Dietzel claims that because timely payment to
    a contractor is critical to the contractor’s ability to cover its
    expenses and continue working, delayed payments are always
    material breaches. We are not persuaded.
    [13] We have said that whether or not a breach is mate-
    rial and important is a question of degree which must be
    answered by weighing the consequences of the breach in
    light of the actual custom of persons in the performance of
    contracts similar to the one involved in the specific case.
    Siouxland Ethanol, supra. A test that considers the degree
    and consequences of the breach does not lend itself to the
    kind of bright-line rule Dietzel asks us to adopt. Furthermore,
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    this does not appear to be the prevailing rule in construction
    law. A construction law treatise relied on by Dietzel states,
    “Nonpayment [of a construction contractor] for limited periods
    or in insignificant amounts, while annoying, rarely are deemed
    to constitute material breaches.” 5 Philip L. Bruner & Patrick
    J. O’Connor, Jr., Bruner and O’Connor on Construction Law,
    § 18:26 at 959 (2002). A case Dietzel cites similarly disavows
    the “suggest[ion] that every delay in payment will justify a
    contractor in terminating performance under an installment
    contract.” Zulla Steel, Inc. v. A & M Gregos, Inc., 
    174 N.J. Super. 124
    , 132, 
    415 A.2d 1183
    , 1187 (1980).
    Dietzel nonetheless maintains that under Nebraska law,
    delayed payments to contractors are material breaches. In sup-
    port of this argument, Dietzel relies on a fairly recent case,
    Goes v. Vogler, 
    304 Neb. 848
    , 
    937 N.W.2d 190
     (2020), and
    a very old one, Howard County v. Pesha, 
    103 Neb. 296
    , 
    172 N.W. 55
     (1919). While Goes affirmed a district court’s find-
    ing that a particular nonpayment to a contractor was material,
    we did not hold that all such delayed payments are material.
    As for Howard County, in that case, this court did find that a
    county’s failure to pay a contractor as required by the contract
    entitled the contractor to suspend performance. And, to be fair,
    the court quoted some language from other jurisdictions that
    could be read to suggest that the failure to make payments to
    a contractor as required justifies the contractor in abandon-
    ing the work. That said, in more than a century since Howard
    County was published, we do not appear to have ever cited
    the case in a published decision and the idea that any delay
    in paying a construction contractor is a material breach as a
    matter of law is inconsistent with our material breach juris-
    prudence. To the extent Howard County suggests otherwise, it
    is disapproved.
    Of course, none of this precluded Dietzel from contend-
    ing that, under the circumstances of this case, Wever’s delay
    in payment amounted to a material breach. The district court
    rejected that argument, however, and therefore, we may reverse
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    its factual determination only if we find that it was clearly
    wrong. We do not believe it was. When Dietzel abandoned the
    project, the payment was about a week late, but Wever had
    communicated to Dietzel 1 day after the payment was due that
    it would be forthcoming. That is the only evidence we have
    of Wever’s making a late payment under the contract. Further,
    Dietzel does not contend that Wever ultimately paid less than
    the amount due, and the amount paid was relatively small in
    comparison to the overall value of the contract. Neither does
    Dietzel direct us to any specific evidence in the record that
    without this payment, it would have been unable to continue
    its work.
    For the reasons provided above, we find the district court
    did not err in concluding that Dietzel committed the first mate-
    rial breach of the parties’ contract.
    5. Damages
    (a) Additional Background
    Wever relied on testimony from Hisel in an attempt to prove
    damages for Dietzel’s alleged breach of contract. Hisel testi-
    fied about several expenses Wever incurred in the course of the
    transmission line project. For each such expense, she identified
    a specific amount for which Wever was claiming damages. She
    testified that she arrived at those amounts by taking expenses
    Wever incurred and increasing them by 15 percent pursuant
    to a contractual term which permitted Wever to add a markup
    to expenses incurred by Dietzel. With respect to most of the
    expenses she testified to, Hisel testified that they were costs
    Wever incurred after Dietzel had left the job. She admitted,
    however, that some of the expenses Wever incurred prior to
    Dietzel’s departure.
    In addition to expenses incurred by Wever, Hisel briefly
    testified that as a result of Dietzel’s actions, Wever lost the
    ability to complete a segment of the transmission line project
    and that, as a result, Wever lost $1,795,317. She testified that
    number “was what [the lost segment] was supposed to be, our
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    gross proceeds.” She did not further explain how the number
    was calculated. Hisel also testified that her calculations did not
    include an amount for the loss of future work with MasTec,
    because there was “no way to give that an actual number.”
    The district court received a spreadsheet summarizing Hisel’s
    testimony regarding the damages sought by Wever. The spread-
    sheet included expenses Wever incurred, as well as a line item
    for “Lost Revenue” for the “Lost Segment” of the project in
    the amount of $1,795,317. Those items totaled $4,263,479.99.
    On cross-examination, the district court received into evi-
    dence several invoices corresponding to Wever’s claimed dam-
    ages. These exhibits showed some additional expenses ref-
    erenced by Hisel were incurred before Dietzel abandoned
    the jobsite. Hisel also admitted on cross-examination that
    the invoices demonstrated that when she had increased the
    expenses to account for the contractual markup, she had erro-
    neously increased the expenses by 20 percent rather than 15
    percent. Additional details about the evidence related to dam-
    ages are incorporated in the analysis below.
    The district court found that Wever was entitled to damages
    that resulted from Dietzel’s materially breaching the contract
    when it abandoned the jobsite. It stated that it found that
    Dietzel’s abandonment resulted in damages to Wever, includ-
    ing the loss of a portion of the project. It acknowledged that
    evidence and testimony at trial revealed calculation errors in
    Wever’s claimed damages, but found that Wever proved dam-
    ages proximately caused by Dietzel’s breach in the amount of
    $2,758,250.47. The district court specifically stated that this
    damages amount was for damages caused by Dietzel’s aban-
    doning the project.
    The district court also noted an argument from Wever that
    it suffered damages in the form of lost profits from jobs that
    it could have otherwise completed while it was completing
    this project and from future work with MasTec. The district
    court then stated, “The Court finds that Wever failed to prove
    its claims for lost profit related to future MasTec jobs or
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    other lost profit as proximately caused by Dietzel’s breach
    of contract.”
    The district court offset its damages award to Wever by
    $328,507, an amount it found Wever had been unjustly enriched
    by Dietzel. After including the offset, it found that Wever was
    entitled to $2,429,743.47. Wever does not challenge the unjust
    enrichment damages on appeal.
    (b) Analysis
    Dietzel argues that even if the district court did not err in
    finding it liable for breach of contract, it erred in its calcula-
    tion of Wever’s damages. It argues that the evidence does not
    support the amount of damages awarded by the district court.
    Before addressing Dietzel’s arguments, we briefly review the
    governing legal standards.
    [14,15] We have said that “damages, like any other element
    of the plaintiff’s [cause of action], must be pled and proved and
    that the burden is on the plaintiff to offer evidence sufficient
    to prove the plaintiff’s alleged damages.” Pan v. IOC Realty
    Specialist, 
    301 Neb. 256
    , 276, 
    918 N.W.2d 273
    , 291 (2018).
    Evidence of damages must be sufficient to enable the trier of
    fact to estimate actual damages with a reasonable degree of
    certainty and exactness. 
    Id.
     Proof of damages to a mathemati-
    cal certainty is not required; however, a plaintiff’s burden of
    offering evidence sufficient to prove damages cannot be sus-
    tained by evidence which is speculative and conjectural. 
    Id.
    Although the standard of review on appeal for the amount of
    damages is generally deferential to the trier of fact, the ques-
    tion of whether the evidence of damages is reasonably certain
    is a question of law. See, 
    id.
     (damages award “will not be dis-
    turbed on appeal if it is supported by evidence and bears a rea-
    sonable relationship to the elements of the damages proved”);
    Pribil v. Koinzan, 
    266 Neb. 222
    , 227, 
    665 N.W.2d 567
    , 572
    (2003) (“[w]e have consistently framed the question whether
    the evidence of damages is ‘reasonably certain’ as a question
    of law . . .”).
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    (i) Expenses Incurred Before
    Dietzel Abandoned Jobsite
    Dietzel argues that a number of the expenses Hisel testified
    to cannot support the district court’s damages award because
    the evidence shows that they were incurred prior to Dietzel’s
    abandonment of the project. Dietzel argues that the following
    expenses fall into that category: expenses associated with the
    rental and delivery of an auger; the rental, delivery, repair, and
    return of a “Watson” drill; the rental of a hammer drill and
    compressor; “slurry”; and a lump sum requested for miscella-
    neous equipment Wever rented from United Rentals; as well as
    various expenses from Greene Construction.
    We agree with Dietzel as to the auger delivery, Watson
    drill delivery and repair, hammer drill and compressor, and
    slurry, because the undisputed evidence showed those were
    expenses Wever incurred before Dietzel abandoned the jobsite.
    As for the other expenses, invoices received by the district
    court show that an identifiable portion of the expenses were
    incurred after Dietzel departed. We find that the evidence
    would thus support an award of damages for those identifiable
    portions. Adjusting for Hisel’s calculation error on the contrac-
    tual markup, we find that the evidence would support award-
    ing Wever $4,443.60 for the return of the Watson drill, $1,886
    for the expenses from Greene Construction, and $5,942.63 for
    the auger rental.
    This leaves the costs for renting the Watson drill and the
    miscellaneous rentals from United Rentals. We find the evi-
    dence for these two expenses suffer from the same deficiency:
    The finder of fact would have been forced to speculate as to
    what amount of the requested damages were incurred after
    Dietzel abandoned the jobsite.
    On the Watson drill, the record is inadequate to determine
    with reasonable certainty what portion of the damages were
    related to the drill and Dietzel’s abandonment of the jobsite.
    Although the record includes invoices for those months after
    Dietzel’s departure, the invoices list a single price for the
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    Watson drill and a “2012 John Deere 350G-LC Excavator.”
    The record is devoid of any references to whether or not this
    additional excavator was somehow connected to the Watson
    drill, whether it was necessary to perform work Dietzel would
    have performed after Dietzel abandoned the jobsite, or what
    portion of the invoices could be attributed to the Watson drill.
    Without such evidence, the finder of fact would be left to
    only speculate about what damages would be appropriate to
    award to Wever for the rental of the Watson drill.
    As for the rental expenses from United Rentals, the extent
    of Hisel’s testimony on those expenses was that they were
    incurred “when we started having to rent more support stuff
    to perform their scope” and that Wever began to incur the
    expenses in August 2015, which was prior to Dietzel’s leaving
    the project. Hisel did not identify what equipment was rented,
    for how long Wever rented it, or if all of the equipment was
    rented for the same period of time. We find no basis in the
    evidence by which to estimate what portion of these expenses
    were incurred after Dietzel abandoned the jobsite. Thus, we
    find that the record does not support awarding Wever damages
    for equipment rented from United Rentals.
    (ii) “SR-80” Drill
    Wever presented evidence that it excavated holes after
    Dietzel’s departure using a rented “SR-80” drill (SR-80). Hisel
    testified that expenses for the SR-80 after Dietzel left the job-
    site amounted to $418,382.62. Dietzel argues that the damages
    for the SR-80 are unrelated to Dietzel’s abandonment of the
    jobsite. Here, Dietzel presents several points, and we address
    them in turn.
    Dietzel argues that the SR-80 costs are unrelated to Dietzel’s
    abandonment of the jobsite. It contends that MasTec reim-
    bursed Wever for some of the expenses associated with the
    SR-80 and that the SR-80 was not within Dietzel’s scope of
    work. We disagree. Hisel testified that the only damages she
    requested for the SR-80 were not reimbursed by MasTec. She
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    also testified that Wever used the SR-80 to excavate holes
    after Dietzel abandoned the jobsite. Dietzel also argues that
    invoices received into evidence demonstrate that Wever rented
    the SR-80 prior to Dietzel’s departure. There are invoices
    indicating as much, but Hisel testified that she had identified
    expenses Wever incurred after Dietzel’s abandonment.
    Finding no merit to Dietzel’s arguments specific to the
    SR-80, we find that the record provided competent evidence
    by which to conclude that Wever had been damaged by the
    continued use of the SR-80 after Dietzel abandoned the job-
    site. However, because Hisel acknowledged that the requested
    amount incorrectly added a 20-percent markup rather than one
    of 15 percent, we adjust the amount for which the evidence
    supported a damages award accordingly. We find that the evi-
    dence would support an award of $400,950.01 for expenses
    associated with the SR-80.
    (iii) Operators and Administrative Expenses
    Wever requested $538,162.50 in damages for what it
    labeled “Operators Expense” and $234,000 for administrative
    expenses. Hisel testified that the first category was determined
    by multiplying 7,174.5 hours by a billed rate of $75 per hour.
    Hisel testified that this expense was for the additional time “it
    took [for Wever employees] to run a drill rig” after Dietzel
    abandoned the jobsite. She also said that she was “trying to
    recoup[]” money Wever spent on additional hotels, per diems,
    rental pickups, and other miscellaneous expenses. She testified
    that the administrative expenses were calculated by multiplying
    3,120 hours by a billed rate of $75 per hour. Hisel testified that
    this expense reflected the additional time Dezort and Dayna
    Wever spent at the jobsite and that she and other “coordina-
    tors” spent managing the project.
    Hisel testified that in using the $75 per hour rate, she “was
    just trying to use a medium range cost that could . . . easily be
    backed up between the hourly wages and the per diem and the
    hotels and meals.” She testified that Wever billed at $110 per
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    hour for their superintendents’ time and “about $85” per hour
    for its laborers’ time.
    Dezort testified that Wever originally planned on a crew
    of eight people for the project. He also testified that Wever
    “ended up sticking probably about 3 of our crews on this job”
    and “the job ended up taking about 6 months longer than it
    should have.” Earlier, Dezort had testified that “[f]or smaller
    jobs, [Wever] ran about five crews, five guys per crew.”
    Dietzel argues that awarding Wever damages for operators
    and administrative expenses requested by Wever would have
    been clear error, because the evidence was speculative and
    conjectural. Viewing the evidence in the light most favorable
    to the Wever, we disagree.
    Hisel’s testimony about the additional work completed by
    Wever employees and how she arrived at $75 per hour, if cred-
    ited, would provide the finder of fact a reasonably certain basis
    to determine that Wever was damaged and the extent of those
    damages. Dezort’s testimony about the additional man-hours
    required by Wever employees further supported the existence
    and scope of the damages. We conclude that the amounts
    requested for operators and administrative expenses, in the
    amounts of $538,162.50 and $234,000, respectively, were sup-
    ported by the evidence. These amounts were not affected by
    Hisel’s calculation error for other damages requested, so these
    amounts remain unaltered.
    (iv) Auger Purchase
    Hisel testified that Wever was forced to purchase an auger
    after Dietzel abandoned the jobsite and requested damages in
    the amount of $33,391.78. Dietzel argues that awarding Wever
    damages for this auger would be clear error, because Wever
    can still use the auger.
    We find there was sufficient evidence to support an award
    of damages for this expense. Wever offered evidence that it
    was forced to purchase the auger because Dietzel abandoned
    the jobsite. Hisel testified that Wever rented equipment unless
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    it could not do so. Although Hisel acknowledged that Wever
    still owns the auger, nothing in the record suggests that Wever
    would have purchased the auger at a later date if it had not
    been forced to do so by Dietzel’s abandonment of the job-
    site. Accounting for Hisel’s calculation error, we find that the
    record would support $32,000.46 in damages for the purchase
    of the auger.
    (v) Remaining Items
    Dietzel concedes that Wever presented sufficient evidence
    regarding several expenses that were attributable to Dietzel’s
    abandonment of the jobsite, including costs associated with
    an “IMT” drill, moving drill rigs, and “[d]rilling [m]ud.”
    Accounting for Hisel’s calculation error, we find the evidence
    supported a damages award for these expenses in the amount
    of $217,229.73.
    Hisel also testified regarding a number of other expenses to
    which Dietzel does not present specific arguments on appeal.
    Therefore, we presume that the record contained adequate sup-
    port for the district court to award Wever damages for those
    items. See Nathan v. McDermott, 
    306 Neb. 216
    , 
    945 N.W.2d 92
     (2020) (to be considered by appellate court, alleged error
    must be both specifically assigned and specifically argued in
    brief of party asserting error). These items include expenses for
    equipment from Jeffrey Machine, “Vac Trucks,” “Frac Tanks,”
    steel casing, concrete, and “Teeth.” Accounting for Hisel’s cal-
    culation error, these expenses amount to $308,289.10.
    (vi) Lost Revenue
    Hisel briefly testified that Wever lost $1,795,317 in “gross
    proceeds” because, as a result of Dietzel’s breach, it was not
    permitted to complete its work on a segment of the project.
    Wever’s damages spreadsheet also listed this amount as “Lost
    Revenue.”
    Dietzel argues that the district court specifically found that
    Wever was not entitled to any recovery for the lost segment
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    of the project. It is not so clear to us that is the case. Dietzel
    points to the language quoted above in which the district court
    stated that Wever “failed to prove its claims for lost profit
    related to future MasTec jobs or other lost profit as proxi-
    mately caused by Dietzel’s breach of contract.” That language,
    however, immediately follows a reference to Wever’s claims
    for lost profits from future work with MasTec or other work it
    could have completed while finishing this project. Even so, we
    agree with Dietzel that the evidence did not support an award
    of damages for the segment of the project Wever was not able
    to complete.
    [16] Hisel asserted in her testimony that if Dietzel’s breach
    had not caused Wever to lose a segment of the project,
    Wever’s “gross proceeds” or “lost revenue” would have been
    $1,795,317. Wever was not entitled to an award of damages for
    lost revenue. In a breach of contract case, the ultimate objec-
    tive of a damages award is to put the injured party in the same
    position the injured party would have occupied if the contract
    had been performed, that is, to make the injured party whole.
    TNT Cattle Co. v. Fife, 
    304 Neb. 890
    , 
    937 N.W.2d 811
     (2020).
    An award of lost revenue, however, would have made Wever
    more than whole, because it would not account for the addi-
    tional expenses Wever would have incurred to complete the
    work for which it would have received the lost revenue.
    [17] A party can, with adequate evidence, recover lost prof-
    its. See, e.g., Aon Consulting v. Midlands Fin. Benefits, 
    275 Neb. 642
    , 
    748 N.W.2d 626
     (2008). Here, however, Wever’s
    evidence was not adequate. Hisel did not provide any mean-
    ingful explanation as to how the $1,795,317 figure for “gross
    proceeds” was calculated, let alone what Wever’s expenses
    likely would have been to earn those proceeds. A claim for lost
    profits must be supported by some financial data which permit
    an estimate of the actual loss to be made with reasonable certi-
    tude and exactness. World Radio Labs. v. Coopers & Lybrand,
    
    251 Neb. 261
    , 
    557 N.W.2d 1
     (1996). We note that even Wever
    appears to recognize the frailty of its claim for an award of
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    damages for lost revenue associated with the lost segment of
    the project. On redirect, Wever’s counsel asked Hisel what
    Wever’s recovery would be if the lost revenue evidence was
    completely deficient, and on appeal, Wever does not attempt
    to argue that its evidence supported an award for lost revenue
    associated with the lost segment of the project.
    (vii) Summary
    Considering each of the above, we find that viewing the evi-
    dence in the light most favorable to Wever, the record would
    support awarding Wever damages for the following expenses in
    the following dollar amounts:
    Item                                Amount
    Operator’s Expense               $ 538,162.50
    Administrative Expense              234,000.00
    SR-80                               400,950.01
    Watson Drill Return                   4,443.60
    Greene Construction                   1,886.00
    90˝ Auger Rental                      5,942.63
    90˝ Auger Purchase                   32,000.46
    IMT Drill                           185,769.85
    Moving Drill Rigs                    27,370.00
    Drilling Mud                          4,089.88
    Jeffrey Machine                      42,006.96
    Vac Trucks                           98,673.11
    Frac Tanks                           17,940.59
    Steel Casing                         66,936.13
    355.89 CY Concrete                   80,626.88
    Teeth                                 2,105.43
    TOTAL                            $1,742,904.03
    Because the evidence would not support the entirety of
    the damages awarded by the district court, we must reverse
    that portion of the judgment and remand the cause to the dis-
    trict court with directions to enter judgment in the amount of
    $1,742,904.03.
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    V. CONCLUSION
    We find that the district court did not err by rejecting
    Dietzel’s claims of negligent misrepresentation and breach
    of the implied covenant of good faith and fair dealing. We
    likewise find no error in the district court’s conclusions that
    Dietzel was not entitled to suspend contractual performance
    due to Wever’s failure to provide adequate assurances and that
    Dietzel committed the first material breach of the contract.
    Because, however, we find that the evidence did not sup-
    port the entirety of the damages awarded by the district court,
    we reverse the district court’s damages award and remand the
    cause to the district court with directions to enter judgment
    against Dietzel and in favor of Wever on Wever’s breach of
    contract claim in the amount of $1,742,904.03 and, taking
    into account the offset for Wever’s unjust enrichment liabil-
    ity, to order that Dietzel is liable to Wever in the amount of
    $1,414,397.03. In all other respects, the judgment of the dis-
    trict court is affirmed.
    Affirmed in part, and in part reversed
    and remanded with directions.