Background
Nemaha County hired Vogtscapes, Inc. as general contractor to replace a county road bridge with a concrete box culvert. The county also retained Mainelli Wagner & Associates as project engineer, and Vogtscapes subcontracted dirt work to Nebraska Digging Services LLC. The fixed-price contract was set at $752,311 and expressly required any additions or deletions to be made by written change order. No written change orders were ever executed on the project.
During construction, a large dirt stockpile created during initial excavation was placed — with county representative Michael Weiss’s approval — in a location that would later obstruct driveway construction. When Nebraska Digging began backfilling and the stockpile emerged as an impediment, the parties held an October 2023 meeting attended by county commissioner Weiss, Mainelli Wagner inspector Dean Britt, and representatives of both Vogtscapes and Nebraska Digging. Nebraska Digging’s co-owner Tyler Rosenow contended that Britt directed him to relocate and “waste” the dirt in multiple locations, acknowledged that the relocation constituted extra work, told him not to submit a written change order because it would delay the project, and instead instructed him to track truckloads so the work could be paid as a project “overrun.” Engineering plans were subsequently modified to reflect the new dirt-wasting instructions. Nebraska Digging performed the work and submitted a payment request of approximately $92,470.80 (based on $12 per cubic yard), which Nemaha County denied.
Appellants sued in Nemaha County District Court asserting breach of contract, a claim under Nebraska’s Prompt Pay Act, and equitable relief. The district court granted Nemaha County’s motion for summary judgment, finding the contract unambiguous, the stockpile relocation contemplated within the original scope, and the written change-order requirement unsatisfied. Appellants timely appealed.
The Court’s Holding
The Nebraska Court of Appeals reversed and remanded, holding that the district court erred in granting summary judgment because genuine issues of material fact remained on two dispositive questions: (1) whether the dirt stockpile relocation constituted additional work outside the original contract scope, and (2) whether Nemaha County, through the conduct of Weiss and Britt, waived the written change-order provision and orally agreed to pay for the additional work as an overrun.
On the scope question, the court found the district court’s conclusion that relocation was unambiguously within the contract was itself disputable. The contract required the county to haul off excess embankment after construction, the original stockpile location had been approved by Weiss despite the parties knowing it would obstruct later work, and the engineering plans were actually modified to direct how the dirt was to be moved — facts that, viewed in the light most favorable to appellants, raised a triable issue. The court relied on the principle from D. K. Meyer Corp. v. Bevco, Inc., 206 Neb. 318, 292 N.W.2d 773 (1980), that the interpretation parties give a contract during performance is one of the best indications of true intent — and here Britt, as Mainelli Wagner’s agent authorized to resolve questions about the contract’s intent, appeared to treat the relocation as extra work.
On the change-order waiver question, the court again applied D. K. Meyer Corp., which holds that parties may avoid a written-change-order provision through words, acts, or conduct amounting to waiver, modification, or estoppel. Rosenow’s testimony that Britt explicitly told him not to submit a change order because it would delay the project — and instead to track truckloads for overrun payment — constituted sufficient evidence that the provision was waived, precluding resolution of that issue on summary judgment.
Key Takeaways
- A written change-order requirement in a construction contract is not an absolute bar to recovery; under Nebraska law it can be waived by the parties’ words, acts, or conduct during performance.
- When a contractor requests a written change order and is told by the owner’s authorized representative not to submit one — because it would delay the project — that instruction can itself constitute evidence of waiver sufficient to survive summary judgment.
- The interpretation the contracting parties place on their agreement during actual performance is strong evidence of intent and can create a triable issue even when a court has found the written contract unambiguous.
- An engineer or inspector designated in the contract to resolve questions about the contract documents’ intent may bind the owner when that representative directs extra work and acknowledges it falls outside the original scope.
Why It Matters
This decision reinforces that written change-order clauses in Nebraska public-works contracts are not self-enforcing shields against extra-work claims. Where an owner’s authorized representative directs additional work, acknowledges it constitutes an overrun, and affirmatively discourages the contractor from following the change-order procedure, the owner may be estopped from later hiding behind the clause it told the contractor to ignore. For contractors and subcontractors, the case underscores the importance of documenting such oral authorizations in real time — here, tracking truckloads on Britt’s instruction helped preserve the claim.
For public entities and their engineers, the decision is a reminder that informal assurances given in the field can carry significant legal weight. Representatives who lack formal authority to bind the county should not signal to contractors that extra work will be compensated, and owners who want to enforce change-order requirements strictly must be consistent in requiring them rather than waiving compliance in the name of project expediency.