JOHN MAIN d/b/a MAIN CONCRETE v. TERUMM CONSTRUCTORS, INC.
DOUGLAS COUNTY DISTRICT COURT CI 18-5125
JUDGMENT FOR PLAINTIFF IN THE AMOUNT OF $116,361.00
In 2015, Prairie Construction was building the Arbor View Elementary School in Elkhorn, Nebraska. Part of its contract with Elkhorn Public Schools was then subcontracted to Terumm Constructors, Inc. Terumm, in turn, subcontracted a portion of its subcontract to Yong Construction. After alleged defects and delays, Terumm’s owner, Timothy Carter, terminated Yong Construction from the job. It was now early May of 2016, and Terumm’s contract had to be completed by the time school started that fall. This is where things became messy.
John Main had been working as an employee of Terumm’s for several years. However, shortly after terminating Yong Construction, Mr. Carter terminated John Main’s employment and immediately asked that he finish Terumm’s contract as a subcontractor, rather than an employee. As part of that agreement, John would be allowed to retain all the profit that was left under Terumm’s contract with Prairie and Terumm would pay the costs of all the materials needed to complete the work. Mr. Carter alleged that $366,000 remained to be paid under its contract with Prairie.
John reviewed the contract drawings, took measurements, and discussed what work would be needed from various laborers and concrete crews. After concluding that there was plenty of profit for him to complete the work, he agreed. Everything went fine, and John was able to complete all the work just before the school opened in the Fall of 2016. Despite having completed the project on time, Terumm refused to render payment and litigation ensued.
This case should have been a slam dunk. Unfortunately, none of these agreements were written. Plus, John had, in fact, been working as an employee up to the point of the agreement to complete the project as a subcontractor – a set of facts that we suspected may raise the eyebrows of the jury. After long discussions, John and his attorney agreed that while the truth may sound odd, we would have to simply embrace it, be honest with the jury, and trust that truth would prevail.
As anticipated, Mr. Carter testified at trial that John had always been an employee – even during the completion of the Arbor View project – and that John’s assertion of the agreement “just didn’t make any sense.” Defense counsel then made a big tactical mistake – they introduced ancillary lawsuits between the same parties over unrelated matters. We assumed this was done to try to muddy the waters and divert attention away from the real issues being tried in our case. In reality, it forced Plaintiff’s counsel to dive deep in these other lawsuits, read all the pleadings, deposition testimony, and rulings in those other proceedings. There, buried deep in those files, was the smoking gun.
It was discovered that in these other lawsuits Mr. Carter made affirmative statements that John was, in fact, a subcontractor on the Arbor View project; that John had, in fact, hired its own crews to complete the work; and that John, in fact, completed the project. In addition to Mr. Carter’s own prior inconsistent statements, Plaintiff’s counsel also called rebuttal witnesses to contradict other parts of Mr. Carter’s testimony and put on an expert witness to confirm that the fair market value of the work John completed was roughly the same as the agreed price.
The case was submitted to the jury around noon on July 19, 2022. A unanimous verdict was returned in Plaintiff’s favor around 2:00 p.m. the same day.
Adam P. Johnson is an attorney licensed in Nebraska who currently practices employment, personal injury & construction law with Johnson Tabor & Johnson Law in Omaha, Nebraska. Mr. Johnson is also a founding member and current President of Johnson Roofing & Construction - a small, family-owned roofing contractor in Omaha. Mr. Johnson is a second generation Omaha native and is proud to serve its community with honest and ethical legal services. Johnson's wife, Ande, is an active volunteer in the community and currently serves on the board of the Boys & Girls Clubs of the Midlands, the Rose Theater Family Guild, and in leadership positions with the Junior League.