S-23-0282 Nore Electric, Inc. (Appellee/Cross-Appellant) v. S&H Holdings, LLC, (Appellant/Cross-Appellee); ICMS Construction; Craig Thurston, individually and as director of ICMS; Realty Income Properties, 19, LLC (Appellant); Rose Plumbing, LLC (Appellee/Cross-Appellant); Mickey Schroeder d/b/a Mick’s Platte Valley Glass & Trailers (Appellee/Cross-Appellant); Platte Valley Excavating, Inc., Builder’s Warehouse, Inc. (Appellee/Cross-Appellant); Jerry’s Sheet Metal Heating and Cooling, Inc.; Energy Roofing Technology Company, Inc.; Paulsen, Inc. (Appellee/Cross-Appellant); Western Nebraska Bank; and any persons claiming an interest in 2505 Plum Creek Parkway, Lexington, Dawson County, Nebraska.
Appeal from the District Court for Dawson County, Judge James E. Doyle
Attorneys: Richard P. Garden and Nathan D. Clark (Cline, Williams, Wright, Johnson & Oldfather, LLP for Appellants/Cross-Appellees S&H Holdings, LLC and Reality Incomes Properties 19, LLC), Jared J. Krejci (Smith, Johnson, Allen, Connick & Hansen Law Firm for Appellee/Cross-Appellant Energy Roofing Technology, Inc.) and Elizabeth J. Klingelhoefer (Jacobsen, Orr, Lindstrom & Holbrook, PC, LLO for Appellees/Cross-Appellants Nore Electric Inc., Rose Plumbing, LLC, Mickey Schroeder d/b/a Mick’s Platte Valley Glass & Trailers, Builder’s Warehouse, Inc., and Paulsen, Inc.)
Civil: Construction Lien Foreclosure
Proceedings below: Upon cross-motions for summary judgment in this construction lien action, the district court found that the liens attached to the property, ordered the liens to be foreclosed, and awarded prejudgment interest to numerous contractors. On its own motion, the Supreme Court ordered this case to be transferred from the docket of the Court of Appeals to its docket.
Issues: Appellant makes the following assignments of error: 1) The district court erred when it concluded that the Contractors’ liens attached to the Property as the Property was not owned by S&H Holdings, the contracting owner, at the time that the liens were recorded; 2) The district court erred when it concluded that the Contractors’ liens attached to the Property because, as the court wrongfully determined, the Property retained its character as the contracting owner’s real estate being improved; 3) The district court erred when it misconstrued the effect of the lapse of the Notice of Commencement; 4) The district court erred when it concluded that the Contractors’ liens attached to the Property because Income Properties took title to the Property before the Notice of Commencement lapsed; 5) The district court erred when it concluded that Income Properties was required to delay closing on its acquisition of the Property for 31 days after the lapse of the Notice of Commencement; and 6) The district court erred when it determined that the Contractors’ construction liens had priority over the fee interest of Income Properties.
Appellee, Energy Roofing Technology, Inc., makes the following assignments of error on cross-appeal: 1) The district court erroneously determined that S&H Holdings effectively terminated the notice of commencement pursuant to Neb. Rev. Stat. § 52-146; 2) The district court correctly determined that the Contractors’ liens attached to the Real Estate, but erred in its reasoning; and 3) The district court correctly determined that the Contractors’ liens had priority over S&H Holdings and Income Properties’ interests, but erred in its reasoning.
Appellees, Nore Electric Inc., Rose Plumbing, LLC, Mickey Schroeder d/b/a Mick’s Platte Valley Glass & Trailers, Builder’s Warehouse, Inc., and Paulsen, Inc. make the following assignments of error on cross-appeal: 1) The district court erred in finding that the Termination Notice was effective because it did not include the information required by Neb. Rev. Stat. §§ 52-146(1)(a)(i) and 52-145(1)(b); 2) The district court erred in finding that the Notice of Commencement was terminated because the Termination Notice and Proof of Publication did not comply with Neb. Rev. Stat. § 52-146; and 3) The district court erred in finding that the Contractors’ liens were effective and, thus had priority, from any date other than July 5, 2018, because S&H Holdings failed to properly terminate the Notice of Commencement.