Adams v. Manchester Park

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291 Nebraska reports
ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
James a. adams , appellaNt, aNd rebecca Z. adams ,
appellee , v. maNchester park , l.l.c.,
a Nebraska limited liability compaNy,
aNd southfork homes , iNc.,
a Nebraska corporatioN, appellees .
871 N.W.2d 215
Filed October 23, 2015. 	No. S-13-429.
1. Summary Judgment. Summary judgment is proper if the pleadings
and admissible evidence offered show that there is no genuine issue as
to any material facts or as to the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judgment as a
matter of law.
2. Limitations of Actions: Breach of Warranty: Contractors and
Subcontractors. Where the basis of a claim is improper workmanship
resulting in defective construction, the Neb. Rev. Stat. § 25-223 (Reissue
2008) statute of limitations runs from the date of substantial comple-
tion of the project, not the date of any specific act which resulted in
the defect.
Petition for further review from the Court of Appeals,
iNbody, Chief Judge, and irwiN and bishop, Judges, on appeal
thereto from the District Court for Douglas County, J. michael
coffey, Judge. Judgment of Court of Appeals reversed, and
cause remanded with directions.
James A. Adams, of Law Offices of James A. Adams, P.C.,
L.L.O., pro se.
Larry E. Welch, Sr., of Welch Law Firm, P.C., for appellee
Manchester Park, L.L.C.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:31 AM CST

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
Patrick S. Cooper and David J. Substad, of Fraser Stryker,
P.C., L.L.O., for appellee Southfork Homes, Inc.
Edward H. Tricker, Jerry L. Pigsley, and Erin L. Ebeler,
of Woods & Aitken, L.L.P., for amici curiae AGC Nebraska
Chapter and Nebraska Building Chapter of AGC.
heavicaN, c.J., wright, coNNolly, mccormack , miller-
lermaN, and cassel , JJ.
mccormack , J.
NATURE OF CASE
Southfork Homes, Inc. (Southfork), petitioned this court
for further review after the Nebraska Court of Appeals found
an action brought against it for defective construction of a
home was not barred by the applicable statute of limitations.
We conclude the Court of Appeals erred, and we reverse, and
remand to the Court of Appeals with directions to affirm the
judgment of the district court.
BACKGROUND
The underlying facts are fully set forth in the opinion issued
by the Court of Appeals.1 We restate only the most relevant
ones here.
In August 2006, James A. Adams and Rebecca Z. Adams, the
homeowners, executed a purchase agreement with Southfork
for the construction of a new home. The home was to be built
on a lot purchased by Southfork in 2004 from Manchester
Park, L.L.C. (Manchester), a developer. Manchester had com-
pleted grading on the lot in 2003.
The home was substantially completed and a final walk-
through inspection occurred on September 19, 2007. On
September 20, Southfork issued the homeowners a 1-year
limited warranty for material defects in workmanship or
materials.
1 Adams v. Manchester Park, 22 Neb. App. 525, 855 N.W.2d 819 (2014).

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
Within 6 months, the homeowners noticed cracks in walls
and tiles, roof leaks, and windows that would not open.
Southfork told the homeowners that they should wait until the
expiration of the 1-year limited warranty to request repairs,
and the homeowners did so. Southfork then attempted to make
repairs, but the issues persisted.
In December 2009, a specialist hired by the homeowners
reported potential issues with the foundation of the home.
In July 2011, another specialist hired by the homeowners
performed test borings on the soil of the lot and concluded
the soil was improperly compacted. On September 22, 2011,
the 	homeowners 	filed 	this 	action 	against 	both 	Southfork
and Manchester.
The complaint alleged there was improper workmanship
because the soil compaction on the lot was done in a substan-
dard manner, the foundation was improperly installed, and the
plans and specifications relating to the earthwork did not meet
the Omaha, Nebraska, city code. The complaint specifically
alleged that the defendants (1) breached the implied duty to
perform in a workmanlike manner, (2) breached the implied
warranty of habitability, (3) negligently constructed the home,
(4) fraudulently concealed facts which prevented the home-
owners from discovering the negligence, and (5) breached
the express 1-year limited warranty issued on September
20, 2007.
Southfork and Manchester both moved for summary judg-
ment, asserting the action was barred by the 4-year statute
of limitations set forth in Neb. Rev. Stat. § 25-223 (Reissue
2008), which provides:
Any action to recover damages based on any alleged
breach of warranty on improvements to real property or
based on any alleged deficiency in the design, planning,
supervision, or observation of construction, or construc-
tion of an improvement to real property shall be com-
menced within four years after any alleged act or omis-
sion constituting such breach of warranty or deficiency.

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
If such cause of action is not discovered and could not
be reasonably discovered within such four-year period,
or within one year preceding the expiration of such four-
year period, then the cause of action may be commenced
within two years from the date of such discovery or
from the date of discovery of facts which would reason-
ably lead to such discovery, whichever is earlier. In no
event may any action be commenced to recover dam-
ages for an alleged breach of warranty on improvements
to real property or deficiency in the design, planning,
supervision, or observation of construction, or construc-
tion of an improvement to real property more than ten
years beyond the time of the act giving rise to the cause
of action.
The district court granted summary judgment in favor of
both defendants; it determined that the 4-year limitations
period began to run in 2003, when the soil on the lot was
improperly compacted by Manchester, reasoning that was the
alleged act or omission constituting the breach of warranty
or deficiency. It then reasoned that because the homeown-
ers did not take possession of the home until September
2007, they could not reasonably have discovered the cause of
action within the 4-year period, and thus had 2 years from the
date of discovery to file suit. The district court reasoned the
homeowners discovered facts that should have put them on
notice of the defects no later than September 2008, because
they were aware of the roof leaks and wall and tile cracks
by that time. It thus held that the statute of limitations ran in
September 2010 and that the action filed on September 22,
2011, was untimely.
James appealed, and the Court of Appeals affirmed as to
Manchester, finding it had no contractual obligation to the
homeowners. But it reversed as to Southfork, finding the
action against it was not barred by § 25-223. The Court of
Appeals reasoned that the 4-year statute of limitations in
§ 25-223 did not begin to run in 2003, because at that time, the

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
homeowners were not “in any position to have any knowledge
about the grading completed.”2 Instead, it held that the 4-year
period began to run against the homeowners at the expiration
of the express 1-year limited warranty issued by Southfork
on September 20, 2007, and that thus, the action filed on
September 22, 2011, against Southfork was timely. Because
the court found the action was filed within the statute of limi-
tations, it did not reach James’ assignment of error related to
fraudulent concealment.
Southfork petitioned this court for further review. It alleges
the Court of Appeals erred in finding the statute of limita-
tions ran from the expiration of the 1-year limited warranty,
instead of from the date of substantial completion of the
home. An amicus curiae brief filed by the Nebraska Building
Chapter of AGC and AGC Nebraska Chapter concurs with
Southfork’s argument.
ASSIGNMENTS OF ERROR
In its petition for further review, Southfork assigns, restated
and summarized, that the Court of Appeals erred in holding
that the statute of limitations began to run on the homeown-
ers’ claims at the expiration of the 1-year limited warranty.
Southfork asserts that the Court of Appeals should have held
that the limitations period began to run from the date the
home was substantially completed.
STANDARD OF REVIEW
[1] Summary judgment is proper if the pleadings and admis-
sible evidence offered show that there is no genuine issue as to
any material facts or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law.3
2 Id. at 534, 855 N.W.2d at 827.
3 Kercher v. Board of Regents, 290 Neb. 428, 860 N.W.2d 398 (2015);
United Gen. Title Ins. Co. v. Malone, 289 Neb. 1006, 858 N.W.2d 196
(2015).

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291 Nebraska reports
ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
ANALYSIS
Section 25-223 is a special statute of limitations governing
actions against builders and contractors for improvements to
real property.4 It is applicable here because the homeowners
alleged that Southfork (1) breached the implied duty to per-
form in a workmanlike manner, (2) breached the implied war-
ranty of habitability, (3) negligently constructed the home,
(4) fraudulently concealed facts which prevented the home-
owners from discovering the negligence, and (5) breached
the express 1-year limited warranty issued on September
20, 2007. All of these theories are based on the underlying
allegation that improper soil compaction on the lot caused
issues with the foundation of the home, resulting in defec-
tive construction.
Section 25-223 states that its 4-year limitations period
begins upon the “alleged act or omission constituting [the]
breach of warranty or deficiency.” Here, the specific “act or
omission” alleged to have caused the defective condition of the
home was the improper soil compaction in 2003. The district
court concluded that the 4-year limitation began to run from
the 2003 date of soil compaction.
[2] But we have held that where the basis of the claim is
improper workmanship resulting in defective construction, the
§ 25-223 statute of limitations runs from the date of substan-
tial completion of the project, not the date of any specific act
which resulted in the defect.5 In Witherspoon v. Sides Constr.
Co.,6 a home suffered damages when a pipe supplying water
to it broke. The homeowner brought an action against the
builder, and we specifically held that the time limitations of
§ 25-223 began to run from the date construction of the home
4 Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 777 (2005).
5 See Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35
(1985).
6 Id.

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
was completed, not from the date when the pipe was installed,
because the underlying theory was that the builder failed to
erect the home in a good and workmanlike manner. In vari-
ous other cases, we also have either expressly held or strongly
implied that when the claim is improper workmanship, the
§ 25-223 statute of limitations begins to run from the date the
project is substantially completed.7
Thus, pursuant to our established precedent, the latest date
the 4-year limitations period of § 25-223 commenced in this
case was September 19, 2007, the date of substantial comple-
tion. Because the lawsuit was not filed until September 22,
2011, it was outside the statute of limitations. And the dis-
covery rule exception in § 25-223 cannot save the action,
because it is clear the homeowners knew of the defects in the
home no later than December 2009, when they were aware of
problems with the foundation of the home. Because this dis-
covery occurred during the first 3 years of the 4-year statute
of limitations, the statutory discovery exception cannot apply
to them.
The Court of Appeals found that the 1-year limited war-
ranty issued by Southfork to the homeowners on September
20, 2007, extended the 4-year time limitations of § 25-223,
and that thus, the limitations period on all of James’ claims
did not begin to run until the expiration of that warranty. But
that holding is at odds with at least one prior opinion of this
court. In Board of Regents v. Lueder Constr. Co.,8 a univer-
sity brought an action for defective construction of a campus
building. It specifically alleged that the builder breached its
contract by failing to install supporting structures pursuant to
specifications and failing to properly install steel reinforcing
7 See Board of Regents v. Lueder Constr. Co., 230 Neb. 686, 433 N.W.2d
485 (1988). See, also, Durre v. Wilkinson Development, 285 Neb. 880, 830
N.W.2d 72 (2013); Board of Regents v. Wilscam Mullins Birge, 230 Neb.
675, 433 N.W.2d 478 (1988).
8 Board of Regents v. Lueder Constr. Co., supra note 7.

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
bars to floor slabs. Even though the builder had issued a 1-year
warranty on the building, we held that the relevant “act or
omission” in § 25-223 occurred on the date the construction
was substantially completed.9
The facts in the instant case are very similar, and we reach
the same conclusion here. As noted, in the complaint, the
homeowners alleged a breach of the implied duty to perform
in a workmanlike manner, a breach of the implied warranty of
habitability, negligent construction, fraudulent concealment of
material facts, and breach of the 1-year express warranty. The
homeowners alleged each of these theories were supported
because the soil compaction was improper, resulting in defec-
tive construction of the home. The homeowners, like the uni-
versity in Lueder & Constr. Co., made no claim that Southfork
failed to make repairs when requested to do so pursuant to the
express warranty. Thus, under the facts of this case, the act or
omission which served as the basis for all of the homeowners’
claims was the defective construction itself. In such a scenario,
the existence of the 1-year express warranty, which was issued
in this case after substantial completion of the home, does not
extend the § 25-223 statute of limitations as to the homeown-
ers’ claims.
Because the Court of Appeals found the action was not
barred by the statute of limitations, it did not address the
fraudulent concealment claim. In the interest of judicial econ-
omy, we address that claim here.10 We find it without merit as
a matter of law. Evidence in the record clearly establishes that
Southfork did not conceal any material facts from the home-
owners and that the homeowners knew, at least by December
2009, that there were substantial problems with the foundation
of the home. This knowledge was sufficient to put them on
notice of the underlying construction defects.
9 Id.
10 See, In re Interest of Jamyia M., 281 Neb. 964, 800 N.W.2d 259 (2011);
Capitol Construction v. Skinner, 279 Neb. 419, 778 N.W.2d 721 (2010).

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
CONCLUSION
For the foregoing reasons, we reverse the decision of the
Court of Appeals and remand the cause to the Court of
Appeals, with directions to affirm the judgment of the dis-
trict court.
reversed aNd remaNded with directioNs .
stephaN, J., not participating.
coNNolly, J., concurring.
I agree that Neb. Rev. Stat. § 25-223 (Reissue 2008) bars
the Adamses’ claims as a matter of law. But a reader might
conclude that all claims to which § 25-223 applies accrue
upon substantial completion. I write separately to preempt any
such misconception.
The Adamses’ claims of negligence, breach of the implied
warranty to perform in a workmanlike manner, and breach
of the implied warranty of habitability were based on the
defective construction of their house. Because the “breach of
warranty or deficiency” which triggered the limitation period
in § 25-223 was the defective construction, and a house is
constructed when it is substantially completed, the statute of
limitations for those claims began running upon substantial
completion. That date was September 19, 2007.
The Adamses also alleged that Southfork breached its prom-
ise in the 1-year express warranty to construct a house free
of material defects. If there were material defects, Southfork
breached this promise as soon as it issued the express war-
ranty. We seem to imply that the statute of limitations began
to run on the Adamses’ express warranty claim on September
19, 2007, even though Southfork did not issue the express
warranty until September 20. One wonders if a warranty can
be breached before it exists, but the 1-day difference is not
material here.
As the Court of Appeals noted, Southfork also promised in
the 1-year express warranty to repair or replace “any mate-
rial defects in workmanship or materials” if the Adamses

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
gave notice of such defects within 1 year. We correctly note,
however, that the Adamses did not allege in their complaint
that Southfork breached its promise to repair. This failure
was significant.
For an express warranty to make repairs, the “act or omis-
sion constituting such breach of warranty” under § 25-223 is
the warrantor’s failure or refusal to make repairs. Restated,
the rule is that a cause of action for the breach of a warranty
to repair defects accrues when the defendant fails or refuses
to repair defects.1 So, Southfork breached its promise to repair
defects (if it breached its promise) not when it substantially
completed the house, but when it failed to make repairs after a
timely request by the Adamses.
The Maryland Court of Appeals summarized how a warran-
tor might breach an express warranty to make repairs:
Had [the builder] simply guaranteed the condition of the
property as of the date of closing with a Unit Owner,
any breach of that guarantee would necessarily occur at
closing . . . . Here, however, [the builder] additionally
promised to repair if notified timely. The breach of that
covenant to repair does not occur at closing or neces-
sarily when notice is given. Conceptually, the ways in
which one who has contracted to repair could breach that
contract include repudiating the obligation before any
notice is given, or, after being on notice of the defect,
failing to undertake the repairs within a reasonable time,
1 See, Hewitt v. Kirk’s Remodeling & Custom Homes, 49 Kan. App. 2d
506, 310 P.3d 436 (2013); Feinour v. Ricker Co., 255 Ga. App. 651, 566
S.E.2d 396 (2002); Hersh Companies v. Highline Village Assoc., 30 P.3d
221 (Colo. 2001); Lipscomb v. Chilton, 793 P.2d 379 (Utah 1990); Antigua
Condominium v. Melba Investors, 307 Md. 700, 517 A.2d 75 (1986);
Beaudry Motor Co. v. New Pueblo Constructors, 128 Ariz. 481, 626 P.2d
1113 (Ariz. App. 1981); Bulova Watch v Celotex Corp, 46 N.Y.2d 606, 389
N.E.2d 130, 415 N.Y.S.2d 817 (1979); Fowler v. A. & A. Company, 262
A.2d 344 (D.C. 1970). See, also, Snyder v. EMCASCO Ins. Co., 259 Neb.
621, 611 N.W.2d 409 (2000).

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ADAMS v. MANCHESTER PARK
Cite as 291 Neb. 978
expressly refusing to repair, or, after undertaking to
repair, abandoning the work before completion.2
The Adamses did not allege that Southfork breached its
promise in the express warranty to repair or replace material
defects. All of the claims that they did allege accrued more than
4 years before they filed their complaint. I therefore concur that
§ 25-223 bars the Adamses’ claims as a matter of law.
2 Antigua Condominium v. Melba Investors, supra note 1, 307 Md. at 715,
517 A.2d at 82-83. See Ed Miller & Sons, Inc. v. Earl, 243 Neb. 708, 502
N.W.2d 444 (1993).