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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

Troy M. Fuelberth and Julie K. Fuelberth, husband 

and wife, appellants, v. Heartland Heating & 

Air Conditioning, Inc., a Nebraska 

corporation, appellee.

___ N.W.2d ___

Filed December 11, 2020. No. S-20-178.

1. Summary Judgment: Appeal and Error. 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 those facts and 

that the moving party is entitled to judgment as a matter of law.

2. ____: ____. An appellate court reviews the district court’s grant of summary judgment de novo, viewing the record in the light most favorable 

to the nonmoving party and drawing all reasonable inferences in that 

party’s favor.

3. 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 

2016) statute of limitations runs from the date of substantial completion of the project, not the date of any specific act which resulted in 

the defect.

4. Limitations of Actions. A cause of action accrues and the statute of 

limitations begins to run when the aggrieved party has the right to institute and maintain suit.

5. Actions: Breach of Contract: Limitations of Actions. If a contract is 

divisible, breaches of its severable parts give rise to separate causes of 

action, and the statute of limitations will generally begin to run at the 

time of each breach. If, however, a contract is indivisible, an action can 

be maintained on it only when a breach occurs or the contract is in some 

way terminated, and the statute of limitations will begin to run from that 

time only.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/15/2021 01:07 AM CST
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FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

6. Contracts. A contract which in its nature and purpose is susceptible of 

division and apportionment is divisible and severable.

Appeal from the District Court for Cedar County: James G. 

Kube and Bryan C. Meismer, Judges. Reversed and remanded 

for further proceedings.

Allison Rockey Mason and David E. Copple, of Copple, 

Rockey & Schlecht, P.C., L.L.O., for appellants.

Todd B. Vetter and Luke P. Henderson, of Fitzgerald, Vetter, 

Temple, Bartell & Henderson, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Papik, J.

Troy M. Fuelberth (Fuelberth) and Julie K. Fuelberth hired 

Heartland Heating & Air Conditioning, Inc. (Heartland), to 

design, construct, and install an interior in‐floor geothermal 

system and an exterior icemelt system for a shop building on 

their farm. The Fuelberths later sued Heartland, alleging that 

Heartland’s work was defective. The Fuelberths now appeal 

from the district court’s entry of summary judgment in favor 

of Heartland on statute of limitations grounds. Because we 

find that Heartland was not entitled to summary judgment, we 

reverse, and remand for further proceedings.

BACKGROUND

Parties’ Dispute.

In 2009, the Fuelberths decided to build a shop building on 

their farm. Fuelberth hired a general contractor to construct the 

shop building, and he arranged for other contractors to perform various tasks related to the building. Fuelberth selected 

Heartland to design, construct, and install heating and air 

conditioning systems. Fuelberth’s primary contact at Heartland 

was Mike Wiederin, a shareholder, officer, and employee 

of Heartland.
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FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

Fuelberth initially contacted Wiederin in 2010. Fuelberth 

expressed interest in having an interior in‐floor geothermal 

system that would heat and cool the building and an exterior 

icemelt system that would melt ice off the driveway. After 

some discussions, Heartland provided Fuelberth with a written 

estimate for the project.

Heartland, through Wiederin, agreed to design, construct, 

and install the interior system and the exterior system. The 

agreement was oral. Heartland thereafter designed, constructed, 

and installed both systems.

On November 14, 2016, the Fuelberths sued Heartland. In 

the complaint, they alleged that on or about November 15, 

2012, the exterior system failed and that in the summer of 

2016, they discovered that the interior system had also failed. 

The Fuelberths alleged that the failures had occurred as a result 

of Heartland’s defective work. According to the Fuelberths, 

they faced significant repair and replacement costs as a result 

of the systems’ failures. In their complaint, the Fuelberths 

alleged two theories of recovery: negligence and breach of an 

implied warranty of workmanlike performance.

Summary Judgment.

After the parties engaged in some discovery, Heartland 

moved for summary judgment. At a hearing on the motion, 

Heartland argued that it was entitled to summary judgment on 

statute of limitations grounds.

In support of its summary judgment motion, Heartland 

offered Wiederin’s deposition in which he testified that both 

the interior system and the exterior system were completely 

installed by January 2012. Heartland also offered Fuelberth’s 

deposition. In his deposition, Fuelberth acknowledged that the 

interior system was “[p]artially” working by January 2012, 

but he contended that it was not working properly. Fuelberth 

also testified that the exterior system was not operational 

until November 2012 when Wiederin came to the property to 

pour glycol into the system and take other steps to make it 
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FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

operational. Fuelberth testified that Wiederin performed this 

work sometime between November 1 and 12, 2012.

The district court entered summary judgment in favor of 

Heartland. The district court concluded that the Fuelberths’ 

claims were subject to the 4‐year statute of limitations set forth 

in Neb. Rev. Stat. § 25‐223 (Reissue 2016) and that, under that 

statute, the limitations period begins to run upon substantial 

completion of the project. The district court then analyzed 

whether there were genuine issues of material fact as to when 

substantial completion occurred. It did so by considering the 

interior system and the exterior system separately.

As to the interior system, the district court determined there 

was no dispute that it was substantially complete by January 

2012. Because the Fuelberths’ complaint was not filed until 

November 14, 2016, the district court found that Heartland 

was entitled to summary judgment on the Fuelberths’ claims 

concerning the interior system.

The district court also found that Heartland was entitled to 

summary judgment on the Fuelberths’ claims concerning the 

exterior system. Here, the district court, relying on Fuelberth’s 

deposition testimony, concluded that there was no dispute that 

the exterior system was substantially complete by no later 

than November 12, 2012. The district court then reasoned that 

because the Fuelberths filed their complaint more than 4 years 

after November 12, 2012, their claims as to the exterior system 

were also barred by the statute of limitations.

The Fuelberths timely appealed.

ASSIGNMENT OF ERROR

The Fuelberths assign three errors on appeal, but they can 

be effectively restated as one: The district court erred by 

granting Heartland summary judgment on statute of limitations grounds.

STANDARD OF REVIEW

[1] An appellate court will affirm a lower court’s grant of 

summary judgment if the pleadings and admitted evidence 
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307 Nebraska Reports

FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

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. Russell v. Franklin County, 306 Neb. 546, 946 

N.W.2d 648 (2020).

[2] An appellate court reviews the district court’s grant of 

summary judgment de novo, viewing the record in the light 

most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor. Id.

ANALYSIS

Arguments on Appeal.

The sole issue in this appeal is whether Heartland was entitled to summary judgment on statute of limitations grounds. The 

parties agree that § 25‐223 sets forth the statute of limitations 

governing the Fuelberths’ claims. See Murphy v. Spelts‐Schultz 

Lumber Co., 240 Neb. 275, 481 N.W.2d 422 (1992) (holding 

that § 25‐223 applies to claims concerning negligent construction of improvement on real estate brought against contractors 

or builders, whether based on negligence or breach of warranty). Section 25‐223 provides, in part, as follows:

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 construction of an improvement to real property shall be commenced within four years after any alleged act or omission constituting such breach of warranty or deficiency. 

If such cause of action is not discovered and could not be 

reasonably discovered within 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 reasonably lead to such 

discovery, whichever is earlier.

[3] In Adams v. Manchester Park, 291 Neb. 978, 983, 871 

N.W.2d 215, 218‐19 (2015), we stated that “where the basis 

of the claim is improper workmanship resulting in defective 
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307 Nebraska Reports

FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

construction, the § 25‐223 statute of limitations runs from 

the date of substantial completion of the project, not the date 

of any specific act which resulted in the defect.” Heartland 

argued in the district court and continues to argue here that 

the interior system was substantially completed no later than 

January 31, 2012, and the exterior system was substantially 

completed no later than November 12, 2012. The district 

court agreed with Heartland that there was no genuine issue 

of fact that the respective systems were substantially complete 

by these dates and granted Heartland summary judgment on 

this basis.

The Fuelberths argue on appeal that there were genuine 

issues of material fact as to when substantial completion 

occurred. While they make separate arguments with respect 

to both the interior system and the exterior system, they also 

assert that the systems functioned together and that one system 

could not be considered substantially complete if the other was 

not also substantially complete. We begin our analysis with the 

question of whether the Fuelberths’ claims accrued at separate 

times or whether they accrued on the same substantial completion date.

One Statute of Limitations Period or Two?

As noted, we have held that where the basis of a claim 

is improper workmanship resulting in defective construction, 

the statute of limitations period under § 25‐223 begins to run 

from the date of substantial completion of the project. In this 

case, that raises the question of whether the installation of the 

interior system and the exterior system was one project such 

that the statute of limitations would begin to run when the 

entire project was substantially complete or two separate projects such that the statute of limitations on a claim related to 

improper workmanship in one system would begin to run when 

that system was substantially complete.

[4] A statute of limitations begins to run as soon as the 

claim accrues. See Alston v. Hormel Foods Corp., 273 Neb. 

422, 730 N.W.2d 376 (2007). A cause of action accrues and 
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Cite as 307 Neb. 1002

the statute of limitations begins to run when the aggrieved 

party has the right to institute and maintain suit. Pennfield 

Oil Co. v. Winstrom, 272 Neb. 219, 720 N.W.2d 886 (2006). 

Accordingly, if the Fuelberths had the right to sue Heartland 

for defective construction as soon as one system was substantially complete, the statute of limitations on the cause of 

action related to that system would begin to run before the 

statute of limitations began to run on a cause of action related 

to the other system. Alternatively, if the Fuelberths could not 

institute a suit until the agreed‐to work as a whole was substantially complete, a single statute of limitations would begin 

to run on claims related to defective construction of any part 

of the project at that point.

[5] Whether the Fuelberths could institute and maintain 

suit as soon as one system was substantially complete or were 

required to wait until the substantial completion of the work as 

a whole depends on whether the agreement between Heartland 

and the Fuelberths was divisible or indivisible. If a contract is 

divisible, “breaches of its severable parts give rise to separate 

causes of action, [and] the statute of limitations will generally begin to run at the time of each breach.” 15 Richard A. 

Lord, A Treatise on the Law of Contracts by Samuel Williston 

§ 45.20 at 403‐04 (4th ed. 2014). If, however, a contract is 

indivisible, “an action can be maintained on it only when a 

breach occurs or the contract is in some way terminated, and 

the statute of limitations will begin to run from that time only.” 

Id. at 405.

[6] We have previously treated the question of whether 

a contract was divisible or indivisible as one of fact. See 

Honstein Trucking v. Sandhills Beef, Inc., 209 Neb. 422, 308 

N.W.2d 331 (1981). In an early case, we observed that generally where a contract has several undertakings each supported 

by distinct consideration, it is divisible. See Burwell & Ord 

Irrigation & Power Co. v. Wilson, 57 Neb. 396, 77 N.W. 

762 (1899). More recently, we have indicated that whether a 

contract is divisible or indivisible is a question of intentions 
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FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

apparent in the instrument. See Gaspar v. Flott, 209 Neb. 260, 

307 N.W.2d 500 (1981). In an unambiguous contract, it is to 

be determined from the language, the subject matter, and the 

construction placed upon it by the parties in light of the surrounding circumstances. Id. “A contract which in its nature and 

purpose is susceptible of division and apportionment is divisible and severable.” Reichert v. Mulder, 121 Neb. 11, 14, 235 

N.W. 680, 682 (1931). See, also, Gaspar, supra.

In this case, there are genuine issues of fact as to whether 

the agreement between Heartland and the Fuelberths was divisible or indivisible. The subject matter of the agreement was the 

design and installation of both an interior system and an exterior system, but there was evidence that the parties intended 

to enter an agreement in which the Fuelberths would pay one 

sum for all the work Heartland agreed to perform, as opposed 

to several undertakings supported by distinct consideration. In 

August 2010, Heartland gave a written estimate of the scope 

of work to be completed. That written estimate described the 

project as an installation of floor heating in a shop in various 

numbered “zones.” Those zones included a number of locations 

in the interior of the shop and another labeled “(7) ICE MELT.” 

The description went on to state that the bid included labor 

and various specified parts and equipment and totaled $78,000. 

There is no indication in the written estimate that the Fuelberths 

had agreed to pay a certain price for the exterior system and 

another price for the interior system. Further, Fuelberth testified in his deposition that in negotiating the agreement with 

Heartland, “we didn’t change components much, it was like [a] 

package deal[,] we’re going to do this, this is what it’s going 

to cost.”

If the parties’ agreement was, in fact, indivisible, the 

Fuelberths’ cause of action did not accrue until the entire project was substantially complete. In order to assess Heartland’s 

entitlement to summary judgment, then, we must consider 

whether there were genuine issues of material fact as to when 

the project as a whole was substantially complete.
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FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

Substantial Completion.

We find that a reasonable fact finder could conclude that 

the project as a whole was not substantially complete until 

November 12, 2012. Fuelberth testified at his deposition 

that the exterior system was not operational until sometime 

between November 1 and 12, 2012, when Wiederin came to 

the Fuelberths’ property to pour glycol into the system and take 

other steps necessary to ready it for operation.

If the Fuelberths’ claims accrued on November 12, 2012, 

their complaint was timely filed. Although the district court 

was correct that the Fuelberths filed their complaint more than 

4 years after November 12, 2012, it does not inevitably follow 

that the complaint filed on November 14, 2016, was untimely. 

A Nebraska statute, Neb. Rev. Stat. § 25‐2221 (Reissue 2016), 

provides a general rule for computing time. We have previously applied this rule in determining whether an action was 

timely filed under a civil statute of limitations. See George P. 

Rose Sodding & Grading Co. v. Dennis, 195 Neb. 221, 237 

N.W.2d 418 (1976). Section 25‐2221 provides, in relevant part, 

as follows:

Except as may be otherwise more specifically provided, the period of time within which an act is to be 

done in any action or proceeding shall be computed by 

excluding the day of the act, event, or default after which 

the desigated period of time begins to run. The last day 

of the period so computed shall be included unless it is a 

Saturday, a Sunday, or a day during which the offices of 

courts of record may be legally closed as provided in this 

section, in which event the period shall run until the end 

of the next day on which the office will be open.

Under § 25‐2221, if the Fuelberths’ cause of action accrued 

on November 12, 2012, the statute of limitations started to run 

on the following day, November 13, 2012. The last day of the 

4‐year period as measured from that day would be November 

12, 2016. However, November 12, 2016, was a Saturday. 

Under § 25‐2221, then, the period of limitations would run 
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FUELBERTH v. HEARTLAND HEATING & AIR CONDITIONING

Cite as 307 Neb. 1002

until the following Monday, November 14, 2016. That is the 

day on which the Fuelberths filed their complaint.

Disposition.

Because a reasonable finder of fact could have concluded 

that Heartland and the Fuelberths entered into an indivisible 

contract to design, construct, and install both the interior system and the exterior system and that the entire project was 

not substantially complete until November 12, 2012, the district court erred by entering summary judgment in favor of 

Heartland on statute of limitations grounds.

CONCLUSION

For reasons we have explained, the district court erred by 

granting summary judgment in favor of Heartland. We thus 

reverse the district court’s grant of summary judgment and 

remand the cause to the district court for further proceedings.

Reversed and remanded for 

further proceedings.