Houser v. American Paving Asphalt
907 N.W.2d 16
Neb.2018Background
- In 2008 Houser contracted with American Paving for a 3-inch asphalt overlay (plus $1,500 traction work and a later sealcoat), paying $19,000 total; the driveway began failing within a few years.
- Expert testing (2013) showed pavement thickness averaging ~2 inches and inadequate subgrade compaction; expert opined the driveway failed prematurely and did not meet contract specifications.
- Houser paid $5,660 for patch repairs (2012) and later paid $26,189.09 for a 2-inch overlay of the entire driveway; he also incurred inspection, deposition, and testing costs.
- County court awarded Houser $40,551.94 and $1,514 in sanctions for American Paving’s discovery failures; American Paving appealed to district court.
- American Paving filed a statement of errors late; the district court allowed it and reviewed the merits, reducing damages (disallowing the 2-inch overlay and some expert costs) but affirming patch repairs and sanctions.
- Nebraska Supreme Court reviewed whether the district court abused its discretion in permitting the untimely statement of errors and whether the awards (overlay, patch repairs, sanctions, costs) were supported.
Issues
| Issue | Plaintiff's Argument (Houser) | Defendant's Argument (American Paving) | Held |
|---|---|---|---|
| Whether district court should have limited review to plain error because American Paving filed statement of errors late | American Paving’s untimely filing should not permit full review; district court lacked power to extend time so only plain-error review allowed | District court can grant extension and consider the issues; the extension was properly granted | Court held district court abused its discretion in granting the extension here (delay due to defendant’s neglect); review limited to plain error |
| Whether 2-inch overlay was reasonable and necessary damages | Overlay was a reasonable, necessary repair/remedy to make driveway conform to contract; cost recoverable | Overlay was neither reasonable nor necessary as replacement beyond patching; cost unreasonable | Under plain-error review, Supreme Court found no plain error in county court’s award of the 2-inch overlay and reversed district court’s exclusion of overlay cost (overlay award reinstated) |
| Whether patch repairs ($5,660) were reasonable damages | Patch repairs were necessary and reasonable as stopgap prior to overlay | Repairs were unnecessary or excessive | No plain error; county court’s award for patch repairs affirmed |
| Whether $1,514 in discovery sanctions/attorney fees and $861.75 in costs were appropriate | Sanctions and costs were appropriate for late production and discovery failures | Sanctions/costs were improper or excessive | No plain error; sanctions ($1,514) and costs ($861.75) affirmed |
Key Cases Cited
- State v. Hausmann, 277 Neb. 819 (2009) (appellate court has inherent power to reconsider orders until divested of jurisdiction)
- Putnam v. Scherbring, 297 Neb. 868 (2017) (recognition of courts’ inherent powers)
- Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661 (2010) (discussion of inherent judicial power)
- Miller v. Brunswick, 253 Neb. 141 (1997) (refusal to consider errors when no timely statement of errors filed)