Beyond the Dotted Line: How Conduct can Rewrite a Written Contract

If you operate a business, you have likely heard this a thousand times: get it in writing. Most commercial and construction contracts include a clause stating that any changes or extra costs must be approved via a formal, written change order. But what happens when a project is moving fast, a problem arises, and a representative tells you to bypass the paperwork and just keep working?

A recent Nebraska Court of Appeals decision involving a county bridge project explains that, depending on the parties’ words and conduct during performance, a written change‑order requirement may not bar recovery for extra work—but the outcome turns on disputed facts. In Vogtscapes, Inc. v. Nemaha County, the county argued the relocation of a dirt stockpile was part of the original agreed-upon earthwork and that no written change order was ever submitted. The contractors, however, argued the relocation and plan changes were additional work to be treated and paid as an overrun.

In this dispute over moving the excess‑dirt stockpile, the court held there were genuine factual disputes about whether the extra work fell outside the original contract, whether the written change‑order clause was waived or modified, whether additional compensation was agreed to, and whether the involved representatives had authority to bind the county. Consequently, the court reversed summary judgment and remanded the case for further proceedings.

The appellate court quoted Nebraska law establishing that parties may, by their words or conduct, waive or modify a written change‑order requirement. It concluded that the record—viewed in the contractors’ favor at this stage—raised a genuine dispute on waiver and oral modification. Because the contractors offered evidence that project representatives actively told them not to submit a written change order to avoid delays and to track loads as an overrun, the court found a triable factual dispute and remanded the case.

For commercial entities, subcontractors, and developers, this case underscores two vital takeaways. First, what parties say and do during a project can, in some circumstances, waive a written change‑order clause—but whether that actually happened is a strict question of fact. Second, when a public entity is involved, a key unresolved issue is whether the specific individuals had the definitive legal authority to bind the entity to a modification or overrun. Before relying on a verbal assurance to perform extra work, always confirm that the person making the promise has the actual authority to commit the organization—especially where a public board’s formal approval is required.

Keeping modifications in writing remains the safest practice. Nebraska courts recognize that a party may not rely on a written-change‑order clause where the evidence shows their own conduct induced the other side to proceed without paperwork—but whether that occurred is decided strictly on the specific facts of the case. If you are navigating a commercial lease or construction dispute, contact our legal team today to ensure your strategy aligns with current Nebraska law.