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FREEDOM SPECIALTY CONTRACTING v. NICHOL FLATS

Cite as 28 Neb. App. 797

Freedom Specialty Contracting, Inc., appellee, 

v. Nichol Flats, LLC, appellant.

___ N.W.2d ___

Filed September 1, 2020. No. A-19-646.

1. Mechanics’ Liens: Foreclosure: Equity. An action to foreclose a construction lien is one grounded in equity.

2. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record and reaches 

a conclusion independent of the findings of the trial court, provided, 

where credible evidence is in conflict on a material issue of fact, the 

appellate court considers and may give weight to the fact that the trial 

judge heard and observed the witnesses and accepted one version of the 

facts rather than another.

3. Breach of Contract: Damages. A suit for damages arising from breach 

of a contract presents an action at law.

4. 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.

5. Contracts. Contract clauses requiring that any modifications to the contract be made in writing are valid and enforceable in Nebraska.

6. Contracts: Substantial Performance. Substantial performance is 

shown when all the essential elements necessary for the full accomplishment of the purposes of the contract have been performed with such an 

approximation to complete performance that the owner obtains substantially what is called for by the contract.

7. Mechanics’ Liens. Neb. Rev. Stat. § 52-136(1)(a) (Reissue 2010) 

speaks clearly as to the right to a construction lien only with respect to 

services performed or materials furnished, not with respect to services 

intended to be performed or materials intended to be furnished.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Affirmed as modified.

Nebraska Supreme Court Online Library

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

09/01/2020 09:07 AM CDT
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FREEDOM SPECIALTY CONTRACTING v. NICHOL FLATS

Cite as 28 Neb. App. 797

Megan S. Wright and Austin L. McKillip, of Cline, Williams, 

Wright, Johnson & Oldfather, L.L.P., for appellant.

Patrick T. Vint and Todd W. Weidemann, of Woods & 

Aitken, L.L.P., for appellee.

Moore, Chief Judge, and Pirtle and Arterburn, Judges.

Pirtle, Judge.

INTRODUCTION

Nichol Flats, LLC, appeals from a judgment of the district court for Douglas County in favor of Freedom Specialty 

Contracting, Inc. (Freedom), in the amount of $196,851.78. 

Freedom brought suit against Nichol Flats for foreclosure on 

a construction lien and for breach of contract. Nichol Flats 

brought a counterclaim for breach of contract and indemnification. After a bench trial, the district court found that Nichol 

Flats wrongfully terminated Freedom under the contract and 

that Freedom was entitled to foreclosure on its lien. The district 

court dismissed Freedom’s contract claim and Nichol Flats’ 

counterclaim with prejudice. For the foregoing reasons, we 

affirm as modified.

BACKGROUND

In August 2015, Nichol Flats and Freedom entered into a 

contract whereby Freedom would provide framing and drywalling services during the construction of a five-story apartment 

complex on North 16th Street in Omaha, Nebraska. Exhibit B 

of the contract provided the following baseline schedule for the 

completion of Freedom’s services:

Floor Duration Start Date Finish Date

Level 1 15 Days 11/3/2015 11/23/2015

Level 2 35 Days 11/10/2015 12/28/2015

Level 3 35 Days 12/9/2015 1/26/2016

Level 4 35 Days 1/8/2016 2/25/2016

Level 5 35 Days 2/8/2016 3/25/2016

Due to delay by other subcontractors, and the need for certain work to be completed prior to framing and drywalling, 
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the parties agreed Freedom was incapable of adhering to the 

dates provided in the baseline schedule.

At some point in August 2016, prior to completion of the 

framing and drywalling, Freedom ceased performing work 

under the contract. The parties dispute the reason Freedom’s 

work was terminated.

On October 27, 2016, Freedom filed suit for foreclosure on its 

construction lien in the amount of $262,469.04 and for breach 

of contract. On July 10, 2017, Nichol Flats filed an amended 

answer and counterclaim denying the allegations contained in 

Freedom’s complaint and alleging that Freedom breached the 

contract and owed indemnification costs to Nichol Flats. A 

bench trial took place on May 13 through 16, 2019.

At trial, Freedom called John Jantzon, its project manager, 

as a witness. Jantzon testified that the construction manager, 

Tackett Company (Tackett), communicated with him regarding 

when the drywall work could commence. Under the contract, 

Freedom was to complete drywall for four floors of apartment units, and the metal framing on the first floor commercial space.

Jantzon testified that if other “trades” or inspections are 

delayed, it sets back Freedom’s schedule because drywall work 

cannot be completed. Jantzon testified that exhibit B of the 

contract, the original baseline schedule, was the only schedule 

provided by Tackett and the only one he reviewed. No change 

order or construction change directive regarding Freedom’s 

schedule was ever provided to Jantzon.

Jantzon testified that Freedom began its work after a May 

19, 2016, lunch meeting that took place with representatives 

from Freedom, Tackett, and the Nichol Flats ownership. He 

acknowledged that some metal framing on the first floor was 

done previously in October 2015. Jantzon testified that there 

had been no discussion about amending Freedom’s schedule 

prior to the meeting.

Jantzon denied that Tackett had notified Freedom that it 

could begin its work on May 15, 2016. He testified that the fifth 

floor was not ready at that time. Jantzon denied having ever 
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agreed to a 15-day-per-floor schedule, which was referenced in 

an email from Tackett’s project manager, Trent Gumm.

Jantzon testified that errors by other contractors on the project caused Freedom to perform additional work outside the 

scope of its contract. A change order request for $14,842 to 

add soffits outside of Freedom’s scope of work was refused by 

Nichol Flats. Another change order for $4,210 related to corridor soffits was refused. Change order requests for $2,291 and 

$1,107 were approved by Nichol Flats.

On August 11, 2016, Kirt Trivedi, a co-owner of Nichol 

Flats, sent Freedom an email stating, “This email is to provide 

Freedom the required seven day notice to meet the contractual 

schedule. This must be met or otherwise we will have to exercise other options.” Jantzon testified that he had not previously 

received any notice from Nichol Flats, or Tackett, alleging that 

Freedom was behind schedule. He testified that there were 

ongoing issues with other contractors’ work that prevented 

Freedom from completing the drywall on certain floors.

On August 16, 2016, Freedom received an email from 

Trivedi with a list of tasks to complete in order to avoid 

“supplement[ation].” Supplementation, in this context, refers 

to Nichol Flats’ contractual right to outsource a portion of 

Freedom’s scope of work upon default or delay by Freedom 

in breach of the contract. The purpose of supplementation 

is to complete work that has delayed the project’s schedule. 

Jantzon testified that Trivedi’s list encompassed essentially 

the remainder of Freedom’s scope of work on the project. He 

testified that a supplementation crew arrived on August 17, 

but he denied instructing Freedom’s workers to stop working 

on the project. The supplementation crew was an independent 

drywalling company hired to work alongside Freedom to meet 

the project’s schedule.

Jantzon testified that despite supplementation, Freedom’s 

president, Randy Tufly, instructed him to keep the Freedom 

crew on the jobsite. On August 18, 2016, Jantzon received a 

telephone call from Tufly indicating that Freedom was likely 

to get “thrown off the job” that day and that Jantzon should 
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Cite as 28 Neb. App. 797

gather Freedom’s equipment. Jantzon went to the jobsite that 

afternoon and found a “sizeable crew” there in addition to 

Freedom’s workers.

Jantzon did not return to the jobsite on August 19, 2016. 

Daniel Hermida, Freedom’s jobsite foreman, told Jantzon that 

he was told if Freedom’s workers entered the jobsite, they 

would be arrested. Freedom did not perform any work on the 

Nichol Flats project after August 18.

On cross-examination, Jantzon admitted that he did not provide a written schedule to Tackett in response to Gumm’s May 

24, 2016, email requesting a “written plan from [Freedom] as 

assurance that we will be completing the floors in 15 days as 

per our original scheduled dates.” Jantzon acknowledged that 

neither Trivedi nor Deepak Gangahar, the co-owners of Nichol 

Flats, told him that Freedom was terminated on August 18, but 

Ryan Greenfield from Tackett called and told him that Freedom 

had been terminated.

Hermida testified that his duties as foreman included 

coordinating workers and ensuring the project was on schedule. Hermida testified that he did not have contact with Trivedi 

or Gangahar until August 18, 2016, Freedom’s last day on the 

Nichol Flats jobsite. He denied any ongoing issues with staffing the project or meeting deadlines, and he indicated that no 

concerns were ever raised to him by Freedom, Tackett, or the 

Nichol Flats ownership.

Hermida testified that he was approached by Trivedi on 

August 18, 2016, and was told that Freedom was being supplemented. Hermida testified that Trivedi then asked, “‘How 

fast can you get your things and your men off the job?’” 

Hermida said he ignored the question and walked away to call 

Freedom’s office and spoke with Jantzon, who told Hermida 

to continue working. Hermida denied Trivedi’s claim that 

Hermida “refused to work side by side with the supplementation team and instructed his team to remove tools and the entire 

team.” Hermida indicated that he refused to give the supplementing contractor his personal blueprints and told him to keep 

his crew from using Freedom’s equipment.
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Cite as 28 Neb. App. 797

When Hermida arrived to the jobsite on August 19, 2016, 

Trivedi told him that Freedom was no longer allowed on 

the jobsite and that he owned everything inside, including 

Freedom’s equipment. Hermida testified at length regarding the 

work Freedom had completed as of August 18, the last day it 

was on the jobsite, including the installing and finishing of the 

drywall on the third, fourth, and fifth floors.

Richard Ridpath, Freedom’s commercial operations manager, testified that Jantzon reported to him on the Nichol Flats 

project. Ridpath testified that he scheduled a meeting with 

Trivedi for August 16, 2016, which he thought was to discuss 

Freedom’s work on certain touchups. Ridpath testified that 

when he introduced himself, Trivedi screamed, “‘Get off my 

floor. Get out of my building.’” Ridpath walked through the 

units on the third and fourth floors on his way out, and he said 

he believed the drywall was ready to be primed.

Sarah Tufly, Freedom’s vice president of general operations, 

testified that she oversees human resources, initial contract 

review, and certain financial work for the company. Sarah testified that Freedom bills according to the estimated percentage 

of work completed on each project section on the applicable 

billing date. Under the contract, Freedom was required to 

submit its billing statements to Tackett by the 20th of each 

month. The billing would reflect the projected percentage of 

work completed for the entire month. Exhibit 40, an “Aging 

Detail by Job,” reflects $210,599.11 plus $53,469.25 in retainage still owed to Freedom by Nichol Flats, according to 

Freedom’s billing.

Sarah testified that invoices for $168,153.30 on July 20, 

2016, and $42,445.81 on August 19 were submitted, but they 

had not been paid by the time of trial. Sarah testified that 

Freedom was over budget on the Nichol Flats project, largely 

due to the initial delays. Exhibit 40 also reflected an estimation that Freedom had completed 89 percent of the project 

when it stopped work. She explained that the report reflected 

a higher percent billed than percent of “actual completion” 
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due to verbal change orders that had not been formalized in 

writing and incorporated into the total contract price.

Sarah testified that Freedom’s “monthly billing worksheet” was used to determine Freedom’s claimed damages of 

$262,469.04 within its construction lien. That number was 

reached by taking a total contract price of $570,294 (including unofficial change orders) and subtracting the $270,623.96 

already paid to Freedom and Freedom’s estimate that $37,201 

worth of work was left to complete under the contract at the 

date of termination.

On cross-examination, Sarah acknowledged that at times, 

Freedom would bill slightly more than its actual completion 

percentage to cover its costs.

Randy, Freedom’s president, testified that he is the only 

person at Freedom with the authority to terminate a contract 

or make the decision to walk off a job. He testified that he 

considered pulling Freedom off the Nichol Flats project due to 

delayed payments in April and May.

Randy testified that at the May 19, 2016, meeting, he 

discussed accelerating the project schedule, including both 

labor and payment, but denied agreeing to a 15-day-per-floor 

schedule. He described such a schedule as “pretty much impossible.” Randy testified that up until the date of termination, 

he believed Freedom was performing satisfactorily and timely 

under the contract.

Randy testified that despite his belief that Freedom had been 

terminated on August 18, 2016, he sent Trivedi emails on the 

evening of August 18, as well as on August 26, maintaining 

that Freedom was “ready, willing, and able to complete the 

work” on the project. Nevertheless, Trivedi did not indicate 

that Freedom would be permitted to return to the job. Randy 

testified that he worked with Jim Tufly, Freedom’s director of 

commerical operations, as well as Jantzon to approximate the 

amount of work Freedom had completed in order to determine 

an exact lien amount.

On cross-examination, Randy testified that he received an 

email from Gumm on May 20, 2016, reflecting the requested 
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Cite as 28 Neb. App. 797

“15 days/floor schedule,” but he did not respond to express his 

disagreement with that schedule. He denied ever receiving a 

change order request to reflect a 15-day-per-floor schedule.

Randy testified that the only notice that Freedom was behind 

schedule would have come in emails sent by Trivedi, but he 

denied that Freedom ever fell behind schedule. On August 18, 

2016, Freedom removed its equipment from the jobsite and Jim 

sent an email notice to Trivedi that Freedom would require a 

“newly negotiated contract” if it were to return to the site.

Randy acknowledged that Freedom overbilled $40,340 compared to the actual work completed at the time its work 

stopped, without accounting for change orders. Exhibit 133 

included information related to Freedom’s estimation of the 

value of its construction lien. Exhibit 148 reflected Freedom’s 

estimation that it had completed 96.26 percent of the contract 

work at the time its work was stopped.

At the conclusion of Randy’s testimony, Freedom rested. At 

that point, Nichol Flats moved for a directed verdict, which the 

court overruled.

Nichol Flats called Mike Tackett, the president of Tackett, 

as its first witness. Tackett served as the construction manager 

of the Nichol Flats project, managing the contracts, schedules, 

and vendors in that role. Mike testified that due to delay by 

the project’s plumber, the subcontractors on the Nichol Flats 

project were not held to the original completion dates, but were 

still held to the durations within the original contracts.

On May 5, 2016, Greenfield with Tackett emailed Freedom, 

indicating that the fifth floor of the Nichol Flats project was 

ready for installation of drywall. Mike testified that based off 

of Greenfield’s description, 90 percent of the drywall work 

could have been completed on the fifth floor at that time. 

Mike testified that the May 19 meeting was called due to 

delays in the drywall work and to discuss the expectation that 

each floor would be completed within a 3-week period, or 15 

working days. He testified that “Freedom stated that [it] would 

handle the 15 days” and that he did not believe such timeline 

would be “impossible.” Mike denied that bimonthly payments 
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were a condition that was agreed to for Freedom to meet the 

15-day schedule.

Mike testified he never received notice that Freedom was 

being delayed due to incomplete inspections or that it was 

unable to “get the project stocked.” Mike testified that a project 

schedule was continuously maintained throughout the project 

and that Greenfield and Gumm maintained and discussed the 

schedule with the subcontractors.

Mike testified that Freedom was supplemented on August 

18, 2016, but Tackett did not terminate Freedom. He testified 

that no one at Tackett had the authority to do so. He also did 

not witness anyone from the Nichol Flats ownership order 

Freedom to discontinue its work on the project. Mike testified that at the time of supplementation, Freedom had only 

completed approximately 65 percent of its work under the 

contract.

Mike testified that Tackett prepared an assessment of liquidated damages on the project, which was introduced as exhibit 

137, and reflected a 35-day contractual duration rather than 

the 15-day agreement he had previously testified was made. 

Exhibit 137 reflected an amount of $31,000 in liquidated damages assessed against Freedom.

On cross-examination, Mike testified that as construction 

manager, it was Tackett’s responsibility to schedule and coordinate the work of various contractors on the project. It was also 

Tackett’s responsibility to facilitate communication between 

contractors and the ownership and to review the contractors’ 

applications for payment and change orders.

Mike agreed that under the original schedule, Freedom was 

allotted approximately 4 weeks between floors. He further 

agreed that the contract time for Freedom’s work was to be 

measured from the date of commencement of its work. Mike 

testified that Freedom was originally scheduled to commence 

work on November 10, 2015, but work was delayed until May 

9, 2016. Mike testified that the 15-day-per-floor schedule 

reduced the time between each floor “to about two weeks.”
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Johnathon Seffron, a construction representative with 

Anant Construction (Anant), an entity owned by Trivedi and 

Gangahar, testified that he helps manage construction projects on behalf of the property owners. Seffron attended the 

May 19, 2016, meeting with representatives from Freedom, 

Tackett, and Anant. He understood the project to be behind 

schedule on that date, specifically related to Freedom’s scope 

of work. Seffron testified that Freedom indicated that it needed 

3 weeks to complete each floor on the project. He testified 

that an agreement was made that Freedom would finish the 

drywall, from start to finish, on each floor within 15 working days.

Seffron testified that as of August 16, 2016, all the necessary inspections were complete on the third, fourth, and fifth 

floors. Seffron did not recall any existing issues on August 16 

that would have interfered with Freedom’s ability to complete 

its work throughout the duration of the project.

Mike Heidesch, an independent construction representative 

for Anant, testified that he was on the Nichol Flats jobsite 

every day during the project. Heidesch prepared exhibit 27, a 

daily field report, which reflects the number of Freedom workers (and its subcontractors) he counted on August 17, 2016. 

Exhibit 27 also reflects Heidesch’s observations that Freedom 

was still in the process of hanging drywall on the third, fourth, 

and fifth floors on that date.

Exhibit 128 was introduced and includes photographs that 

Heidesch took on August 18, 2016, documenting the state of 

work Freedom completed on the project. Heidesch testified to 

various work that was incomplete as shown in the pictures. 

Heidesch testified that work left to be completed by Freedom 

included “drywall that needed to be hung, hollow metal 

frames, drywall finish and ceiling grid.” Heidesch estimated 

that Freedom had completed 60 percent of its scope of work 

by August 18, when it stopped working on the project.

Trivedi, a co-owner of both Anant and Nichol Flats, testified that Nichol Flats is a mixed-use facility with 68 apartment units and a floor for commercial use. Trivedi acted as the 
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“owner’s representative” under the terms of the contract with 

Freedom. Trivedi testified that a 15-day-per-floor schedule was 

agreed upon at the May 19, 2016, meeting. In his experience, 

this timeline was not unreasonable for these types of projects 

with proper staffing.

Trivedi testified that Nichol Flats consistently had issues 

getting lender approval of payment applications for the drywall work. These issues stemmed from the fact that the bank’s 

inspector believed the drywall work was being overbilled.

Exhibit 108 is a change order request for Freedom to drywall the kitchen soffits that was denied by Nichol Flats. Trivedi 

testified that Freedom did not frame the soffits and only drywalled some, which he believed was part of their original 

scope of work. Under the contract, all change orders were to be 

signed by the ownership to be approved.

Exhibit 112 is a change order request for Freedom to frame 

corridor soffits that was denied by Nichol Flats. Trivedi testified that the change order was denied because that work was 

included under Freedom’s contractual obligation.

Exhibits 113 and 114 are change order requests that were 

signed and approved by Nichol Flats and included in Nichol 

Flats’ damages calculation.

Trivedi testified that on August 11, 2016, he emailed 

Freedom representatives to give them notice to get back on 

schedule within 7 days or Nichol Flats would “exercise other 

options” and supplement Freedom’s work. Trivedi testified 

that other trades on the project were being held up because of 

Freedom’s delays. Trivedi denied ever ordering Freedom off 

the project.

Trivedi testified that when Freedom was supplemented on 

August 18, 2016, Hermida made a telephone call and returned 

and told Trivedi that “we don’t work with supplementing 

crews.” He testified that Freedom workers then began to pack 

their equipment and load up their trucks. Trivedi denied firing 

Freedom or telling its crew to pack up their equipment. He 

testified that as of August 18, Freedom was “55 to 60 percent” 
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complete with its work. On August 25, without Freedom having returned to the jobsite, Trivedi emailed Freedom to give a 

7-day notice that he was terminating the contract.

Trivedi testified that the cost to complete Freedom’s scope 

of work was $318,370.49. Prior to the termination of the contract, Freedom had been paid $270,623.96 for its completed 

work. The contract, including the two signed change orders, 

was approximately $551,000, leaving a balance of $262,000. 

Trivedi testified that Nichol Flats sought to recover the difference between its costs incurred to complete Freedom’s work 

and the remaining contract balance it would have paid Freedom. 

Trivedi testified that Nichol Flats incurred additional damages beyond the cost to complete Freedom’s work, including 

accrued interest, loss of rent, and a higher interest rate on its 

funding due to refinancing. He testified that the lien Freedom 

filed reflects 96-percent completion by Freedom, which was 

“[n]ot even close” to what was actually completed.

On redirect examination, Trivedi testified that Freedom 

never proposed, nor requested, a new contract to work under 

if it were to return to the jobsite. Trivedi disputed the contention that Freedom completed 98 percent of material installation 

and 90 percent of total labor on the date of termination. He 

also disputed that Gangahar ordered Freedom to discontinue 

work. Trivedi testified that supplementation is difficult, costly, 

and used as a “last resort” and that he would not have supplemented Freedom had it actually been 90 to 98 percent complete 

as represented by Freedom.

Gangahar testified that he and Trivedi are business partners 

and have worked on a variety of projects together. He testified 

that after the initial delay, he met with Tackett in May 2016, 

reviewed the construction schedule, and determined that the 

drywall was the next trade to be performed. He indicated that 

despite the site being ready for drywall, “hardly anything was 

happening.” Gangahar testified that at the May 19 meeting, he 

requested that Freedom explain the delay in work and provide 

a schedule for when its work would be complete. He testified 
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that Randy stated that Freedom needed 3 weeks per floor to do 

the drywall work.

Gangahar testified that he was present at the Nichol Flats 

site when Trivedi called a meeting and informed the crews 

working on the project that Freedom was being supplemented. 

Gangahar denied that he or Trivedi ever told Hermida that 

Freedom should discontinue its work on the project. Gangahar 

testified that the decision to supplement was considered over 

the course of days or weeks and was eventually made because 

Freedom was “[w]ay behind” schedule.

Gangahar opined that Freedom was near 60 or 65 percent 

complete with its scope of work on the day it was supplemented. Gangahar testified that Nichol Flats lost “hundreds of 

thousands of dollars” due to its inability to open and lease to 

student tenants in the fall.

On cross-examination, Gangahar testified that Freedom was 

notified on May 5, 2016, that the fifth floor at Nichol Flats was 

ready for drywall. He testified that Tackett was in continual 

communication regarding the status of the project and when 

Freedom would be able to begin work.

On redirect examination, Gangahar testified that he did 

not suggest allowing Freedom to resume work on the project 

because it would have required negotiating a new contract, he 

and Trivedi had already experienced issues with Freedom, and 

it would further delay the project.

After the conclusion of Gangahar’s testimony, Nichol Flats 

rested. Nichol Flats renewed its motion for directed verdict, 

which the district court overruled. The district court then took 

the matter under advisement.

On June 20, 2019, the district court entered an order finding that the original contract durations governed Freedom’s 

schedule on the project and that Freedom had complied with 

the contract. The district court also found that Nichol Flats 

wrongfully terminated Freedom in breach of the contract 

and that Freedom was entitled to $196,851.78 in damages—

an amount reflecting its finding that Freedom completed 75 

percent of the drywall work upon termination, as well as 
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75 percent of Freedom’s construction lien. The district court 

dismissed Freedom’s breach of contract action and Nichol 

Flats’ counterclaim for breach of contract and indemnification. 

This appeal followed.

ASSIGNMENTS OF ERROR

Nichol Flats assigns that the district court erred in (1) its 

determination that Freedom complied with the contract and 

was thus entitled to foreclose its construction lien, (2) its 

determination that Nichol Flats breached the contract, (3) its 

dismissal of Nichol Flats’ breach of contract claim, and, alternatively, (4) its calculation of the construction lien amount.

STANDARD OF REVIEW

[1,2] An action to foreclose a construction lien is one 

grounded in equity. Lange Indus. v. Hallam Grain Co., 244 

Neb. 465, 507 N.W.2d 465 (1993). In an appeal of an equity 

action, an appellate court tries factual questions de novo on the 

record and reaches a conclusion independent of the findings 

of the trial court, provided, where credible evidence is in conflict on a material issue of fact, the appellate court considers 

and may give weight to the fact that the trial judge heard and 

observed the witnesses and accepted one version of the facts 

rather than another. Id.

[3,4] A suit for damages arising from breach of a contract 

presents an action at law. Bloedorn Lumber Co. v. Nielson, 

300 Neb. 722, 915 N.W.2d 786 (2018). 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. Id.

ANALYSIS

Freedom Complied With Contract

Nichol Flats first argues that the district court erred in its 

determination that Freedom complied with the contract and 

was entitled to foreclose its construction lien. We agree with 

the district court’s finding that Freedom did not breach its 
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obligations under the contract. The fundamental issue in this 

case is whether Freedom complied with the contract schedule 

for the completion of its work. Although both parties agree 

that the original contract dates were not adhered to, at no fault 

of Freedom, a central issue at trial was whether the written 

35-day-per-floor schedule or the alleged oral 15-day-per-floor 

schedule controlled Freedom’s obligations.

[5] First, we agree with the district court that the contract 

between Freedom and Nichol Flats required any modifications 

to be reduced to writing. Article I of the contract provided, 

in part: “The Contract may be amended or modified only 

by a written Modification signed by the Owner. No verbal 

amendments, waivers, changes, or other modifications of any 

kind will be enforceable.” Contract clauses requiring that any 

modifications to the contract be made in writing are valid 

and enforceable in Nebraska. See, e.g., Lueder Constr. Co. v. 

Lincoln Electric Sys., 228 Neb. 707, 424 N.W.2d 126 (1988) 

(enforcing clause requiring written change order to amend contract time). Therefore, it is clear to us that the 35-day-per-floor 

schedule, as contemplated by the original contract, controlled 

Freedom’s contract schedule obligations.

Nichol Flats directs us to Freedom’s “Location Time Card” 

records in arguing that the district court erred in finding that 

Freedom “was unable to commence its work until on or about 

May 20, 2016.” Nichol Flats argues that the contract plainly 

states that the “Contract Time shall be measured from the date 

of commencement,” and according to Freedom’s own records, 

this date was prior to May 20, 2016. Article 3, § 3.1, of the 

contract provides:

The date of commencement of the Work shall be the date 

of this Agreement unless a different date is stated below 

or provision is made for the date to be fixed in a notice 

to proceed issued by the Owner. (Insert the date of commencement, if it differs from the date of this Agreement or, 

if applicable, state that the date will be fixed in a notice 

to proceed.)

(Emphasis in original.)
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As previously mentioned, all parties agree that the dates of 

exhibit B were not followed and that the initial delay was no 

fault of Freedom. The record before us reveals that no written amended schedule was ever agreed to between the parties, 

nor was one provided by the construction manager, Tackett. 

Therefore, it was incumbent upon the district court to determine the new “date of commencement” that Freedom’s contract time was to be measured from. Although we acknowledge 

that this is an issue that we determine de novo on the record, 

our standard of review further provides that “where credible 

evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the fact that the 

trial judge heard and observed the witnesses and accepted 

one version of the facts rather than another.” Lange Indus. v. 

Hallam Grain Co., 244 Neb. 465, 467-68, 507 N.W.2d 465, 

469 (1993).

In this case, there was extensive testimony and evidence 

introduced at trial disputing the date of commencement. 

Although Nichol Flats argues that Freedom’s contract durations 

should be measured from the date its workers first stepped foot 

on the jobsite, we disagree. Section 3.1 of the contract provides that either (1) the date of the agreement; (2) an inserted 

date (i.e., exhibit B); or (3) a date fixed in a notice to proceed, 

determines the date of commencement. After the schedule in 

exhibit B became infeasible, the parties did not agree to a new 

written schedule as required by the contract. Article I provides: 

“The Scope of the Work, Contract Sum, Contract Time, and 

other provisions of this Agreement are not subject to informal 

modification, whether by email, text message, verbal, etc. 

Only a properly executed Change Order, Construction Change 

Directive, and/or Modifications shall be recognized as binding 

upon the Parties.”

At trial, representatives from Tackett, as well as Gangahar, 

the co-owner of Nichol Flats, testified that Freedom received 

“notice” on May 5, 2016, that it could commence work. 

Jantzon testified that Freedom was unable to commence work 

as of May 15 due to delay by other contractors and incomplete 
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inspections. Representatives from both parties testified that a 

meeting was held on May 19 between Nichol Flats, Freedom, 

and Tackett to “discuss [the] project schedule for drywall and 

the job in general.” Based on the record before us, and the 

appropriate weight given to the fact that the district court heard 

and observed the witnesses, we agree that Freedom’s “date of 

commencement” was on or about May 20.

Based on the May 20, 2016, date of commencement, we 

further agree with the district court that Freedom was in compliance with the contract terms, namely its contract schedule 

obligations, and was not in breach at the time it was terminated 

on August 18. Applying the original contract durations (excluding weekends and holidays), the “top floor down” approach 

taken by Freedom, and the May 20 date of commencement, 

Freedom’s schedule would be as follows:

Floor Duration Start Date Finish Date

Level 5 35 Days 5/20/2016 7/12/2016

Level 4 35 Days 6/20/2016 8/9/2016

Level 3 35 Days 7/19/2016 9/7/2016

Level 2 35 Days 8/16/2016 10/5/2016

Level 1 15 Days 8/23/2016 9/14/2016

Nichol Flats specifically takes issue with the 4-week duration allocated between floors, arguing that it “does not make 

any sense” and that “Freedom did not actually start the floors 

four weeks apart.” Brief for appellant at 15. Although Nichol 

Flats argues that applying the 4-week gap between floors is 

contrary to the contract, it is precisely the contract where 

these durations come from. Exhibit B of the original contract 

provides 35 working days per floor and 4 weeks (20 working days) between the start dates of each floor. Because no 

amended written schedule was ever agreed to, the original contract durations controlled Freedom’s obligations.

Based on the new date of commencement, and the appropriate contract durations, Freedom was not in breach on August 

18, 2016, when it was terminated. Section 2.4 of the general 

conditions of the contract provides in part:
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Cite as 28 Neb. App. 797

If [Freedom] defaults or neglects to carry out the Work 

in accordance with the Contract Documents and fails 

after receipt of written notice from the Owner to cure 

such default or neglect with diligence and promptness, 

the Owner may, without prejudice to other remedies the 

Owner may have, correct such deficiencies.

No notice of default was provided to Freedom prior to 

August 11, 2016. As of August 11, Freedom was required 

to have completed work only on the fourth and fifth floors 

per the contract durations. In his email notice, Trivedi states 

that work on the second and third floors was incomplete and 

merely asked whether the fourth floor was complete. Work on 

the second and third floors was not yet due to be complete, 

and according to Tackett’s calculation of liquidated damages, 

Freedom was completed with the fifth floor by July 20 and 

the fourth floor by August 1. Therefore, Freedom was not in 

breach of the contract schedule on August 18 when it was terminated from the Nichol Flats project.

Nichol Flats also argues that Freedom breached the contract 

by refusing to cooperate with the supplementing contractor. 

Nichol Flats directs us to § 6.1 of the contract in support of its 

argument, which provides:

§ 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the 

Owner’s own forces, which include persons or entities under separate contracts not administered by the 

Construction Manager, and to award other contracts in 

connection with other portions of the Project or other 

construction or operations on the site.

. . . .

§ 6.1.2 When the Owner performs construction or 

operations with the Owner’s own forces including persons or entities under separate contracts not administered 

by the Construction Manager, the Owner shall provide 

for coordination of such forces with the Work of the 

Contractor, who shall cooperate with them.
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Cite as 28 Neb. App. 797

Despite Nichol Flats’ characterization of § 6.1 as permitting it to engage its “own forces” to complete any scope of 

work on the project, we agree with Freedom that such an 

interpretation “would render the contractual procedure for 

supplementation, requiring notice of breach and seven days to 

cure, moot.” Brief for appellee at 24-25. This requirement is 

reflected in § 2.4 of the general conditions of the contract, as 

quoted above. Although Trivedi sent an email on August 11, 

2016, purporting to provide notice to Freedom that if it did 

not “meet the contractual schedule” within 7 days, it would be 

supplemented, as discussed above, Freedom was not in breach 

of the contract schedule on August 11. Therefore, with no 

breach to cure, Nichol Flats’ supplementation of Freedom on 

August 18 was improper.

[6] Nichol Flats also argues that the district court’s finding that Freedom was 75 percent complete with its scope 

of work on August 18, 2016, when its work on the project 

stopped, demonstrates that Freedom was in breach and did 

not substantially perform. The majority of Nichol Flats’ argument relies on its incorrect interpretation of the controlling 

contract schedule. For reasons previously discussed, we reject 

this argument. Nichol Flats also argues that the 75-percentcomplete finding itself indicates Freedom did not substantially 

perform. “[S]ubstantial performance is shown when all the 

essential elements necessary for the full accomplishment of 

the purposes of the contract have been performed with such an 

approximation to complete performance that the owner obtains 

substantially what is called for by the contract.” Lange Indus. 

v. Hallam Grain Co., 244 Neb. 465, 474, 507 N.W.2d 465, 

473 (1993).

However, Nichol Flats fails to consider that substantial 

performance should be measured against the contract durations of each floor, not against the contract as a whole, which 

the 75-percent-complete finding of the district court measures. Because we have already determined that Freedom was 

not in breach of the contract durations and, therefore, had 

substantially performed work on the fourth and fifth floors 
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by August 18, 2016, as the contract required, this argument 

also fails.

Nichol Flats Breached Contract

Nichol Flats next argues that the district court erred in its 

determination that Nichol Flats breached the contract and 

that Freedom was entitled to recover under the construction 

lien. Nichol Flats argues that the decision “ignores relevant 

terms of the Contract, whether the termination is considered 

one for cause or for convenience.” Brief for appellant at 21. 

We disagree.

Section 14.2 of the contract permitted Nichol Flats to terminate Freedom “for [c]ause.” Section 14.2.1 allows termination 

under this provision if Freedom, as relevant here, was “guilty 

of material breach of a provision of the Contract Documents.” 

We have already determined that Freedom did not commit a 

material breach of the contract as of August 18, 2016, when its 

work was terminated. Therefore, Nichol Flats was not entitled 

to terminate Freedom for cause under § 14.2.

Nichol Flats also argues that even if it was not permitted 

to terminate Freedom for cause, it was permitted to terminate 

the contract for “convenience” under § 14.4.1, which provides: 

“The Owner may, at any time, terminate the Contract for the 

Owner’s convenience and without cause.” Although Nichol 

Flats was permitted to terminate Freedom for “convenience” 

at any point under the contract, the contract nevertheless provides that written notice should be given of the termination 

and that under § 14.4.3, “the Contractor shall be entitled to 

receive payment for Work executed, including reasonable overhead and profit on the Work executed.” However, as Freedom 

argues in its brief, Trivedi made clear his intention was to 

terminate Freedom for cause. In his August 18, 2016, email, 

Trivedi wrote:

Nichol Flats LLC will complete the scope with the supplementation team and will hold Freedom liable for any 

additional costs that may be incurred within their contractual scope. Since Freedom has refused to continue 
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Cite as 28 Neb. App. 797

work, no employee, associate, and/or affiliate of Freedom 

may not [sic] come on to property without my personal 

approval.

This is precisely the type of remedy provided for under 

§ 14.2.2, allowing for termination for cause. There was conflicting testimony as to whether Freedom “refused to work” or 

whether Trivedi asked Freedom’s jobsite foreman, Hermida, 

“‘How fast can you get your things and your men off the 

job?’” and later refused to allow Freedom back on the jobsite. 

However, the district court found credible the evidence that 

Nichol Flats terminated Freedom. Again, we “may give weight 

to the fact that the trial judge heard and observed the witnesses 

and accepted one version of the facts rather than another.” 

Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 467-68, 507 

N.W.2d 465, 469 (1993). Because Freedom was not in breach 

of the contract on August 18, 2016, when it was terminated by 

Nichol Flats, we agree with the district court that Nichol Flats 

committed a breach of the contract.

Dismissal of Nichol Flats’ Breach 

of Contract Claim

Nichol Flats next argues that the district court erred in its 

dismissal of its breach of contract claim. However, because this 

argument is wholly dependent on a finding that Freedom was 

in breach of the contract, this argument fails. We have already 

determined that Freedom was in compliance with the contract 

schedule and did not breach the contract. Therefore, it was not 

in error for the district court to dismiss this claim.

Calculation of Construction Lien

Nichol Flats’ final assignment of error, presented solely as 

an alternative to its previous arguments, is that the district 

court erred in its calculation of the construction lien amount. 

We agree. Although we affirm the finding of the district court 

that Freedom completed 75 percent of the adjusted contract, 

including written change orders, we modify its calculation of 

the amount of Freedom’s construction lien.
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Cite as 28 Neb. App. 797

[7] Under Neb. Rev. Stat. § 52-136(1)(a) (Reissue 2010), 

the appropriate calculation of a construction lien is “for the 

unpaid part of [the contractor’s] contract price.” The Nebraska 

Supreme Court has reiterated that § 52-136(1)(a) “speak[s] 

clearly as to the right to a construction lien only with respect 

to services performed or materials furnished, not with respect 

to services intended to be performed or materials intended 

to be furnished.” Tilt-Up Concrete v. Star City/Federal, 255 

Neb. 138, 153, 582 N.W.2d 604, 613 (1998). The district 

court made a factual finding, which we affirm, that Freedom 

completed 75 percent of its scope of work under the adjusted 

contract prior to being terminated. Therefore, the calculation of 

Freedom’s construction lien should have reflected 75 percent 

of the adjusted contract price (minus amounts already paid), 

rather than 75 percent of Freedom’s claimed construction lien 

amount. Based on this, we recalculate the amount of Freedom’s 

lien as follows:

First, we determine the total value of the adjusted contract 

price by adding the original contract value with any approved 

change orders:

Original Contract Price: $547,844

Change Order No. 1: $2,291 (Approved)

Change Order No. 2: $1,107 (Approved)

Change Order No. 3: Not Approved

Change Order No. 4: Not Approved

TOTAL ADJUSTED 

CONTRACT PRICE: $551,242

Based on the district court’s factual finding that Freedom 

completed 75 percent of its scope of work as of August 

18, 2016, when it ceased work on the Nichol Flats project, 

which we affirm, we next multiply the adjusted contract price 

by 75 percent: Pro Rata Contract Amount: $551,242 × 75% 

= $413,431.50. Finally, to determine the amount owed to 

Freedom under its construction lien, we must subtract any 

payments previously made to Freedom by Nichol Flats, and 

the evidence shows this amount to be $270,623.96: Amount 
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Cite as 28 Neb. App. 797

Owed: $413,431.50 - $270,623.96 = $142,807.54. Based on 

our recalculation of the value of Freedom’s construction lien, 

we modify the district court’s judgment in favor of Freedom 

from $196,851.78 to an amount of $142,807.54. The district 

court’s order is otherwise affirmed, as modified.

CONCLUSION

Based on the foregoing reasons, we affirm the district court’s 

judgment to foreclose Freedom’s construction lien. However, 

we modify the calculation of the lien amount to $142,807.54. 

We also affirm the district court’s dismissal of Freedom’s 

breach of contract claim and Nichol Flats’ counterclaims for 

breach of contract and indemnification.

Affirmed as modified.