Preston v. Omaha Cold Storage Terminals

presTon refrigerATion co ., inc ., Appellee , v . omAhA cold
sTorAge T erminAls , inc ., AppellAnT.
742 N.W.2d 782
Filed December 4, 2007. 	No. A-07-472.
1. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
in connection with which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision made by the court below.
2. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
3. Forcible Entry and Detainer: Title: Jurisdiction: Dismissal and Nonsuit. A
court cannot determine a question of title in a forcible entry and detainer action
if the resolution of the case would require the court to determine a title dispute,
in which event it must dismiss the forcible entry and detainer action for lack
of jurisdiction.
4. Contractors and Subcontractors: Mechanics’ Liens. When a contractor has not
substantially performed a contract, the contractor is entitled to a construction lien
only for the reasonable value of the labor performed and the materials furnished.
5. Actions: Mechanics’ Liens: Debtors and Creditors. In the absence of some
provision to the contrary, the remedy upon a construction lien and the remedy
upon the debt are distinct and concurrent and may be pursued at the same time or
in succession.
6. Statutes: Intent. A statutory construction which restricts or removes a common-
law right should not be adopted unless the plain words of the statute compel it.
7. Actions: Mechanics’ Liens: Breach of Contract. The Nebraska Construction
lien Act does not take away a construction lienholder’s common-law right to sue
for breach of contract.
8. Actions: Mechanics’ Liens: Foreclosure: Breach of Contract: Damages. When
foreclosing a construction lien, a second cause of action for damages occasioned
by breach of the contract can be brought in the same lawsuit.
9. Limitations of Actions: Liens: Time. A claimant’s lien does not attach and may
not be enforced unless, after entering into the contract under which the lien arises
and not later than 120 days after his or her final furnishing of services or materials,
he or she has recorded a lien.
10. Actions: Liens. Objections which go to the validity or existence of a lien or
the debt on which it is based may be set up in defense to an action to enforce
the lien.
11. Contracts: Pleadings. In pleading the performance or occurrence of conditions
precedent, it is sufficient to aver generally that all conditions precedent have been
performed or have occurred. A denial of performance or occurrence shall be made
specifically and with particularity.
12. Actions: Time: Pleadings. As a general proposition, noncompliance with
time limits that are preconditions to an action is an affirmative defense to be
specifically pled.
228 	16 NeBrASkA AppellATe repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

13. Contracts: Pleadings. matters which seek to avoid a valid contract are
affirmative defenses.
14. Mechanics’ Liens: Time: Pleadings: Waiver. Failure to file a construction lien
within 120 days of the last furnishing of services or materials is an affirmative
defense which must be pled with particularity, and the failure to do so waives
such defense.
Appeal from the District Court for Saline County: vicky l.
J ohnson, Judge. Affirmed.
Alan J. mackiewicz for appellant.
Andrew m. Demarea and Jay e. Heidrick, of Shughart,
Thomson & kilroy, p.C., and Steven J. reisdorff for appellee.
sievers , cArlson, and cAssel, Judges.
sievers, Judge.
This appeal presents the question of whether a lawsuit which
seeks foreclosure on a construction lien can also include a
separate cause of action for additional damages for breach of
contract. pursuant to the authority granted this court under Neb.
Ct. r. of prac. 11B(1) (rev. 2006), this case has been ordered
submitted for decision without oral argument.
FACTUAl BACkGrOUND
Given the narrow issues raised by the assignments of error, our
factual recitation is limited. The appellee, preston refrigeration
Co., Inc. (preston), is a refrigeration contractor located in
kansas City, kansas, and the appellant, Omaha Cold Storage
Terminals, Inc. (Cold Storage), is a Nebraska corporation doing
business in Omaha, Nebraska, and other states. Cold Storage
owned real estate in rural Saline County, Nebraska, upon which
it intended to construct a cold processing storage facility known
as the Crete project. In October 2001, Cold Storage arranged
for preston to produce an electrical design for the Crete project
at a cost of $30,000. In late November 2001, preston agreed
to perform work on eight screw compressors to be used at the
Crete project at a cost of $156,565 and a written contract for
such work in such amount was entered into between preston and
Cold Storage. On January 20, 2002, preston and Cold Storage
preSTON v. OmAHA COlD STOrAGe TermINAlS 	229
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entered into a contract whereby preston would perform all work
related to the design and construction of the cooling system
at the Crete project, which, as an adjunct, involved work at
another facility in Fort Dodge, Iowa. The amount of the contract
was $3,413,800. It appears that the majority of the work per-
formed by preston was actually performed at preston’s facility
in kansas City. In April 2002, Cold Storage indicated to preston
that the Crete project would be delayed. Work by preston on the
Crete project as well as a project in Fort Dodge was stopped for
6 weeks, and work on the Crete project did not recommence in
a substantial way. In January and February 2003, preston per-
formed some additional work under the general outlines of the
contract, which work preston described as necessary to maintain
and preserve the materials being held by preston at its home
office and to protect them from natural deterioration. While
preston did not specifically invoice Cold Storage for this work,
its charge therefor was $1,884.80.
preston’s last invoice to Cold Storage was dated August 15,
2002, in the amount of $321,948. On march 7, 2003, preston
filed a construction lien with the register of deeds of Saline
County in that amount under Neb. rev. Stat. § 52-147 (reissue
2004). Thereafter, in October 2003, Cold Storage substituted
collateral for the construction lien, in the form of a cashier’s
check in the amount of $370,300 deposited with the clerk of the
district court for Saline County.
prOCeDUrAl HISTOrY
Although the transcript in this case contains over 400 pages,
including several amendments to the complaint, discovery doc-
uments, pretrial filings, and court orders, extensive recitation of
the procedural history is not necessary for several reasons. The
primary reason is that the case ultimately came on for a bench
trial before the district court upon Cold Storage’s general denial
without any affirmative defenses. The primary issue raised
by Cold Storage was whether the lawsuit for foreclosure of a
construction lien could also include a cause of action for addi-
tional damages for breach of contract. The trial court rejected
Cold Storage’s claim that the action was limited solely to the
foreclosure of the lien. The matter was tried on June 26, 2006,
230 	16 NeBrASkA AppellATe repOrTS

and on December 27, a decision was rendered by the district
court which gave judgment to preston on its lien for $321,948,
as well as $1,884.88 “for work performed under the contract
but not invoiced to [Cold Storage] for maintenance of the com-
pressors,” for a total judgment of $323,832.88. preston filed a
timely motion for new trial and/or to alter or amend the judg-
ment on the ground that the court had not dealt with the breach
of contract damages which were claimed. The court entered its
order on march 30, 2007, and amended its previous decision
to add an additional $748,428 in damages for lost profits due
to Cold Storage’s breach of contract between the parties, for a
total judgment of $1,072,260.88.
The second reason that we do not extensively discuss the
procedural history, or the evidence for that matter, is the limited
scope of the assignments of error advanced by Cold Storage.
ASSIGNmeNTS OF errOr
Cold Storage makes five separate assignments of error, but
examination of its brief reveals that such have been consoli-
dated and argued as three claims, which are as follows: (1) The
trial court did not have subject matter jurisdiction to try any
common-law causes of action in this statutory action for fore-
closure of a construction lien; (2) preston did not satisfy its
burden of proving that its claim was filed in time to create a
lien; and (3) preston never pled a claim for the labor charges
of January and February 2003 in the amount of $1,884.88, and
as a result, the trial court committed error in including such
amount in its judgment.
STANDArD OF reVIeW
[1,2] Statutory interpretation presents a question of law, in
connection with which an appellate court has an obligation to
reach an independent conclusion irrespective of the decision
made by the court below. Gage Cty. Bd. v. Nebraska Tax Equal.
& Rev. Comm., 260 Neb. 750, 619 N.W.2d 451 (2000). In a
bench trial of a law action, the trial court’s factual findings have
the effect of a jury verdict and will not be disturbed on appeal
unless clearly wrong. Par 3, Inc. v. Livingston, 268 Neb. 636,
686 N.W.2d 369 (2004).
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Cite as 16 Neb. App. 228

ANAlYSIS
May Action Brought to Foreclose Construction Lien
Include Cause of Action for Other Damages
Arising Out of Breach of Contract?
At the outset, we note that the amount sought in conjunction
with the foreclosure of preston’s construction lien—$321,948—
is not disputed, except as to whether the construction lien was
timely perfected. In short, Cold Storage does not contest that
the amount sought was fair, reasonable, and necessary, or that
the work was not performed. likewise, Cold Storage does not
dispute the amount of $748,428 awarded to preston as lost
profits for unperformed work by virtue of breach of contract
by Cold Storage. rather, Cold Storage’s claim is that a breach
of contract cause of action for lost profits cannot be brought in
this lawsuit. That argument is premised upon Cummins Mgmt.
v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003). In that case,
to secure a note, John m. Gilroy and Cynthia H. Gilroy had
delivered a trust deed to Cummins management, l.p., encum-
bering property owned by the Gilroys, and after a failure of
payments on the note, a trustee’s sale was conducted at which
Frank l. Huber submitted the high bid. The trustee delivered a
deed to Huber, but the Gilroys refused to surrender the property
and instead filed an action seeking to set aside the trustee’s
sale. Shortly thereafter, Huber filed a petition for forcible entry
and detainer against the Gilroys, who demurred to such peti-
tion claiming that the court lacked subject matter jurisdiction
because there was a dispute over who had title to the property.
The trial court treated the demurrer as a plea in abatement and
suspended the forcible entry and detainer action until deter-
mination of the action to set aside the trustee’s deed—which
the trial court decided against the Gilroys. The Nebraska
Supreme Court affirmed the trial court’s action in refusing to
set aside the trustee’s sale in Gilroy v. Ryberg, 266 Neb. 617,
667 N.W.2d 544 (2003). However, after refusing to set aside
the trustee’s deed, the trial court reopened the forcible entry
and detainer action and found for Huber’s successor in interest,
Cummins management. The Gilroys appealed such decision,
claiming that the trial court erred in failing to dismiss because
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it lacked subject matter jurisdiction and Cummins management
lacked standing to maintain the action.
[3] The Supreme Court in Cummins Mgmt. concluded that the
district court had erred in failing to dismiss the action for lack
of subject matter jurisdiction and that any order entered after
the court determined that title was in dispute was a nullity. The
Supreme Court said that for over a century, it had held that a
court cannot determine a question of title in a forcible entry and
detainer action if the resolution of the case would require the
court to determine a title dispute, in which event it must dismiss
the forcible entry and detainer action for lack of jurisdiction.
The Supreme Court reasoned in Cummins Mgmt. that when a
party attempts to interject a title dispute into a forcible entry
and detainer action, a statutory action, thereby transforming it
into an equitable action to determine title, the court is divested
of jurisdiction. Citing Pence v. Uhl, 11 Neb. 320, 9 N.W. 40
(1881), the court noted the nature of forcible entry and detainer
actions, saying that such have nothing to do with title because
when titles are relied upon to establish the right to possess real
estate, resort must be had to another tribunal but also to a dif-
ferent form of action. relying upon the limited scope of forc-
ible entry and detainer actions, the Supreme Court in Cummins
Mgmt. said that when a district court hears such an action, it sits
as a special statutory tribunal to summarily decide the issues
authorized by the statute and not as a court of general jurisdic-
tion with power to hear and determine other issues.
From this authority and reasoning, Cold Storage argues that
a construction lien foreclosure is a statutory action under Neb.
rev. Stat. § 52-125 et seq. (reissue 2004) and that thus, a
common law action for breach of contract cannot be combined
therewith. Cold Storage then cites Tilt-Up Concrete v. Star City/
Federal, 261 Neb. 64, 621 N.W.2d 502 (2001) (Tilt-Up II), as
precedent and illustrative of its proposition. However, both the
district court in the instant action and preston in its briefing rely
upon Tilt-Up II as the authority which allows the foreclosure of
the construction lien as well as a breach of contract claim in
the same action.
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Cite as 16 Neb. App. 228

[4] In Tilt-Up Concrete v. Star City/Federal, 255 Neb. 138,
582 N.W.2d 604 (1998) (Tilt-Up I), Tilt-Up Concrete, Inc.
(Tilt-Up), filed a petition in district court against Star City/
Federal, Inc. (Star City), seeking foreclosure of a construction
lien. On appeal, the Supreme Court held that when a contrac-
tor has not substantially performed a contract, the contractor is
entitled to a construction lien only for the reasonable value of
the labor performed and the materials furnished. Thus, the court
reduced Tilt-Up’s lien by over $600,000.
Four years six months after Tilt-Up I was originally filed,
Tilt-Up filed another petition in district court seeking dam-
ages for breach of an oral contract with Star City and a defi-
ciency judgment, which case became the previously referenced
Tilt-Up II. Star City’s demurrer on the ground that Tilt-Up’s
second action was barred by the statute of limitations was sus-
tained, and ultimately, Tilt-Up stood on its amended pleading
and appealed to the Supreme Court. In the Supreme Court’s
analysis, it found that on its face, Tilt-Up’s second action was
barred by the statute of limitations. However, Tilt-Up argued
that the statute of limitations was equitably tolled during the
pendency of the construction lien foreclosure action because
Tilt-Up was barred during that time from bringing a breach of
contract action.
[5-7] In reference to Tilt-Up’s argument for equitable toll-
ing, the Supreme Court in Tilt-Up II considered the effect of
the Nebraska Construction lien Act (NClA), § 52-125 et seq.,
saying, “The first issue we address is whether the NClA pre-
cludes a construction lienholder from also pursuing an action
for breach of contract.” 261 Neb. at 68, 621 N.W.2d at 507.
The court said that the general rule is long established that in
the absence of some provision to the contrary, the remedy upon
a construction lien and the remedy upon the debt are distinct
and concurrent and may be pursued “‘at the same time or in
succession.’” Id. In support thereof, the court cited at least 20
cases supporting that proposition from other jurisdictions. The
court then held:
This rule is consistent with the well-known principle
that a statutory construction which restricts or removes a
common-law right should not be adopted unless the plain
234 	16 NeBrASkA AppellATe repOrTS

words of the statute compel it. See, Lackman v. Rousselle,
257 Neb. 87, 596 N.W.2d 15 (1999); Stoneman v. United
Neb. Bank, 254 Neb. 477, 577 N.W.2d 271 (1998). The
NClA contains neither an express provision nor any lan-
guage indicating that the NClA was meant to preclude
other remedies that a construction lienholder might pursue
to collect a contractual debt. We therefore conclude that
the NClA does not take away a construction lienholder’s
common-law right to sue for breach of contract.
Because the NClA does not preclude an action for
breach of contract, Tilt-Up was entitled to bring such an
action despite the pendency of its construction lien fore-
closure action. The only limitation is that any amount
recovered for breach of contract damages would be cred-
ited to satisfy the construction lien when necessary to
prevent a double recovery.
261 Neb. at 68, 621 N.W.2d at 507-08. The Supreme Court
therefore concluded in Tilt-Up II that because Tilt-Up was not
barred from bringing its breach of contract action by the NClA,
the statute of limitations for breach of contract was not tolled
for that reason and the second suit was therefore barred.
[8] It seems clear to us, as it apparently did to the district
court in the instant case, that the Supreme Court’s discussion in
Tilt-Up II concluding that the remedies upon a construction lien
and upon a debt because of breach of contract are distinct and
concurrent and may be “‘pursued at the same time or in suc-
cession,’” 261 Neb. at 68, 621 N.W.2d at 507, means that when
foreclosing a construction lien, a second cause of action for
damages occasioned by breach of the contract can be brought
in the same lawsuit. In the case before us, the construction
lien represents the unpaid cost of materials and labor actu-
ally expended, except the January and February labor charge
of $1,884.88, and the second cause of action for breach of
contract represents the lost profits (and Cold Storage does not
dispute the amount of such loss) occasioned by Cold Storage’s
breach of that contract.
In summary, we find that the Supreme Court’s decision in
Tilt-Up II determines the issue raised by Cold Storage’s first
assignment of error and that the trial court did not commit error
preSTON v. OmAHA COlD STOrAGe TermINAlS 	235
Cite as 16 Neb. App. 228

in allowing preston to proceed on its first cause of action, fore-
closure of the construction lien, simultaneously with its second
cause of action, lost profits for breach of contract.
Did Preston Timely Perfect Its Construction Lien?
[9] Cold Storage’s second assignment of error and argument
is that preston did not timely file its lien. Section 52-137(1)
provides: “A claimant’s lien does not attach and may not be
enforced unless, after entering into the contract under which the
lien arises and not later than one hundred twenty days after his
or her final furnishing of services or materials, he or she has
recorded a lien.”
Cold 	Storage 	seizes 	upon 	the 	following 	language 	from
Occidental S. & L. Assn. v. Cannon, 184 Neb. 659, 666-67, 171
N.W.2d 166, 171 (1969):
We also observe that after a contract for material or
labor is substantially completed, there should be no unrea-
sonable delay in filing a claim for a lien if one is desired,
and the time for filing a lien cannot be delayed by per-
forming minor labor or furnishing minor items of material.
The purpose of the mechanic’s lien statute is to protect the
diligent contractor or materialman, not to provide relief for
the careless or negligent one. To permit a contractor or a
materialman to string out work on orders is to abort the
statute. If the time which is restricted by the statute can
be indefinitely extended by minor work or deliveries after
a contract is substantially completed, the 4-month limita-
tion period in which to file this class of lien can and will
be utterly and completely defeated, permitting the title to
property to remain in an unsettled condition, and rights of
diligent claimants will be subordinated to those who care-
lessly or unnecessarily delay to claim their rights.
[10] Cold Storage argues that the only items of material or
labor for the Crete project which occurred within 120 days of
march 7, 2003, the date upon which preston filed his construc-
tion lien, were charges for labor beginning January 15, 2003, in
the amount of $745.88 for labor by preston employees and con-
tract labor charges of $1,139, which preston asserts it performed
on behalf of Cold Storage between January 15 and February 13,
236 	16 NeBrASkA AppellATe repOrTS

2003. preston’s initial response to this argument is that it is Cold
Storage’s burden to question the validity of the lien or the per-
formance of a contract in a lien foreclosure by pleading such as
an affirmative defense, citing Reeves v. Watkins, 208 Neb. 804,
305 N.W.2d 815 (1981). In Reeves, the court said:
Furthermore, it was incumbent upon [the appellant] to raise
the invalidity or nonperformance of the contract in the
mechanic’s lien foreclosure. “Objections which go to the
validity or existence of the lien or the debt on which it is
based may be set up in defense to an action to enforce the
lien.” 57 C.J.S. Mechanics’ Liens § 273 (1948).
208 Neb. at 810, 305 N.W.2d at 819.
[11] moreover, we note that Neb. Ct. r. of pldg. in Civ. Actions
9(c) (rev. 2003) provides in part: “Conditions Precedent. In
pleading the performance or occurrence of conditions precedent,
it is sufficient to aver generally that all conditions precedent
have been performed or have occurred. A denial of performance
or occurrence shall be made specifically and with particular-
ity.” Such rule is applicable to all “civil actions filed on or after
January 1, 2003,” and is clearly applicable to this action. See
Neb. Ct. r. of pldg. in Civ. Actions 1 (rev. 2004).
Cold Storage does not direct us to any allegation in its plead-
ings that the lien sought to be foreclosed was filed later than 120
days after preston’s final furnishing of service or materials. Nor
have we found any such allegation in our examination of the
record. On the other hand, in accordance with the above-quoted
rule 9(c), preston alleges that within 120 days after the indebted-
ness accrued, it had filed a construction lien with the register of
deeds for Saline County pursuant to § 52-147 in the amount of
$321,948 as required by law. Cold Storage’s amended answer to
the second amended complaint simply admits certain allegations
and “denies all of the other allegations contained in the Second
Amended Complaint.”
[12] While we have found no specific authority holding that
noncompliance with the 120-day requirement for the filing of
a construction lien is an affirmative defense which is waived if
not specifically pled, we so hold for the reasons set forth above.
Additionally, such conclusion is analogous to the holding of Big
Crow v. City of Rushville, 266 Neb. 750, 669 N.W.2d 63 (2003),
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Cite as 16 Neb. App. 228

that noncompliance with Neb. rev. Stat. § 13-906 (reissue 1997)
is an affirmative defense which must be pled. Section 13-906
prevents suit under the political Subdivisions Tort Claims Act
unless the governing body of the political subdivision has made
final disposition of the claim or, if such final disposition has not
been made within 6 months, the claim is withdrawn in writing
from consideration of the governing body and suit is instituted.
See, also, Cole v. Isherwood, 264 Neb. 985, 653 N.W.2d 821
(2002) (discussing 6-month requirement in State Tort Claims
Act found in Neb. rev. Stat. § 81-8,213 (reissue 2003)). In
short, as a general proposition, noncompliance with time limits
that are preconditions to an action is an affirmative defense to
be specifically pled.
[13,14] As further authority for our holding, we note that
the law is well established that matters which seek to avoid
a valid contract are affirmative defenses. Production Credit
Assn. v. Eldin Haussemann Farms, 247 Neb. 538, 529 N.W.2d
26 (1995). Cold Storage does not claim that its contract with
preston is invalid, but, rather, seeks to avoid liability thereunder
with respect to the amount sought via the construction lien by
its claim that the lien was not timely filed. Such claim is an
affirmative defense. For these several reasons, we hold that the
failure to file a construction lien within 120 days of the last
furnishing of services or materials is an affirmative defense
which must be pled with particularity and that the failure to do
so waives such defense. Because Cold Storage failed to do so,
it has waived any such defense and this assignment of error is
without merit. See Big Crow, supra (issue of noncompliance
with § 13-906 was waived as defense by not affirmatively alleg-
ing such in answer).
Can Preston Recover for Labor Charges in January and
February 2003 in Amount of $1,884.88?
Cold Storage argues that preston made no claim for its
January and February 2003 labor charges in the amount of
$1,884.88, shown on the last page of exhibit 19, because it did
not plead such specifically as an element of damage.
The trial court awarded damages of $321,948 “for the work
performed and billed” to Cold Storage and “$1,884.88 for work
238 	16 NeBrASkA AppellATe repOrTS

performed under the contract but not invoiced to [Cold Storage]
for maintenance of the compressors.” As earlier recited, as
a result of preston’s motion for new trial and/or to alter
or amend judgment, the trial court amended its judgment to
include $748,428 “in lost profits on unperformed future work.”
Thus, the trial court’s total judgment was $1,072,260.88, which
includes the $1,884.88 at issue in this assignment of error. Cold
Storage does not contend that the work for such sum was not
performed, but only that it was not invoiced to Cold Storage,
nor was it specifically pled as an item of damage.
preston’s response is multifaceted. Initially, preston argues
that because an appellate court will not consider an issue on
appeal that was not presented or passed on by the trial court,
citing Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455
(2001), we should not even consider this assignment of error,
as the issue was not raised before the trial court. Next, preston
argues that no objection was made to the offer of exhibit 19,
in which such charges were included, which is correct, and
that in any event, preston is entitled to that amount of damages
which will compensate it for the loss which fulfillment of the
contract would have prevented or the breach of it has entailed,
citing Third Party Software v. Tesar Meats, 226 Neb. 628, 414
N.W.2d 244 (1987). Finally, preston argues that the amount of
damages to be awarded is a matter for the fact finder which will
not be disturbed on appeal if it is supported by the evidence
and bears a reasonable relationship to the elements of the dam-
ages proved, citing Union Ins. Co. v. Bailey, 234 Neb. 257, 450
N.W.2d 661 (1990).
Cold Storage has not cited us to any place in the trial record
where it either objected to the specific charges for January
and February 2003 put into evidence by way of exhibit 19 or
introduced evidence that such charges were not fair, reasonable,
and necessary. Accordingly, we conclude that this issue was
not properly raised in the trial court and preserved for appellate
review. moreover, the amounts sought for labor in January and
February 2003 were within the cause of action for breach of
contract, although such amount was not included in the amount
of the construction lien. However, the failure to include such
in the construction lien does not mean that the amount is not
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Cite as 16 Neb. App. 228

recoverable, assuming proper proof, and there is no assertion
made that preston did not prove such sum. The trial court’s
award of such damages is not clearly wrong. For these reasons,
we find the assignment of error to be without merit.
CONClUSION
Finding 	no 	merit 	to 	any 	of 	the 	assignments 	of 	error
advanced by Cold Storage, we affirm the trial court’s judgment
against Cold Storage and in favor of preston in the amount
of $1,072,260.88.
A ffirmed .
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