concurring.
I agree with the majority that a new trial on the City of Seward’s counterclaim is required; unlike the majority, however, I would conclude that there is no evidentiary basis for the $79,000 in damages claimed by the City for the cost of hiring a second engineering firm to complete the work begun by ESAL.
I agree with the majority’s conclusion that ESAL could be held liable for negligence or breach of contract if it had produced substandard work and that the City's damages could include the additional costs incurred to hire a second engineering firm to do acceptable work. In my view, however, the City has failed to demonstrate that the work done by ESAL before ESAL was fired did not meet professional standards.
Although the record is filled with testimony that ESAL’s design contained numerous errors and omissions, that testimony was based solely upon ESAL’s unfinished working papers1 which, according to the City’s expert witnesses, were “very preliminary” plans and were, at best, thirty to fifty percent complete. In my view, the City failed to establish that ESAL’s unfinished,, preliminary plans were substandard; rather, the City’s evidence established only that ESAL’s plans would have been unacceptable had they been final plans, a point with which ESAL agrees. Given the dearth of evidence that ESAL’s preliminary plans failed to meet professional standards for *1232work which was less than half complete, I conclude that there is no basis for holding ESAL liable for the additional costs incurred by the City to hire a second engineering firm.
. Richard Lowman, a civil engineer, testified on behalf of the City and based his testimony solely upon ESAL’s preliminary plans; he admitted that he had not analyzed the plans in detail. David Williams, an engineer, rested his testimony upon ESAL’s preliminary plans. Sid Clark, the City’s chief expert witness and owner of the firm that completed the design work, grounded his testimony solely on ESAL’s preliminary plans and conceded that he did not know whether ESAL had considered the items that he said were deficient.
ESAL’s position is that it “does not seriously dispute that these so-called ‘deficiencies’ in fact existed, [but] it does most vigorously dispute their characterization as such.” ESAL points out that the plans upon which the City’s expert witnesses’ testimony was based were no more than working papers and that these papers were never intended to represent the final, complete design or to contain the final specifications for the project.