Schechinger v. Swain Constr., Inc.

DANIEL SCHECHINGER, APPELLEE, v. SWAIN CONSTRUCTION, INC., APPELLANT.

No. A-19-689.

NEBRASKA COURT OF APPEALS

August 11, 2020

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County, MARLON A. POLK, Judge, on appeal thereto from the County Court for Douglas County, CRAIG Q. MCDERMOTT, Judge. Judgment of District Court affirmed.

Damien J. Wright and Natalie M. Hein, of Welch Law Firm, P.C., for appellant.

Daniel Schechinger, pro se.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

BISHOP, Judge.

INTRODUCTION

After Daniel Schechinger bought a skid loader from Swain Construction, Inc. (Swain), he filed a claim against the corporation and its principal, Greg Armstrong, alleging misrepresentation of the actual hours that the machine had been in use. The county court for Douglas County, sitting as a small claims court, entered a judgment of $2,686, plus interest and costs, in Schechinger's favor against Swain. Armstrong was personally dismissed from the case. On Swain's appeal to the Douglas County District Court, the order of the small claims court was affirmed. Swain now appeals to this court, contending that a disclaimer in the terms of sale precluded reliance on any parol evidence and that the calculation of damages was incorrect. We affirm.

BACKGROUND

Swain is a corporation with a place of business in Omaha, Nebraska. For several years, Swain owned a particular "2003 Case 90XT" skid loader, and sometime before or around February 2019, Swain listed it for sale on a website as part of an online auction. Armstrong indicated that the terms for the sale provided that the skid loader was to be sold "'as is.'" Schechinger did not dispute that. The description for the skid loader included that it had "206 Hrs Showing."

Schechinger, a farmer, and his son saw the skid loader and its description on the auction website. They noted the description that said "206 hours." Schechinger's son said that on February 2, 2019, he telephoned Swain and asked one of its employees, "'Can those hours actually be true?'" The employee responded affirmatively and added, "'We didn't use it.'" Regarding the call, Schechinger said the employee was "just sure that [the skid loader] had 206 hours." The rest of Schechinger's dealings with Swain were through that same employee.

On February 6, 2019, Schechinger and his son went to Swain's place of business and test drove the skid loader in the presence of Swain's employee. Schechinger implied the test drive was limited due to it being "rough to drive." His son remembered that the employee had said the following about the skid loader: "'This thing's got 206 hours on it. We never use it. It's been sitting back here since I've worked here for seven or eight years and we rarely move it.'" Schechinger and his son both said they questioned the appearance of the skid loader. Schechinger's son believed it did not look like a 200-hour machine, especially considering its "bucket"; the employee had relayed that the bucket was "'probably from a different machine.'" Schechinger remembered that when he asked about the skid loader's appearance, the employee answered that it "sat around a lot, because it had some odd tires on it." Schechinger said he asked about the skid loader's bucket; the employee indicated that the bucket was not the original but was "brand new" and acquired from a transaction made "a while back." Schechinger's son said they were reassured "several times" that the skid loader was a 206-hour machine. Schechinger recalled that the employee was "sure" that the skid loader "sat back there and only had 206 hours."

The next day, on February 7, 2019, Schechinger was the successful bidder of the skid loader for a total of $18,551. On February 9, he went to pick up the skid loader from Swain. During that time, Swain's employee gave Schechinger the service records for the skid loader. According to Schechinger, the employee told him that he did not have to service the skid loader (right away) because it "'only'" had "'188 hours on it.'" The first page of the service records shows the most recent entry regarding service performed was in April 2014, when it reflected 188 hours of use.

After Schechinger left Swain, he noticed a second page in the service records which revealed more hours of use on the skid loader than he was told it had. Schechinger returned to Swain at some point and showed the employee what he had discovered. Schechinger said that the employee responded saying he must had given Schechinger the "'wrong file.'" But Schechinger had pointed out that the service records he had matched his skid loader; the invoice for the sale and service records given to Schechinger both refer to a skid loader of the same serial number. The employee then said he had told "'everybody'" that the skid loader only had "'206 hours on there.'"

The second page of service records shows service performed dating back to 2004. When the skid loader was serviced on April 26, 2010, it had 1,343 hours on its hour meter. However, onMay 17, the skid loader's hour meter read "000" after its "instrument cluster" was replaced that day. From that point until April 2014, the number of hours on the hour meter steadily increased to the last entry on the service records of 188 hours.

Armstrong confirmed that Swain's employee's communications with Schechinger happened before the purchase occurred. Armstrong thought that the employee made a "simple mistake" in saying that the skid loader "had 206 hours" from looking at the front page of the service records. The employee did not realize there was a second page but "probably -- maybe" should have looked at it. Armstrong asserted that the description of the skid loader was in regard to how many hours were "showing" rather than the "actual" hours which the skid loader had been in use. However, Schechinger testified that Swain's employee told him and his son over the cell phone that "it was actual hours." Schechinger felt that if he had known the amount of hours on the skid loader, he would not have been interested in it. If he would not have been reassured "so many times," that the skid loader had 206 hours on it despite its condition, Schechinger would not have placed a bid for it. He believed that each additional hour that the loader had been used, beyond 206 hours, devalued the skid loader by $2.

On February 20, 2019, Schechinger commenced this action in the small claims court against Swain and Armstrong, alleging that the defendants "misrepresented" the amount of hours on the skid loader. Schechinger claimed that he was assured that the hour meter on the machine he purchased showing 206 hours was correct, but that the service records he received upon picking up the machine indicated "1,550+ hours." He sought a judgment in his favor in the sum of $3,000, plus costs. An evidentiary hearing took place on March 13. Later that same day, the small claims court entered a judgment in favor of Schechinger against Swain in the amount of $2,686, plus interest and costs. Armstrong, in his personal capacity, was dismissed from the case with prejudice. On April 10, Swain appealed the judgment to the district court.

A hearing before the district court took place on June 18, 2019, at which Schechinger appeared pro se and Swain appeared with counsel. The bill of exceptions of the hearing in the small claims court was received in evidence. After hearing argument from each party, the district court took the matter under advisement. The next day, the district court issued an order in which it found that based on its review of the record the decision of the small claims court conformed to law and was supported by competent evidence. Therefore, the district court affirmed the judgment of the small claims court.

Swain timely appeals from the order of the district court.

ASSIGNMENTS OF ERROR

Swain claims that the small claims court erred (1) by failing to conclude that the "as is" terms of the sale precluded reliance on parol evidence of statements made prior to the sale and (2) in its calculation of damages.

STANDARD OF REVIEW

The district court and higher appellate courts generally review judgments from a small claims court for error appearing on the record. See, Neb. Rev. Stat. §§ 25-2733 and 25-2807 (Reissue 2016); Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014). When reviewing ajudgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. First Nat. Bank of Unadilla v. Betts, 275 Neb. 665, 748 N.W.2d 76 (2008). However, in instances when an appellate court is required to review cases for error appearing on the record, questions of law are nonetheless reviewed de novo on the record. Id.

In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict, which an appellate court will not disturb on appeal unless clearly wrong. And an appellate court does not reweigh the evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party. Griffith v. Drew's LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).

ANALYSIS

PAROL EVIDENCE

Swain claims that the disclaimer in the terms of the sale selling the skid loader "as is" should have been found to preclude reliance on parol evidence of statements made before the sale. Swain argues that under the facts of this case, the disclaimer is controlling and Schechinger cannot assert a claim under the sale contract based on "pre-sale statements" made by Swain's employee. Brief for appellant at 9. Swain argues that due to the disclaimer, Schechinger bore the "risk of mistake" as to the skid loader's hour meter and could have readily...