Article courtesy of Michael Robson (Greenberg Traurig)
BCL Properties, Inc. v. Boyle, 314 Neb. 607, 991 N.W.2d 626 (2023)
Shawna Boyle hired BCL Properties, Inc. (“BCL”) to serve as general contractor on a residential project in Omaha, Nebraska. The parties entered into a written agreement and work commenced. As the job progressed, changes were made to the scope of work and materials to be used. BCL requested additional amounts from Boyle to cover these changes, but Boyle resisted. In response, BCL stopped work on the project, filed a construction lien and emailed Boyle an invoice and spreadsheet, which detailed work completed, amounts paid and amounts outstanding. Boyle refused to pay the outstanding balance and BCL filed suit in September 2019. In its complaint, BCL asserted claims for breach of contract, unjust enrichment and quantum meirut, and sought to foreclose its construction lien. Boyle responded with a counterclaim, asserting breach of contract, misrepresentation and violation of Nebraska’s Uniform Deceptive Trade Practices. The jury ultimately found in favor of BCL, awarding $193,037 for breach of contract and rejecting all of Boyle’s counterclaims. The district court also ordered foreclosure of the construction lien and awarded prejudgment interest and attorney fees to BCL. Boyle moved for a new trial, arguing that the court erred by excluding certain evidence and by failing to respond to a jury question before accepting the jury’s verdict. Alternatively, Boyle sought to alter or amend the judgment, contesting the awards of prejudgment interest and attorney fees.
On appeal, the court first addressed Boyle’s claim that not admitting BCL’s spreadsheet and invoice into evidence was improper. The court noted that, because Boyle did not formally offer these items as exhibits, make an offer of proof or use them as demonstrative evidence, she failed to preserve the issue for review. Next, the court considered whether the trial court improperly accepted the jury’s verdict before answering a written question from the jury about calculating damages. The record showed that the court intended to respond, but the jury returned its verdict before an answer could be provided. Ultimately, the appellate court found that the trial court’s actions were appropriate under the circumstances. Additionally, because Boyle did not object to the trial court’s procedure at the time, she waived her right to raise this issue on appeal.
The appellate court next considered the award of prejudgment interest. Nebraska law permits prejudgment interest “on money due on any instrument in writing.” The court concluded that the agreement between Boyle and BCL constituted an instrument in writing, as it was a written document intended to have legal effect, and clearly identified parties’ rights and obligations. While Boyle did not contest the existence of an instrument in writing, she argued that no money was due on the instrument because she disputed both the amount owed and BCL’s right to recover. The court rejected these arguments, noting that state law does not require claims be liquidated in order to recover prejudgment interest. Finally, the court addressed Boyle’s argument that the lower court erred in awarding attorney fees under the Nebraska Construction Lien Act. Here, the court agreed with Boyle. The court explained that not every foreclosure of a construction lien or prevailing claim under the NLCA warrants attorney fees. Rather, authorizing attorney fees requires something more; it requires an improper act that prevents a person from receiving a benefit to which they are entitled. Because BCL successfully foreclosed its construction lien and received all proper benefits, BCL was not improperly deprived. As such, the court vacated the attorney fee award.
