34 Neb. App. 329
Neb. Ct. App.2026Background
- Nemaha County hired Vogtscapes as general contractor to replace a county bridge with a concrete box culvert, and Vogtscapes subcontracted dirt work to Nebraska Digging. 1
- The contract was a $752,311 lump-sum agreement allowing changes only by written change order, and no written change order was ever executed. 2
- The contract required Vogtscapes to coordinate stockpile location with the County and made Mainelli Wagner responsible for supervision and contract-interpretation questions. 3
- The parties later agreed the dirt stockpile had to be moved to complete the project, and Nebraska Digging claimed the relocation was extra work requiring additional compensation. 4
- Appellants presented evidence that, at an October 2023 meeting, Britt and Weiss discussed moving the stockpile as a project overrun and told Nebraska Digging not to pursue a written change order. 5
- The district court granted summary judgment for Nemaha County, finding the work was contemplated by the contract and that Appellants failed to obtain a written change order. 6
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper despite factual disputes over extra work 7 | Appellants said material factual disputes existed about waiver and oral modification. | Nemaha County said the contract was unambiguous and no written change order existed. | Summary judgment reversed; factual disputes precluded judgment. 8 |
| Whether the written change order provision was waived or orally modified 9 | Appellants said County agents treated the relocation as compensable overrun work. | Nemaha County said no authorized person agreed to pay extra and no change order was approved. | A triable issue existed on waiver and oral modification. 10 |
Key Cases Cited
- D&M Roofing & Siding v. Distrib., Inc., 319 Neb. 707 (Neb. 2025) (de novo review of summary judgment 11)
- DH-1, LLC v. City of Falls City, 305 Neb. 23 (Neb. 2020) (contract interpretation and ambiguity are questions of law 12)
- Humphrey v. Smith, 311 Neb. 632 (Neb. 2022) (summary judgment standard; material facts and admissible evidence 13)
- D. K. Meyer Corp. v. Bevco, Inc., 206 Neb. 318 (Neb. 1980) (written change-order provisions may be waived by conduct; parties' performance shows contract intent 14)
- Griffin v. Geneva Industries, Inc., 193 Neb. 694 (Neb. 1975) (contract provisions may be waived, modified, rescinded, or abandoned by words or conduct 15)