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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

AURORA TECHNOLOGY v. LABEDZ

Cite as 30 Neb. App. 33

Aurora Technology, Inc., appellant, 

v. Frank Labedz and Sherri 

Labedz, appellees.

___ N.W.2d ___

Filed June 29, 2021. No. A-20-846.

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 the facts and 

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

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted, and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Limitations of Actions. Which statute of limitations applies is a question of law.

4. Judgments: Appeal and Error. An appellate court reaches a conclusion regarding questions of law independently of the trial court’s 

conclusion.

5. Contracts: Proof: Limitations of Actions. A contract is unwritten if 

it cannot be wholly proved by a writing or writings. If the contract is 

partly oral and partly written or if a written agreement is so indefinite as 

to necessitate a resort to parol testimony to make it complete, the statute 

of limitations concerning contracts not in writing would be applicable 

just as though the contract had rested entirely in parol.

6. Contracts. Parol acceptance of an offer in writing does not give rise 

to an agreement or contract in writing within the purview of Neb. Rev. 

Stat. § 25-205 (Reissue 2016).

7. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

Nebraska Supreme Court Online Library

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

07/13/2021 08:08 AM CDT
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AURORA TECHNOLOGY v. LABEDZ

Cite as 30 Neb. App. 33

Appeal from the District Court for Douglas County: Timothy 

P. Burns, Judge. Affirmed.

Kathryn J. Derr, of Berkshire & Burmeister, for appellant.

Craig Martin and Daniel J. Hassing, of Lamson, Dugan & 

Murray, L.L.P., for appellees.

Riedmann, Arterburn, and Welch, Judges.

Riedmann, Judge.

INTRODUCTION

Aurora Technology, Inc. (Aurora), appeals the order of the 

district court for Douglas County granting summary judgment 

in favor of Frank Labedz and Sherri Labedz (collectively 

Labedz) on the basis that the 4-year statute of limitations for 

oral contracts barred Aurora’s breach of contract and unjust 

enrichment claims. We find that the district court did not err in 

its decision and therefore affirm.

BACKGROUND

Aurora is a Nebraska corporation formed in 2004. In late 

2011, Labedz began communicating with Aurora for the purpose of having Aurora install an “intelligent home system” in 

Labedz’ condominium. On March 19, 2012, Aurora and Labedz 

signed a contract. Under the heading “Scope of Contract,” the 

document states that Aurora will “provide the design, equipment, and labor required to complete [the] project to the 

specifications & descriptions agreed upon in the documents, 

attached hereto and incorporated herein.” The contract does not 

contain any further details outlining the work Aurora agreed to 

complete for Labedz nor does it include any costs associated 

with the work. There were no documents attached to the contract or specifically incorporated into it.

The contract also includes a section regarding change 

orders, describing that a change order is “work that is added 
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AURORA TECHNOLOGY v. LABEDZ

Cite as 30 Neb. App. 33

to or deleted from the original scope of work of a contract, 

which alters the original contract amount or completion date.” 

The contract also provides that all change orders will be “written or electronic” and that verbal change requests will not be 

acted upon without written or electronic documentation. There 

were no change orders completed on this project.

Christopher Tyler is the president of Aurora. At Tyler’s 

deposition, he described the written contract as the “beginning contract, the initial contract” and testified that it partially 

controlled the relationship between Aurora and Labedz but that 

there were also “a lot of oral discussions” between the parties 

throughout the duration of the project. Tyler explained that his 

purpose in drafting the contract was to give Aurora and Labedz 

“a starting point of what may be done.”

According to Tyler, at the time the parties signed the 

contract, he also provided Labedz with a proposal for the 

equipment and labor involved for lighting work and for window shade work. Neither of these proposals, which are both 

dated March 19, 2012, is signed by either party. The total 

projected cost for the work contained in these two proposals 

was $29,972.71. The record also includes five proposals dated 

June 11, 2012; one proposal dated July 27, 2012; and two 

proposals dated October 15, 2014, that Aurora created for various aspects of the Labedz project. Tyler testified that Labedz 

approved some of these proposals, modified some of them, 

and rejected some of them. Tyler was unable to recall if he 

ever presented one of the June proposals to Labedz. At Frank’s 

deposition, he was asked whether, over time, he received certain written proposals from Aurora. He recalled “getting a set 

of documents in conjunction with the contract” that detailed 

certain work.

Tyler explained that, generally speaking, he would usually communicate with his clients via verbal discussions and 

receive verbal approval for certain work. With respect to 

Labedz, Tyler acknowledged that a lot of the work he did for 
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Cite as 30 Neb. App. 33

this project was done pursuant to an oral acceptance from 

Labedz. He described numerous parts of the project that were 

done pursuant to oral agreements between Aurora and Labedz, 

including, for example, installation of a curved television, setting up cable products and services, troubleshooting certain 

issues, unloading a mirror, “fish[ing] wires” for an office television, and moving and installing “therm/HVAC.”

Throughout the project, Aurora periodically requested payments, and Labedz generally made payments as requested. In 

total, Labedz paid more than $200,000 to Aurora. Ultimately, 

Aurora submitted invoices to Labedz indicating that there was 

a total remaining unpaid balance of $125,232.10.

Labedz declined to pay the remaining balance, and the 

parties agree that their relationship terminated by February 

13, 2015. On May 1, 2019, Aurora filed a complaint in the 

district court against Labedz alleging breach of contract and 

unjust enrichment. Labedz filed an answer and asserted, as an 

affirmative defense, that Aurora’s claims were barred by the 

statute of limitations. Labedz thereafter filed a motion for summary judgment.

After holding a hearing on the motion, the district court 

entered a written order. The court recognized that the parties 

agree that Aurora’s claims accrued no later than February 13, 

2015, and that the action was commenced on May 1, 2019, 

which is more than 4 years but less than 5 years after the parties’ relationship ended; therefore, the question of whether 

Aurora’s claims were barred by the statute of limitations 

depends upon which statute applies. Neb. Rev. Stat. § 25-206 

(Reissue 2016) provides that an action upon a contract, not in 

writing, express or implied, can only be brought within 4 years. 

However, a 5-year statute of limitations applies for contracts in 

writing. See Neb. Rev. Stat. § 25-205 (Reissue 2016). The district court, therefore, observed that if the parties’ relationship 

was governed by a contract that was not in writing, the 4-year 

statute of limitations applies and Aurora is precluded from 

bringing its breach of contract claim.
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AURORA TECHNOLOGY v. LABEDZ

Cite as 30 Neb. App. 33

On this question, the district court noted that although the 

written contract indicated that documents were attached and 

incorporated, no documents or other materials were attached 

to the contract. In addition, the contract did not include any 

provision explaining the nature and scope of the work that 

Labedz would be required to pay for, nor how much the 

various services would cost. Thus, in order to determine the 

amount Labedz owed under the contract, the court would be 

required to look to extrinsic evidence, including oral agreements. The court recognized that Labedz admitted that he 

received additional documents associated with the contract, but 

found that even assuming those documents were part of the 

contract, some of the allegedly unpaid balances accrued pursuant to verbal agreements.

Relying on Nebraska case law, the district court determined 

that the agreement, which was partly oral and partly written, was properly considered to be an oral agreement; thus, 

Aurora’s breach of contract claim was subject to the 4-year 

statute of limitations. As such, the claim was time barred. The 

court also found that the statute of limitations for Aurora’s 

unjust enrichment claim was 4 years and that therefore, it was 

untimely as well. Accordingly, the district court granted the 

motion for summary judgment and dismissed Aurora’s claims. 

Aurora appeals.

ASSIGNMENTS OF ERROR

Aurora assigns that the district court erred in (1) finding on 

summary judgment that the 4-year statute of limitations under 

§ 25-206 applies to bar this breach of contract action and (2) 

finding that no genuine issues of material fact exist to prevent 

determination of the applicable statute of limitations at the 

summary judgment stage.

STANDARD OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 
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Cite as 30 Neb. App. 33

show that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from the 

facts and that the moving party is entitled to judgment as a 

matter of law. Churchill v. Columbus Comm. Hosp., 285 Neb. 

759, 830 N.W.2d 53 (2013). In reviewing a summary judgment, an appellate court views the evidence in the light most 

favorable to the party against whom the judgment was granted, 

and gives that party the benefit of all reasonable inferences 

deducible from the evidence. Id.

[3,4] Which statute of limitations applies is a question of 

law. Id. We reach a conclusion regarding questions of law independently of the trial court’s conclusion. Id.

ANALYSIS

Statute of Limitations.

Aurora asserts that the district court erred in applying the 

4-year statute of limitations for oral contracts found in § 25-206 

rather than the 5-year statute of limitations for contracts in 

writing found in § 25-205. Aurora claims, stated differently, 

that the court erred in classifying the contract as an oral contract as opposed to a written contract. We disagree.

[5] A contract is unwritten if it cannot be wholly proved 

by a writing or writings. Grant v. Williams, 158 Neb. 107, 62 

N.W.2d 532 (1954). If there is anything that must be supplied 

by parol evidence to make it a binding obligation an action 

upon it is not one on a written instrument. Id. If the contract 

is partly oral and partly written or if a written agreement is so 

indefinite as to necessitate a resort to parol testimony to make 

it complete, the statute of limitations concerning contracts not 

in writing would be applicable just as though the contract had 

rested entirely in parol. Id.

The Nebraska Supreme Court in Grant v. Williams, supra, 

found that the action before it was not based upon an agreement in writing because the writing did not contain a promise 

to pay any amount and stated no fact from which the law 
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Cite as 30 Neb. App. 33

implied an obligation to pay any amount. The action was 

therefore subject to the 4-year statute of limitations for oral 

contracts.

The Supreme Court addressed a similar question in Beekman 

v. Cornhusker Farms, 214 Neb. 418, 333 N.W.2d 918 (1983). 

There, the plaintiff and defendant entered into a written agreement for farming work, which set forth a description of the 

work and standard charges for it. The parties made subsequent modifications to the agreement by parol agreements. 

On appeal, the Supreme Court framed the issue as whether 

parol modification of a written agreement results in the entire 

agreement being treated as an oral agreement for purposes of 

the statute of limitations. Relying in part on Grant v. Williams, 

supra, the Supreme Court found that the record reflected that 

the farming agreement was either modified by subsequent 

parol agreements which could only be proved by parol evidence or that the plaintiff’s claims were based upon separate 

and independent parol agreements. Thus, in either event, it 

held that because the contract was partly oral and partly written and the terms thereof so indefinite as to necessitate parol 

testimony, the statute of limitations pertaining to parol agreements was applicable.

Likewise, in the present case, although there is a written 

contract between the parties, parol evidence is necessary in 

order to establish the terms of the agreement. Pursuant to the 

contract, Aurora was to provide the design, equipment, and 

labor required to complete the project, but parol evidence is 

necessary to determine the scope of the work to be completed 

and the cost of such work. Because Aurora’s claim is based 

on Labedz’ failure to pay certain costs associated with the 

project, we must turn to parol evidence to establish whether 

Labedz agreed to that particular work at that particular cost 

in order to determine the validity of Aurora’s claim. In other 

words, the writing itself does not contain a contract or promise to do the thing for the nonperformance of which the action 
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Cite as 30 Neb. App. 33

is brought, and the terms of the agreement in writing are so 

indefinite as to necessitate parol evidence. Because there are 

parts of the agreement that must be supplied by parol evidence to make it a binding obligation, an action upon it is not 

one on a written instrument. See Grant v. Williams, 158 Neb. 

107, 62 N.W.2d 532 (1954). Therefore, the statute of limitations for oral contracts provided by § 25-206 applies to bar 

Aurora’s claim.

Aurora asserts that the contract should be considered to be 

in writing because the written contract incorporated attachments, including the proposals and invoices. Aurora argues 

that a detailed description of the goods, services, and costs for 

each project are set forth in the invoices it sent to Labedz and 

that as a party to the contract, Labedz was aware of the goods 

and services to be provided by Aurora and no further detailed 

description was necessary.

The written contract states only that Aurora would “provide 

the design, equipment, and labor required to complete [the] 

project to the specifications & descriptions agreed upon in the 

documents, attached hereto and incorporated herein.” As the 

district court found, there were no documents attached to or 

specifically incorporated into the contract. Aurora highlights, 

and we agree, that generally, in the absence of anything to 

indicate a contrary intention, instruments executed at the same 

time, by the same parties, for the same purpose, and in the 

course of the same transaction, are legally one instrument and 

will be construed together as if they were as much one in form 

as they are in substance. See Peterson v. Hynes, 220 Neb. 573, 

371 N.W.2d 664 (1985).

Viewing the evidence in the light most favorable to Aurora, 

we determine that the March 19, 2012, proposals could be 

considered to be incorporated into the written contract because 

they were executed at the same time, by the same parties, 

and in the course of the same transaction and because Tyler 

asserted that he provided them to Labedz along with the 
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Cite as 30 Neb. App. 33

contract. Therefore, the extent of the parties’ agreement in 

writing was for the work detailed in the two March proposals, 

which totaled $29,972.71.

[6] However, the work that Aurora performed for Labedz 

and for which it sought payment went far beyond that which 

is described in those two proposals. The remaining proposals 

were not executed at the same time as the written contract nor 

did Labedz agree to all of the work set forth therein. Tyler testified that with regard to the later proposals, there were some 

that Labedz approved, some that were modified, and some that 

were rejected. In fact, Tyler was unable to recall if he ever presented one of the June proposals to Labedz. At best, we could 

consider the remaining proposals to be written offers, and the 

acceptance of any of the offers was parol. Parol acceptance of 

an offer in writing does not give rise to an agreement or contract in writing within the purview of a statute of limitations 

applicable to written contracts. See Kingman v. Davis, 63 Neb. 

578, 88 N.W. 777 (1902). We therefore do not consider the 

remaining proposals to be incorporated into the written contract or to evidence an agreement in writing.

Furthermore, we do not agree that the invoices form part of 

the written contract, because they were created after the work 

was completed and do not establish an agreement between 

the parties. Indeed, the fact that Labedz objected to certain 

invoices and refused to pay them is what led Aurora to commence the present action. Accordingly, the agreement in writing is limited, at best, to the costs detailed in the March 2012 

proposals, and any agreement beyond that necessitates parol 

evidence. The contract therefore is partly oral and partly written. As such, it is properly considered to be an oral contract 

subject to the 4-year statute of limitations.

Although Aurora also sought recovery under a theory of 

unjust enrichment and the district court found the claim was 

time barred, Aurora has not appealed this issue. We therefore 

do not address the unjust enrichment claim.
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Cite as 30 Neb. App. 33

Genuine Issues of Fact.

Aurora also argues that there were genuine issues of material fact present that preclude determination of the applicable statute of limitations at the summary judgment stage. 

It specifically alleges that questions of fact exist as to (1) 

whether the parties intended to include in the contract matters 

expressed in the proposals and emails, (2) whether the writings were intended as the final agreement between the parties, 

(3) whether other separate oral agreements between the parties exist and whether those oral agreements were intended 

as separate contracts or modifications to the original written 

agreement, and (4) whether the emails exchanged between the 

parties discussing their oral conversations were sufficient to 

create written modifications to the contract and/or written confirmation of oral agreements to provide additional or different 

goods and services.

[7] To the extent any of these factual issues exist, we disagree that they are material such that they preclude entry of 

summary judgment in favor of Labedz. In the summary judgment context, a fact is material only if it would affect the 

outcome of the case. Pitts v. Genie Indus., 302 Neb. 88, 921 

N.W.2d 597 (2019). The question here is whether the agreement between the parties is oral or written for purposes of 

determining the applicable statute of limitations. The written 

contract does not specifically describe the work Aurora was 

to complete or the cost of such work beyond the March 2012 

proposals. Tyler acknowledged that much of the work he did 

for this project was done pursuant to an oral acceptance from 

Labedz, and he described numerous parts of the project that 

were done pursuant to oral agreements.

Thus, even if the factual issues that Aurora highlights 

exist, the uncontroverted evidence establishes that parts of 

the agreement remain oral. Therefore, the contract is properly 

considered to be an oral contract, for which the 4-year statute 

of limitations applies. Accordingly, there is no genuine issue 
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of material fact affecting determination of the proper statute of 

limitations to be applied here. The district court therefore did 

not err in finding that Aurora’s action was time barred and in 

granting the motion for summary judgment.

CONCLUSION

We conclude that the district court did not err in applying 

the 4-year statute of limitations set forth in § 25-206; therefore, 

Aurora’s breach of contract action was time barred and we 

affirm the district court’s order.

Affirmed.