Pavers, Inc. v. Board of Regents

CoNCLUSIoN
We conclude that because the evidence failed to show that
Stolen committed a physical act that interfered with an officer’s
active performance of a duty, it was insufficient to support
his conviction for obstruction of government operations under
§ 28-901. We therefore reverse the decisions of the Court
of Appeals and the district court, which affirmed the county
court’s decision. We remand the cause with directions to the
Court of Appeals to remand the cause to the district court with
directions to vacate Stolen’s conviction and sentence and to
remand the cause to the county court for dismissal.
reverSed aNd remaNded WitH direCtioNS.
pAVeRS, INC. v. boARD oF ReGeNTS 	559
Cite as 276 Neb. 559
paverS, iNC., a N ebraSka CorporatioN, appellee aNd
CroSS- appellaNt , v . board of regeNtS of tHe
uNiverSity of N ebraSka , a publiC body
Corporate of tHe S tate of N ebraSka ,
appellaNt aNd CroSS- appellee .
755 N.W.2d 400
Filed September 12, 2008. 	No. S-07-671.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
2. Contracts: Appeal and Error. The interpretation of a contract involves a ques-
tion of law, in connection with which an appellate court has an obligation to reach
its conclusions independently of the determinations made by the court below.
3. Contracts. The meaning of a contract and whether a contract is ambiguous are
questions of law.
4. Judgments: Appeal and Error. In a bench trial of a law action, a trial court’s
factual findings have the effect of a jury verdict and will not be set aside on
appeal unless clearly erroneous. The appellate court does not reweigh the evi-
dence but considers the judgment in a light most favorable to the successful party
and resolves evidentiary conflicts in favor of the successful party, who is entitled
to every reasonable inference deducible from the evidence.
5. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitu-
tional, and all reasonable doubts will be resolved in favor of its constitutionality.
6. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitu-
tionality of a statute is on the one attacking its validity.
7. Contracts. When the terms of a contract are clear, they are to be accorded their
plain and ordinary meaning.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

Appeal from the District Court for Lancaster County: J oHN
a. C olborN, Judge. Remanded with directions.
Craig C. Dirrim and Terry C. Dougherty, of Woods &
Aitken, L.L.p., and John C. Wiltse, Senior Associate General
Counsel, University of Nebraska, for appellant.
Timothy R. engler, Adam J. prochaska, and John Selzer, of
Harding & Schultz, p.C., L.L.o., for appellee.
W rigHt, 	C oNNolly, 	gerrard, 	mCC ormaCk, 	and
miller -lermaN, JJ., and S ieverS and moore, Judges.
W rigHt, J.
I. NATURe oF CASe
This is a contract claim by pavers, Inc., against the board
of Regents of the University of Nebraska (University). The
dispute involves a contract for the performance of earthwork
for a student housing project at 16th and Y Streets in Lincoln,
Nebraska. The contract was composed of several documents
prepared by the University, and the bid included price quotes
for 11 separate construction activities.
While pavers was performing the contract, it became appar-
ent that 3 of the 11 activities would greatly exceed the esti-
mated costs as set forth in the contract. Upon completion of
the contract, the University paid pavers what the University
considered to be a reasonable amount, but did not pay the addi-
tional amount pavers claimed for soil disposal, seepage water
removal, and seepage water disposal.
pavers filed a claim with the State Claims board but then
withdrew its claim and initiated an action in the Lancaster
County District Court. The matter proceeded to trial, and
the court awarded pavers a judgment on its claim against
the University. The University has appealed, and pavers has
cross-appealed.
II. SCope oF ReVIeW
[1] Whether a statute is constitutional is a question of law;
accordingly, the Nebraska Supreme Court is obligated to reach
a conclusion independent of the decision reached by the court
560 	276 NebRASKA RepoRTS

below. Stenger v. Department of Motor Vehicles, 274 Neb. 819,
743 N.W.2d 758 (2008).
[2,3] The interpretation of a contract involves a question of
law, in connection with which an appellate court has an obliga-
tion to reach its conclusions independently of the determina-
tions made by the court below. State ex rel. Bruning v. R.J.
Reynolds Tobacco Co., 275 Neb. 310, 746 N.W.2d 672 (2008).
The meaning of a contract and whether a contract is ambigu-
ous are questions of law. Kluver v. Deaver, 271 Neb. 595, 714
N.W.2d 1 (2006).
[4] In a bench trial of a law action, a trial court’s factual find-
ings have the effect of a jury verdict and will not be set aside
on appeal unless clearly erroneous. Henriksen v. Gleason, 263
Neb. 840, 643 N.W.2d 652 (2002). The appellate court does
not reweigh the evidence but considers the judgment in a light
most favorable to the successful party and resolves evidentiary
conflicts in favor of the successful party, who is entitled to
every reasonable inference deducible from the evidence. Id.
III. FACTS
The University and pavers contracted for earthwork, grad-
ing, and overexcavation for a student housing project at 16th
and Y Streets in Lincoln. There were 11 separate construction
activities in the contract. The University’s bid proposal form
described and specified a quantity for each activity. The con-
tractors bid a unit price for each quantity of work. In order to
obtain an estimate for each activity, the unit prices bid on the
activity were multiplied by the University’s estimated quantity
of work for the respective activity. The estimates for all 11
activities were added together to arrive at the “base bid.”
The dispute in this case involves three activities within the
contract: soil disposal, seepage water removal, and seepage
water disposal. pavers bid a unit price of $27.60 per ton for
soil disposal, which is referred to as “work unit 9.” It bid $3.90
per gallon for removal of seepage water, which is referred to
as “work unit 10,” and $3.45 per gallon for seepage water dis-
posal, which is referred to as “work unit 11.”
During the performance of the contract, the actual quanti-
ties of seepage water and contaminated soil to be removed and
pAVeRS, INC. v. boARD oF ReGeNTS 	561
Cite as 276 Neb. 559

disposed of greatly exceeded the amounts estimated by the
University. The contract estimated that pavers would dispose
of 1,400 tons of soil, whereas the actual amount disposed of
was 8,071.29 tons. The contract estimated that pavers would
remove and dispose of 1,200 gallons of seepage water, whereas
the actual amount removed and disposed of was 173,900 gal-
lons. pavers claimed that these overruns increased the amounts
due under the contract by $184,127.60 for soil disposal,
$673,530 for seepage water removal, and $595,815 for seepage
water disposal.
on November 5, 2003, pavers faxed a letter to the University’s
consultant stating that pavers was experiencing substantial over-
runs in the removal of the contaminated materials. However,
pavers did not submit a “Change order” for these overruns
until after the project was completed. The University’s lead
project manager, Tracy Aksamit, testified that it was antici-
pated at the outset that a change order would be issued after the
project was over in order to take into account any increases or
decreases in quantities. Aksamit stated that it was not necessary
for pavers to submit a change order before doing the work.
The district court found that “[t]he University’s consultant
and inspector” were aware of the cost overruns because they
were on the project site regularly. It further found that despite
having knowledge of the overruns, the University instructed
pavers to proceed with the work because the project needed to
be completed as quickly as possible.
based on the unit prices submitted in its bid and the quan-
tities of work performed, pavers sought payment in the total
amount of $1,714,996.40. However, based on its interpretation
of the contract, the University did not pay the unit prices bid by
pavers for work units 9 through 11. Instead, the University paid
a total of $379,336.54, which it claimed was fair and equitable
for the work done on the contract.
pavers filed a claim with the State Claims board to compel
full payment. The board notified pavers that pursuant to Neb.
Rev. Stat. § 81-8,305 (Reissue 2003), either party could object
in writing to submission of the dispute to the board and initi-
ate an action in the district court for Lancaster County. pavers
then filed a written objection to submission of the dispute to
562 	276 NebRASKA RepoRTS

the board and initiated this breach of contract action in the
district court.
The University moved to dismiss, claiming that § 81-8,305
is unconstitutional because it allows a claimant to initiate an
action in the district court in violation of article VIII, § 9, of
the Nebraska Constitution. The court found the statute to be
constitutional, and the University’s motion was overruled.
The matter was tried to the court, and the issue was whether
the unit prices for work units 9 through 11 should be equitably
adjusted due to the overruns associated with these work units.
The district court applied a total cost method of adjustment to
the contract price. It awarded pavers $1,009,773.52, which was
the difference between pavers’ total costs of $1,389,110.06 and
the amount paid of $379,336.54.
The University has appealed the district court’s determi-
nation that § 81-8,305 is constitutional and the award of
$1,009,773.52 to pavers. pavers has cross-appealed and seeks
an award for the full amount of the contract in the sum of
$1,714,996.40 minus the amount already paid.
IV. ASSIGNMeNTS oF eRRoR
The University assigns as error, summarized and restated,
that the district court erred in finding that § 81-8,305 is consti-
tutional and that pavers was entitled to recover under the total
cost method of damages, in applying the contract’s equitable
adjustment provision to all of the contract work items, and
in failing to limit the adjustment to work units 9 through 11.
pavers cross-appeals that the district court erred in limiting
its damages.
V. ANALYSIS
1. C oNStitutioNality of S tatute
[5,6] We first address the constitutionality of § 81-8,305,
and the following legal principles guide our review: A statute
is presumed to be constitutional, and all reasonable doubts
will be resolved in favor of its constitutionality. Stenger v.
Department of Motor Vehicles, 274 Neb. 819, 743 N.W.2d 758
(2008). The burden of establishing the unconstitutionality of a
statute is on the one attacking its validity. Id. Whether a statute
pAVeRS, INC. v. boARD oF ReGeNTS 	563
Cite as 276 Neb. 559

is constitutional is a question of law; accordingly, the Nebraska
Supreme Court is obligated to reach a conclusion independent
of the decision reached by the court below. Id.
Section 81-8,305 provides:
(1) If agreed to by the claimant and the contracting
agency, the State Claims board shall have the authority to
consider, ascertain, adjust, compromise, settle, determine,
or allow any contract claim. Upon receipt of a contract
claim, the Risk Manager shall immediately notify the
claimant and the contracting agency of the option of hav-
ing the dispute submitted to the State Claims board.
(2) If the claimant and the contracting agency agree
to submit the dispute to the State Claims board as pro-
vided in subsection (1) of this section, the board shall
resolve such dispute in the manner provided under the
State Miscellaneous Claims Act. For claims submitted to
the board under this subsection, the contracting agency
shall provide the board with all documents and informa-
tion relating to the claim which the contracting agency
obtained during its investigation.
(3) If either the claimant or the contracting agency
objects in writing to submission of the dispute to the
State Claims board within ninety days of mailing of the
notice required in subsection (1) of this section, the board
shall have no further jurisdiction over the claim and the
claimant may initiate an action in the district court of
Lancaster County.
The University contends that § 81-8,305 violates the plain
language of article VIII, § 9, of the Nebraska Constitution,
which states:
The Legislature shall provide by law that all claims
upon the treasury shall be examined and adjusted as
the Legislature may provide before any warrant for the
amount allowed shall be drawn. Any party aggrieved by
the action taken on a claim in which he has an interest
may appeal to the district court.
The University argues § 81-8,305 is unconstitutional, because
it allows a claimant to bypass the constitutional requirement
that all claims against the State shall be examined and adjusted
564 	276 NebRASKA RepoRTS

and allows the claimant to file a direct action against the State
in the district court for Lancaster County. It contends that the
constitution prohibits direct actions and that claims against the
State may come to the district court only by way of appeal.
We are required to reach our determination of the constitu-
tionality of § 81-8,305 independently of the decision reached
by the trial court. See Stenger v. Department of Motor Vehicles,
274 Neb. 819, 743 N.W.2d 758 (2008). Although article VIII,
§ 9, requires that all claims upon the treasury be examined and
adjusted before any warrant in the amount allowed is drawn,
it also grants the Legislature authority to provide the method
for examination and adjustment of the claim. by virtue of
§ 81-8,305, the Legislature has given the State Claims board
the authority to adjust, determine, or allow any contract claim.
However, under § 81-8,305, the Legislature has also provided
that if either the claimant or the contracting agency objects to
submission of the dispute to the State Claims board, the claim-
ant may initiate an action in the Lancaster County District
Court. This is another method by which the claim may be
examined and adjusted.
We find nothing in article VIII, § 9, which limits a claimant’s
right to have the claim examined and adjusted by the district
court. This is consistent with article V, § 22, of the Nebraska
Constitution, which provides: “The state may sue and be sued,
and the Legislature shall provide by law in what manner and
in what courts suits shall be brought.” Article VIII, § 9, confers
authority upon the Legislature to determine how a claim upon
the treasury shall be examined and adjusted. The only limita-
tion set forth in article VIII, § 9, is that all claims must be
examined and adjusted before any warrant shall be drawn.
The University argues that the phrase “may appeal to the
district court” in article VIII, § 9, presumes that a litigant can-
not initiate an action in the district court. We disagree. The
constitution does not mandate that an aggrieved party must
have its claim adjudicated by the State Claims board before
bringing suit in the district court. The claimant is given the
right to appeal a decision of the State Claims board to the dis-
trict court, but that is not a limitation on how the claim shall be
examined and adjusted.
pAVeRS, INC. v. boARD oF ReGeNTS 	565
Cite as 276 Neb. 559

The cases relied upon by the University involved constitu-
tional provisions that did not specifically grant the Legislature
authority to determine how claims were to be examined and
adjusted. prior to its amendment in 1964, article VIII, § 9,
mandated that “all claims upon the treasury, shall be examined
and adjusted by the auditor, and approved by the secretary
of state, before any warrant for the amount allowed shall be
drawn.” See 1963 Neb. Laws, ch. 302, § 2(3), p. 896. This sec-
tion contained a specific limitation that claims “be examined
and adjusted by the auditor, and approved by the secretary of
state.” Now, article VIII, § 9, delegates to the Legislature the
authority to determine how claims on the treasury are to be
examined and adjusted.
Having concluded that § 81-8,305 is constitutional, we pro-
ceed with the remaining issue: whether there should be an equi-
table adjustment of the contract and, if so, by what method.
2. C oNtraCt diSpute
(a) pavers’ Claim
pavers contracted with the University to perform earthwork
(overexcavation and backfill), add crushed rock for stabiliza-
tion, construct a chain link fence and a silt fence, clear the site,
remove contaminated soil, and remove and dispose of seepage
water. The project proceeded without any major changes to the
type of construction activities, and most of the work was com-
pleted by the end of 2003.
For each work unit, the University bid proposal form con-
tained an estimated quantity. pavers submitted a unit price
based on the quantity set forth on the bid proposal form. The
form stated that the contract could be modified by change
orders which increased or decreased the “Contract Sum” by the
actual quantities for each of the work units.
Substantial overruns on the University project were experi-
enced for the disposal of soil and the removal and disposal of
seepage water (work units 9 through 11). The actual amount
of soil disposed of was 8,071.29 tons, compared to the esti-
mate of 1,400 tons. The actual seepage water removed and
disposed of was 173,900 gallons, compared to the estimate of
1,200 gallons.
566 	276 NebRASKA RepoRTS

As the project progressed, pavers notified the University
of the overruns. by fax, pavers notified Aksamit, the lead
project manager, and the University’s consultant of the sub-
stantial overruns on work units 9 through 11. The University
was also aware that cost overruns were occurring, because its
lead project manager and its consultant were regularly on the
project site. Without requiring a change order for work units 9
through 11, the University told pavers to continue working on
the project, even though the University knew that large quan-
tity overruns, and therefore substantial increases in cost, were
imminent. The University instructed pavers to proceed with the
work despite these overruns because the project needed to be
completed as soon as possible.
During the course of the project, pavers maintained detailed
records of its expenses, including labor costs, disposal fees,
subcontractor charges, trucking expenses, and miscellaneous
costs (crushed rock, fuel, and incidentals). pavers did not keep
a separate record of the expenses for each work unit, nor was it
required by the contract to do so. The only cost documentation
required by the contract for a separate work unit was a record
of the soil disposal costs and the seepage water disposal costs
associated with the landfill and the water treatment facility.
pavers submitted a total claim of $1,714,996.40 for the
work performed, which included the cost of the large over-
runs of quantity on work units 9 through 11. pavers asserted
that the contract required that payment be made at the contract
unit price bid and that there should not be an equitable adjust-
ment to the contract. because of the substantial changes in the
quantity of soil disposed of and seepage water removed and
disposed of (work units 9 through 11), the University claimed
that the unit prices for this work should be equitably adjusted.
The district court did not determine what would have been
an equitable adjustment to the unit prices for work units 9
through 11. Instead, it concluded that a total cost method should
be used to adjust the contract. The court found that pavers
incurred $1,216,383.59 in costs and assigned a 14.2-percent
overhead for general administrative costs. It further found that
the total costs for the project were $1,389,110.06, which did
not include any profit.
pAVeRS, INC. v. boARD oF ReGeNTS 	567
Cite as 276 Neb. 559

The district court concluded that neither awarding pavers its
full unit price for work units 9 through 11 nor requiring pavers
to pay out of its own pocket the increased costs would be
equitable. The court found that the University failed to meet its
burden for an equitable adjustment to the unit prices. However,
it reasoned that a total cost method should be applied, since
pavers’ exact losses and increased expenses were difficult to
determine “because expenses were not tracked on a per work
unit basis.” The court found that the total costs expended by
pavers to complete the project were reasonable.
(b) Adjustment of Unit prices
The issue before this court is whether the unit prices for
work units 9 through 11 should be reduced because there were
large increases in the quantity of soil disposed of and seepage
water removed and disposed of.
The University claims the district court erred in applying
a total cost method to adjust the contract. In asking for an
equitable adjustment, the University relies upon article 7 of
the general conditions of the contract for construction. Article
7 provides:
7.1.4 If unit prices are stated in the Contract Documents
or subsequently agreed upon, and if quantities originally
contemplated are so changed in a proposed Change order
or Construction Change Directive that application of such
unit prices to quantities of Work proposed will cause
substantial inequity to the owner or Contractor, the appli-
cable unit prices shall be equitably adjusted.
The University also claims the contract states that for work
units 9 and 11, the “unit price” for disposal of the soil or water
could not be more than 15 percent above the actual “unit rate”
disposal cost incurred for disposal from a permitted landfill,
land application site, or authorized water treatment facility.
brief for appellant at 39-40. In effect, the University contends
that pavers was entitled to no more than 15 percent above the
landfill fees and water treatment costs for disposal of the soil
and water respectively.
The provision of the contract relied upon by the University
states:
568 	276 NebRASKA RepoRTS

pART 4- bIDDING AND CoST VeRIFICATIoN
MeASUReMeNT AND pAYMeNT
The Contractor shall accept the compensation as herein
provided, in full payment for furnishing all materials, labor,
tools, equipment, and incidentals necessary to complete
the Work as Lump Sum price or Unit price Items. . . .
. . . .
SoIL DISpoSAL shall include all equipment, materi-
als [and] landfill fees and labor necessary for removing
and hauling contaminated soils . . . based on the weight
of the disposed soil in tons. . . . The unit rate for soil dis-
posal cannot be more than 15% above the actual unit rate
disposal cost incurred from a permitted landfill or land
application site. . . . payment will be made at the contract
unit price per ton for “SoIL DISpoSAL”.
. . . .
SeepAGe WATeR DISpoSAL shall include all equip-
ment, materials [and] landfill fees and labor necessary for
removing, hauling and disposing of seepage water which
is based in gallon units. The unit rate for seepage water
disposal cannot be more than 15% above the actual unit
rate disposal cost incurred from an authorized water treat-
ment facility. Subcontract disposal costs must accompany
the contractor’s invoice as supporting documentation to
verify that mark-up does not exceed 15%. . . . payment
will be made at the contract unit price per gallon for
“Seepage Water Disposal”.
[7] our reading of these provisions does not lead us to
the conclusion that the unit price was limited to a 15-percent
markup of the unit rate charged by the landfill or the water
treatment facility. We agree with the district court’s deter-
mination that the contract specifications in work units 9 and
11 did not limit the unit price to 15 percent above the actual
disposal costs, as argued by the University. These sections of
the contract merely limited the markup by pavers on the unit
rate disposal costs from a landfill and/or water treatment facil-
ity to 15 percent as a part of the unit price. each part of this
contract clearly provides that payment will be made at the
contract unit price. When the terms of a contract are clear, they
pAVeRS, INC. v. boARD oF ReGeNTS 	569
Cite as 276 Neb. 559

are to be accorded their plain and ordinary meaning. Katherine
R. Napleton Trust v. Vatterott Ed. Ctrs., 275 Neb. 182, 745
N.W.2d 325 (2008).
The University next argues that the district court erred by
using the total cost method in making an adjustment. The
University relies upon Pacific Architects and Engineers, Inc.
v. United States, 491 F.2d 734, 739 (Ct. Cl. 1974), where the
court stated:
It is well established that the equitable adjustment
may not properly be used as an occasion for reducing or
increasing the contractor’s profit or loss, or for converting
a loss to a profit or vice versa, for reasons unrelated to a
[contract] change. A contractor who has underestimated
his bid or encountered unanticipated expense or ineffi-
ciencies may not properly use a change order as an excuse
to reform the contract or to shift his own risks or losses
to the Government.
Pacific Architects and Engineers, Inc. v. United States, supra,
does not support the University’s position, because it is the
University, not pavers, that seeks an adjustment or reforma-
tion of the contract. It is the University that underestimated the
quantity of soil and water to be removed and disposed of, and
it is the University that seeks to reform the contract and shift
the costs to pavers.
pavers seeks to enforce the unit price of the contract it bid
on work units 9 through 11. The University seeks to reform
the contract and shift its risk of loss to the contractor. Since
the University is asking for a change in the contract, the bur-
den is upon the University to establish a basis for the relief
sought. The University had the burden to establish why the unit
prices should be equitably adjusted, and it has not sustained
that burden.
The district court stated that “the University has failed to
meet its burden regarding its proposed equitable adjustment to
the unit prices.” In a bench trial of a law action, a trial court’s
factual findings have the effect of a jury verdict and will not
be set aside on appeal unless clearly erroneous. Henriksen v.
Gleason, 263 Neb. 840, 643 N.W.2d 652 (2002). The appellate
court does not reweigh the evidence but considers the judgment
570 	276 NebRASKA RepoRTS

in a light most favorable to the successful party and resolves
evidentiary conflicts in favor of the successful party, who is
entitled to every reasonable inference deducible from the evi-
dence. Id.
pavers argues that the equitable adjustment provisions of the
contract do not apply and that the district court should not have
limited pavers’ award by adjusting the contract price. pavers
claims that the court erred when it concluded that some form
of equitable adjustment should be applied to the contract price.
We agree.
Although it was not error for the district court to examine
whether an equitable adjustment to the unit prices was required,
the University did not prove that such an adjustment was war-
ranted. The record does not disclose why the court did not
award pavers the full amount of the contract, except that the
court was attempting to reach what it considered an equitable
result under the facts presented. However, there is no showing
that the University sustained its burden of proof to entitle it to
an equitable adjustment of the unit prices.
We conclude the district court erred in not awarding pavers
the full amount of the contract. Without requesting an adjust-
ment in the unit prices, the University directed pavers to con-
tinue working on the project. The University knew large over-
runs of quantity and, therefore, increased costs were occurring
on a daily basis. The University was not without a remedy, as
the contract allowed the University to seek an equitable adjust-
ment while the work was being performed. If the University did
not agree with pavers as to what unit price should be charged,
the University could have proceeded under the contract to seek
an adjustment of the unit price.
Article 7 of the contract gave the University a method
for dealing with changes in the quantities of the work to
be performed. paragraph 7.3 permits the University to issue
“Construction Change Directives” to change the work and pro-
pose a basis for adjustment of the contract sum.
7.3.1 . . . The owner may by Construction Change
Directive, without invalidating the Contract, order changes
in the Work within the general scope of the Contract
consisting 	of 	additions, 	deletions 	or 	other 	revisions,
pAVeRS, INC. v. boARD oF ReGeNTS 	571
Cite as 276 Neb. 559

the Contract Sum and Contract Time being adjusted
accordingly.
7.3.2 A Construction Change Directive shall be used
in the absence of total agreement on the terms of a
Change order.
. . . .
7.3.6 If the Contractor does not respond promptly or
disagrees with the method for adjustment in the Contract
Sum, the method and the adjustment shall be determined
by the Architect on the basis of reasonable expenditures
. . . including, in case of an increase in the Contract Sum,
a reasonable allowance for overhead and profit.
before the work was completed, the University could have
sought relief under article 7 of the contract based on the fact
that the quantities had increased substantially from the original
estimates. once it was determined that the quantities had been
greatly underestimated, the University had the opportunity to
seek an equitable adjustment. However, the University did not
tell pavers to stop the work and did not attempt to seek an
equitable adjustment before the work had been performed.
Instead, the University directed pavers to complete the proj-
ect and now seeks to reduce the unit prices. We find nothing in
the contract that permits the University to unilaterally reduce the
unit prices in the contract after the work has been performed.
pavers performed the contract as directed by the University and
should receive payment for the unit prices bid on the contract.
It was not the province of the district court to rewrite or
adjust the contract to reflect the court’s view of what was fair.
See Kozlik v. Emelco, Inc., 240 Neb. 525, 483 N.W.2d 114
(1992). each part of the contract was bid based upon a unit
price. It was incumbent upon the University to seek an adjust-
ment of the unit prices before the work was completed or sus-
tain its burden of proof regarding an equitable adjustment to
the unit prices. because the University did neither, we award
pavers the contract price.
VI. CoNCLUSIoN
For the reasons set forth herein, we remand the cause to
the district court with directions to enter judgment in favor
572 	276 NebRASKA RepoRTS

of pavers in the amount of $1,714,996.40 less credit for the
amounts paid by the University.
remaNded WitH direCtioNS.
H eaviCaN, C.J., and S tepHaN, J., not participating.
STATe v. WHITe 	573
Cite as 276 Neb. 573
S tate of N ebraSka , appellee , v .
aaroN WHite , appellaNt .
755 N.W.2d 604
Filed September 12, 2008. 	Nos. S-07-1152, S-07-1153.
1. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
2. Sentences: Probation and Parole: Appeal and Error. Whether the sentence
imposed is probation or incarceration is a matter within the discretion of the trial
court, whose judgment denying probation will be upheld in the absence of an
abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
Appeal from the District Court for Lancaster County, earl
J. W ittHoff, Judge, on appeal thereto from the County Court
for Lancaster County, laurie yardley, Judge. Judgment of
District Court affirmed.
Dennis R. Keefe, Lancaster County public Defender, and
John C. Jorgensen for appellant.
Jon 	bruning, 	Attorney 	General, 	and 	Nathan 	A. 	Liss
for appellee.
H eaviCaN, 	C.J., 	W rigHt, 	C oNNolly, 	gerrard, 	S tepHaN,
mCC ormaCk, and miller -lermaN, JJ.
W rigHt, J.
NATURe oF CASe
These consolidated appeals are before the court without oral
argument pursuant to Neb. Ct. R. App. p. § 2-111(e)(5)(a).
Aaron White entered pleas of no contest to two charges of