Spiehs v. City of Grand Island

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Tim and Lisa Spiehs, appellants, v. City of Grand Island, Nebraska, appellee.

No. A-22-289

Court of Appeals of Nebraska

January 24, 2023

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 Hall County: Andrew C. Butler Judge. Affirmed.

Galen E. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellants.

Dan H Ketcham and Samuel A. Huckle, of Engles, Ketcham, Olson &amp Keith, P.C., for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Moore, Judge.

INTRODUCTION

Tim and Lisa Spiehs filed a negligence action against the city of Grand Island, Nebraska (the city). The Spiehses claim that their property was damaged by the city's nearby excavation project. The district court of Hall County granted the city's motion for summary judgment on the basis that any damage incurred by the Spiehses was the responsibility of the independent contractors hired by the city to complete the project. We affirm.

STATEMENT OF FACTS

On December 29, 2017, the Spiehses filed a complaint against the city under the Political Subdivisions Tort Claims Act, alleging that they owned property adjacent to land on which the city conducted an excavation project. The Spiehses claimed that while the city "and its agents" were engaging in "earth moving activities," the activities resulted in damage to the Spiehses' property; including that their septic system was destroyed, their property floods and does not properly drain, their yard was damaged by the city's equipment, and a building on their property required repair and repainting after being hit by the city's machinery. The Spiehses also claim that vibrations from the city's equipment caused structural damage to their home and garage. Because of this alleged damage, the Spiehses had to pump their septic tank twice weekly, replace removed dirt and damaged sod, and add a concrete drainage system to prevent water from flooding their property.

Additionally, the Spiehses claimed that representatives of the city had assured the Spiehses that, in exchange for a temporary easement onto their property, the city would "add a tap at the manhole" located on city property adjacent to the Spiehses. However, despite repeated demands by the Spiehses, the city had refused to add a tap at that manhole.

The Spiehses requested a judgment against the city for $91,260.91 in damages, an order requiring the city to waive the "tap fee" of $7,500, and an order releasing all easements granted by the Spiehses to the city related to the excavation project.

On February 2, 2018, the city filed an answer to the Spiehses' complaint, noting that the complaint was untimely and violated the statute of limitations prescribed in the Political Subdivisions Tort Claims Act. The city requested that the complaint be dismissed, as the Spiehses had failed to state a claim upon which relief could be granted. On September 28, the city filed a motion for summary judgment.

An order filed by the district court on December 19, 2018, indicates that a hearing on the city's motion for summary judgment was held on November 1. A bill of exceptions from this hearing is not included in our record. The court summarized a timeline of the Spiehses' allegations, including that the city began the excavation project in July 2014 and that work on the project continued to damage their property through the spring of 2016. The court found that the Spiehses' claim was not barred by the applicable statute of limitations because it was subject to the continuing tort doctrine due to the cumulative pattern of the city's alleged conduct. The court also concluded that there existed a genuine issue of material fact as to when the city's alleged tortious conduct ended and when the Spiehses' claim accrued, and so denied the city's motion for summary judgment.

On November 18, 2021, the city filed another motion for summary judgment, claiming that all of the alleged acts of negligence and their resulting damages were caused by nonparty independent contractors. Further, the city alleged that it did not perform any of the work which the Spiehses claimed damaged their property.

A hearing on the city's second motion for summary judgment was held on January 20, 2022. The city offered five exhibits, including a 2014 agreement between the city and independent contractor S.J. Louis Construction, Inc. (S.J. Louis) for work on the excavation project; a 2014 subdivision agreement between the Spiehses, their neighbors, and the city; a 2014 deed of temporary easement granted by the Spiehses to the city; an affidavit of the city's public works director; and a deposition of Tim Spiehs. The Spiehses did not object and the district court received the exhibits. The city also asked the court to take judicial notice of all pleadings in the case, which the court did. Additionally, the city provided the court and the Spiehses with an undisputed statement of facts and an evidence index and stated that both items would be filed later. The Spiehses indicated that they had received the city's evidence index prior to the hearing.

When asked by the court if they had any evidence, the Spiehses stated that "all we would do is offer the deposition of Tim Spiehs, which has already been received as Exhibit No. 9." We note that exhibit 9 included its own evidence index on the third page of the deposition, which listed 13 additional exhibits. However, none of these 13 exhibits were attached to the deposition or were offered by either party at the second summary judgment hearing.

Both parties presented brief arguments regarding whether S.J. Louis was an independent contractor or an agent of the city. The Spiehses indicated that they would provide further briefing to the district court and the court took the matter under advisement.

On March 22, 2022, the city's statement of undisputed facts and evidence index was filed. The evidence index listed the same five exhibits which had been offered by the city at the second summary judgment hearing.

That same day, the district court entered a detailed order granting the city's second motion for summary judgment. The court noted that the Spiehses did not file a statement of disputed facts or an evidence index, and the court accepted the city's statement of undisputed facts as true. According to the city's statement, the city itself did not perform any construction work in connection with the excavation project at issue. Rather, S.J. Louis was contracted by the city to furnish all superintendence for the project and to provide all supplies and materials necessary for completion of the project.

Because the Spiehses did not submit disputed facts or evidence to oppose the city's motion, the district court concluded that there was no genuine issue of material fact as to S.J. Louis' status as an independent contractor for the city. Thus, the city was not liable for any alleged negligence by its contractor and was entitled to judgment as a matter of law. The court dismissed the Spiehses' complaint with prejudice.

The Spiehses appeal.

ASSIGNMENTS OF ERROR

The Spiehses assign, reordered, that the district court erred in (1) failing to note that exhibit 9, the deposition of Tim Spiehs, did not contain the 13 additional exhibits listed in its index; and (2) granting the city's motion for summary judgment.

STANDARD OF REVIEW

An appellate court will affirm a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Kozal v. Snyder, 312 Neb. 208, 978 N.W.2d 174 (2022).

In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence. Id.

ANALYSIS

Exhibits Listed in Deposition's Index.

The Spiehses argue that the district court erred by granting the city's motion for summary judgment without "even reading, or even considering 262 pages of exhibits which should have been a part of the Deposition of Tim Spiehs. . ." Brief for appellant at 6. They also contend that the additional exhibits referenced in the evidence index of Tim Spiehs' deposition, were offered and received along with the deposition as exhibit 9. The Spiehses allege that the city misrepresented the contents of exhibit 9 to the district court and deprived the Spiehses of their opportunity to object.

In connection with a motion for summary judgment, the proponent of evidence must mark and offer the exhibits into evidence. Hogan v. Garden County, 264 Neb. 115, 646 N.W.2d 257 (2002). Unless the evidence is marked, offered, and accepted, it does not become part of the record and cannot be considered by the trial court as evidence in the case. See id.

The Spiehses cite no case law or court rules for the proposition that it is the duty of the district court to remedy alleged defects in exhibits, or to supplement the bill of exceptions with exhibits allegedly missing from the record. The record reflects that at the second hearing for summary judgment exhibit 9 was marked and offered by the city and accepted by the district court without objection. The district court's order indicates that the court considered exhibit 9, which included only the deposition of Tim Spiehs and none of the additional exhibits listed in the deposition's evidence index. The district court had no obligation to consider exhibits...