In re Claims Against Pierce Elevator ( 2015 )

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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
In re Claims Against Pierce Elevator.
John A. Fecht, director, Grain Warehouse Department,
Nebraska Public Service Commission, appellee and
cross-appellee, v. M atthew Christensen, claimant,
appellant, and Donnelly Trust et al., claimants,
appellees and cross-appellants, David Uecker,
claimant, appellee and cross-appellee, and
Linda A lfs et al., claimants, appellees.
___ N.W.2d ___
Filed September 11, 2015. No. S-14-899.
1. Public Service Commission: Appeal and Error. Determinations of the
Public Service Commission are reviewed de novo on the record.
2. Appeal and Error. In a review de novo on the record, an appellate court
reappraises the evidence as presented by the record and reaches its own
independent conclusions concerning the matters at issue.
3. Public Service Commission: Constitutional Law: Administrative
Law. The Public Service Commission’s authority to regulate public
grain warehouses is purely statutory, in contrast to its plenary authority
to regulate common carriers under Neb. Const. art. IV, § 20.
4. Public Service Commission: Administrative Law. The authority of the
Public Service Commission in the case of a grain warehouseman must
spring from legislative enactment, and nothing else.
5. Constitutional Law: Jurisdiction: Equity. Neb. Const. art. V, § 9, con-
fers equity jurisdiction upon the district courts.
6. Jurisdiction: Equity. Equity jurisdiction of the district courts is exercis-
able without legislative enactment and exists independently of statute.
7. Jurisdiction: Equity: Legislature. Equity jurisdiction of the district
courts may not be divested by the Legislature.
8. Administrative Law. Administrative agencies have no general judicial
powers, such as equitable powers, notwithstanding that they may per-
form some quasi-judicial duties.
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Nebraska A dvance Sheets
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
9. ____. Only a judicial tribunal, and not an administrative agency acting
as a quasi-judicial tribunal, can provide relief that is within the general
power of the court to provide.
10. Constitutional Law: Administrative Law: Courts. Unless permit-
ted by the constitution, under the principle of separation of powers,
an administrative agency may not perform purely judicial functions or
interfere with the court’s performance of those functions.
11. Public Service Commission: Administrative Law. When the Public
Service Commission adjudicates claims under the Grain Warehouse Act,
its objective is to determine those owners, depositors, storers, or quali-
fied check holders at the time a warehouse is closed.
12. Public Service Commission: Jurisdiction: Time. The Public Service
Commission has limited jurisdiction under the Grain Dealer Act to
determine the claims that exist on the date of a warehouse closure.
13. Statutes: Intent. Statutes which effect a change in the common law or
take away a common-law right should be strictly construed, and a con-
struction which restricts or removes a common-law right should not be
adopted unless the plain words of the statute compel it.
14. Actions: Equity: Jurisdiction. An action in equity must be founded on
some recognized source of equity jurisdiction.
15. Rescission: Fraud. Fraud and misrepresentation give rise to the remedy
of rescission of a contract.
16. Actions: Rescission: Equity. An action for rescission sounds in equity.
17. Actions: Trusts: Equity. An action to impose a constructive trust is an
equitable action.
18. Public Service Commission: Administrative Law: Time. The Grain
Warehouse Act establishes a temporal requirement, or a point in time at
which the rights of entities claiming to be either owners, depositors, or
storers of grain are fixed, and a physical requirement that the grain be
stored in a warehouse at the time the Public Service Commission takes
possession of the grain.
19. Sales. Issuance of a check under Neb. Rev. Stat. § 88-530 (Reissue
2014) occurs when the check is first delivered by the maker or drawer.
20. Appeal and Error. To be considered by an appellate court, an error
must be both specifically assigned and specifically argued in the brief of
the party asserting the error.
21. ____. Errors that are assigned but not argued will not be addressed by an
appellate court.
22. Parol Evidence: Contracts. The parol evidence rule renders ineffective
proof of a prior or contemporaneous oral agreement that alters, varies,
or contradicts the terms of a written agreement.
23. ____: ____. The parol evidence rule is designed to preserve the
integrity and certainty of written documents against disputes arising
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
from fraudulent claims or faulty recollections of the parties’ intent as
expressed in the final writing.
24. Contracts. Extrinsic evidence is not permitted to explain the terms of a
contract that is not ambiguous.
25. ____. A determination as to whether an ambiguity exists is made as a
matter of law and on an objective basis, not by the subjective conten-
tions of the parties.
26. Contracts: Words and Phrases. A contract is ambiguous when a word,
phrase, or provision in the contract has, or is susceptible of, at least two
reasonable but conflicting interpretations or meanings.
27. Contracts: Intent. When a contract is unambiguous, the intentions of
the parties must be determined from the contract itself.
28. Testimony: Parol Evidence: Parties: Intent. Testimony seeking to
prove the parties’ intent is considered parol evidence.
29. Contracts. An argument that the party did not read or understand the
document he or she was signing is no defense to the formation of
a contract.
30. Directed Verdict: Evidence: Proof. Prima facie proof is evidence suf-
ficient to submit an issue to the fact finder and precludes a directed
verdict on the issue.
31. Administrative Law: Statutes: Sales: Evidence: Proof. Although the
statutes and regulations prescribe one form of evidence to establish a
prima facie case that an in-store transfer occurred, other forms of evi-
dence may also provide proof.
32. Actions: Parties: Standing. A party has standing to invoke a court’s
jurisdiction if it has a legal or equitable right, title, or interest in the
subject matter of the controversy.
33. Standing: Jurisdiction: Justiciable Issues. As an aspect of jurisdiction
and justiciability, standing requires that a litigant have such a personal
stake in the outcome of a controversy as to warrant invocation of a
court’s jurisdiction and justify the exercise of the court’s remedial pow-
ers on the litigants’ behalf.
34. Standing: Proof. In order for a party to establish standing to bring
suit, it is necessary to show that the party is in danger of sustaining
a direct injury as a result of anticipated action, and it is not sufficient
that one has merely a general interest common to all members of
the public.
35. Standing: Jurisdiction. If the party appealing the issue lacks standing,
the court is without jurisdiction to decide the issues in the case.
Appeal from the Public Service Commission. Affirmed in
part, and in part reversed and dismissed.
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Nebraska A dvance Sheets
291 Nebraska R eports
IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
Rocky C. Weber and Andrew C. Pease, of Crosby Guenzel,
L.L.P., for appellant.
Richard P. Garden, Jr., Austin L. McKillip, and Gregory
S. Frayser, of Cline, Williams, Wright, Johnson & Oldfather,
L.L.P., for appellees Donnelly Trust et al.
Douglas J. Peterson, Attorney General, and L. Jay Bartel for
appellee John A. Fecht.
Heavican, C.J., Connolly, Stephan, McCormack, and
Cassel, JJ., and Pirtle, Judge.
McCormack, J.
I. NATURE OF CASE
This appeal arises out of proceedings initiated by the
Nebraska Public Service Commission (PSC) following the
insolvency of Pierce Elevator, Inc. (PEI), to determine claims
under the Grain Warehouse Act1 and the Grain Dealer Act.2
PEI voluntarily surrendered its grain warehouse license to the
PSC on March 4, 2014, and the PSC took title to all PEI grain
in storage in trust for all valid owners, depositors, or storers
of grain pursuant to the Grain Warehouse Act. The PSC then
determined valid claims under the Grain Warehouse Act and
the Grain Dealer Act. The appellant and cross-appellants are
claimants who are dissatisfied with the PSC’s classification of
their claims.
II. BACKGROUND
1. PEI
PEI operated licensed grain warehouses in Pierce, Randolph,
and Foster, Nebraska. Brian Bargstadt was PEI’s president and
one-third owner.
PEI maintained a banking relationship with Citizens State
Bank (the Bank) and obtained operating loans from the Bank.
1
Neb. Rev. Stat. §§ 88-525 through 88-552 (Reissue 2014).
2
Neb. Rev. Stat. §§ 75-901 through 75-910 (Reissue 2009).
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
PEI borrowed funds from the Bank on a line of credit to facili-
tate the purchase of grain from its producers.
PEI’s accountant testified that PEI was “in trouble” by the
end of 2012 and that PEI needed to raise capital to address the
negative owner’s equity. At the end of 2012, PEI had a work-
ing capital deficiency in excess of $2.2 million.
On August 30, 2013, PEI’s line of credit matured and
the Bank permitted the line of credit to go past due until
September 19. On that date, the Bank and PEI entered into
a new contract extending the due date until October 31. The
Bank agreed to continue to extend the maturity of PEI’s line
of credit on a monthly basis while PEI, its accountant, and
the Bank addressed the working capital deficiency. Bargstadt
testified that he requested the monthly extensions of the line
of credit “[t]o satisfy John Fecht [the director of the PSC’s
grain warehouse department]” because “he wanted to know
if we had money in our account to pay our bills and pay
the grain.”
During this time, the PSC became concerned about PEI’s
ability to pay producers. The PSC intensified its scrutiny of
PEI because PEI’s grain warehouse and dealer’s licenses were
set to expire at the end of September 2013. The PSC’s grain
warehouse department’s director, John A. Fecht, expressed his
concern that the Bank had not extended its line of credit for
another year, stating:
With harvest coming soon, it is imperative that I know
you have money available to pay for any grain expense or
anything else for that matter. . . .
....
It would seem that there is still uncertainty with the
bank going forward . . . . You realize that if things would
go bad, it will mean the license and the ability to con-
tinue will come to a halt.
The PSC then began to require PEI to submit bank account
and loan balances to the PSC every 3 days.
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
In the months ensuing, PEI attempted to work out a solution
to its impending insolvency. On March 3, 2014, Fecht sent an
e-mail to the Bank, stating:
I’m hoping you folks have made a decision on whether
you’re renewing this line of credit in the short term or
long term? . . .
I really need to know if the bank will continue to
honor checks written by [PEI] for today and going for-
ward. . . . I must look after the farmers doing business
with [PEI].
The Bank officials met on March 3, 2014, and decided to
terminate the loan relationship with PEI. The Bank informed
Bargstadt the afternoon of March 3 that the Bank would not
renew the line of credit. The PSC learned of the Bank’s deci-
sion not to renew the line of credit and to no longer honor
PEI’s checks via an e-mail sent the evening of March 3.
2. PSC Claims
PEI voluntarily surrendered its grain warehouse license on
March 4, 2014, and on March 5, the PSC entered an order clos-
ing PEI’s warehouse locations and taking title to all grain in
storage in trust for distribution to all valid owners, depositors,
or storers of grain pursuant to the Grain Warehouse Act. The
PSC also was required to determine valid claims against PEI’s
grain dealer bond pursuant to the Grain Dealer Act.
The PSC examined PEI’s records and compiled possible
claims, and then mailed claim forms to potential warehouse
and dealer claimants. After receiving returned claim forms, the
PSC held a hearing on July 8, 2014, to take evidence to deter-
mine valid claimants under the Grain Warehouse Act and the
Grain Dealer Act.
The PSC ultimately approved warehouse claims totaling
$4,620,184.02. This amount was satisfied in full by proceeds
from the sale of grain in storage.3 The proceeds from the
3
See 291 Neb. Admin. Code, ch. 8, § 002.05B (2014).
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
grain in storage were in excess of the amount necessary to
settle the grain warehouse claims. According to the PSC’s
order, “[i]n the event that any proceeds from the sale of grain
remain after all valid claims are satisfied, the remainder will
be returned to [PEI].”
The PSC also approved dealer claims totaling $3,342,793.54.
Under the Grain Dealer Act, the only monetary relief available
for satisfaction of these claims was PEI’s required statutory
bond in the amount of $300,000.4 This bond provided each
dealer with $.09 per $1 for each approved claim.
3. David Uecker Transaction
In mid-January 2014, PEI was in need of money to make
payments to producers. Bargstadt called an official at the
Bank and requested an advance to cover outstanding checks,
but the official refused. Bargstadt contacted a local farmer,
David Uecker, and asked Uecker to loan PEI $800,000. Uecker
agreed to give PEI the money. As collateral, Uecker took a
security interest in 200,000 bushels of corn at $4 per bushel.
Thereafter, PEI repaid Uecker $200,000.
The PSC determined that Uecker was entitled to an approved
grain dealer claim on the remaining amount of $600,000.
Uecker is not an appellant or a cross-appellant in this appeal,
but the PSC’s determination of his claim as a dealer claim
is disputed by some of the cross-appellants. These cross-­
appellants argue that the $600,000 was a secured loan and
should not be classified as a dealer claim and prioritized
against the dealer bond.
4. Daniel Gansebom
On December 24, 2013, Daniel Gansebom contracted to
sell 75,000 bushels of corn to PEI with delivery to be com-
pleted by March 2014. The contract provided that title to the
grain passed to PEI upon delivery, stating “[t]itle to, all rights
4
§ 75-903(4).
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
of ownership and risk of loss of the grain shall remain in
Seller until physical delivery to Buyer’s designated Delivery
Location whereupon it shall pass to Buyer.” In November
2013, pursuant to a separate contract, Gansebom had also
agreed to sell additional corn to PEI.
Between October 31, 2013, and January 27, 2014, 84,442.33
bushels of corn were picked up from Gansebom by PEI and
delivered to Elkhorn Valley Ethanol, L.L.C.; Husker AG,
LLC; and Agrex Inc. (third-party grain terminals). None of
the corn was delivered directly to PEI. Of those bushels,
75,000 were in satisfaction of Gansebom’s obligation under
the December 2013 contract, and the additional 9,402.51
bushels were applied to Gansebom’s obligation under the
November 2013 contract.
PEI prepared check No. 43157 in the amount of $321,350.25
as payment under the December 2013 contract. Gansebom
avers that Bargstadt told him that this check was dated March
3, 2014, and stored in PEI’s safe at that time. The check was
delivered to Gansebom on July 8. However, the funds in PEI’s
accounts were insufficient to pay the check and Gansebom has
not been paid for any of the 84,442.33 bushels of corn picked
up by PEI.
At the proceedings before the PSC, Gansebom claimed
the 84,442.33 bushels were stored grain, arguing he sold the
grain to PEI only as a result of PEI’s fraudulent inducement.
Additionally, Gansebom claimed he should be treated as a
qualified check holder with regard to his claims related to
check No. 43157.
The PSC classified Gansebom’s claims as dealer claims and
denied recovery because the “loads were not delivered within
the thirty-day coverage period of the bond.” Further, the PSC
found that Gansebom agreed to direct deliver 135,000 bushels
of corn. The PSC found that the grain was direct delivered
in partial satisfaction of a contract and that the remainder of
the contract was voided by Gansebom and PEI and, therefore,
could not constitute a claim against the dealer bond.
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
5. Donnelly Trust
Donnelly Trust, with the assistance of its contracted farm
manager, owns and operates a farm in northeast Nebraska.
During the fall of 2013, the trust harvested and delivered corn
and soybeans to PEI’s facilities in Pierce and Randolph for
storage. The trust received scale tickets evidencing that the
corn and soybeans were delivered to Pierce and Randolph and
held there by PEI in open storage.
Donnelly Trust’s farm manager testified that it was his stan-
dard practice to call PEI and ask PEI to sell the trust’s grain
in storage at a point in time when he felt commodity prices
had reached a level favorable to the farm. This sale was initi-
ated through the manager’s telephone call, and the contract
was executed orally. PEI and the manager would agree on a
price at the time of his call. The manager testified that storage
stopped at the time he called PEI to sell the grain. PEI would
typically pay for the sold grain by mailing a check, which
the trust usually received anywhere from 2 to 15 days after
the sale.
On February 24, 2014, Donnelly Trust decided to sell certain
amounts of corn and soybeans from open storage to PEI. Also
on February 24, PEI executed checks Nos. 43095, 43081, and
43080, which were made payable to the trust. The checks were
in the total aggregate amount of $136,010.51.
However, PEI did not deliver the checks to Donnelly Trust
prior to the PSC takeover on March 5, 2014. Upon learning
that the PSC held the checks executed by PEI, the trust made
demand for delivery of the checks. The PSC did not deliver
the checks.
Donnelly Trust made a claim in the proceeding before the
PSC for treatment as a qualified check holder. However, with
regard to portions of checks Nos. 43095, 43081, and 43080,
the PSC denied the trust’s qualified check holder claims,
specifically stating that title to the grain passed to PEI when
the agreement to sell from open storage was reached. More
generally, the PSC found that the language of § 88-530 is
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
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susceptible to differing reasonable interpretations. In looking
at the context of the Grain Warehouse Act as a whole, the PSC
stated that “[p]roducers have a responsibility to be prudent and
reasonable businesspeople and seek payment for sold grain in a
timely fashion” and that the act is “clearly intended to encour-
age timely demand for payment by producers and timely pay-
ment by warehousem[e]n.”
Donnelly Trust’s grain dealer claims were also denied
because the deliveries were completed outside the 30-day cov-
erage period of the grain dealer bond.
6. TTK Investments, Inc.
TTK Investments, Inc. (TTK), owns and operates a farm in
northeast Nebraska. During the fall of 2013, TTK harvested
and delivered corn to PEI’s facilities in Pierce and Randolph
for storage. TTK received scale tickets evidencing that the
corn was delivered to Pierce and Randolph and held by PEI in
open storage.
On February 24, 2014, TTK sold 5,615.61 bushels of corn
from open storage to PEI. The contract was executed, and PEI
prepared check No. 43083 as payment for the corn sold by
TTK. The check was for the total amount of $22,003.50 and
was dated February 24, 2014. PEI did not deliver the check
prior to the PSC takeover of PEI on March 5.
TTK made a claim to the PSC as a qualified check holder.
The PSC denied TTK’s qualified check holder claim, spe-
cifically stating that title to the grain passed to PEI when
the agreement to sell from open storage was reached. On
appeal, TTK challenges the PSC’s finding. TTK also appeals
the PSC’s classification of Uecker’s claim as an approved
dealer claim.
7. Curt R aabe
Curt Raabe is a farmer in Pierce County, Nebraska, and
was a customer of PEI from approximately 2004 until its
closure on March 5, 2014. During the fall of 2013, Raabe
harvested 7,192.99 bushels of soybeans. In September and
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
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October 2013, PEI picked up the soybeans from Raabe’s farm
and transported the soybeans to PEI’s open storage facil-
ity in Pierce. Raabe received scale tickets evidencing that
the soybeans were delivered to Pierce and held by PEI in
open storage.
On February 5, 2014, Raabe executed a contract, selling
his soybeans in open storage to PEI. Thereafter, Raabe did
not receive payment on account of the sale, and on February
25, Raabe contacted Bargstadt regarding the missing pay-
ment. Bargstadt informed Raabe that a check had been written.
Raabe demanded immediate payment. On February 28, Raabe
received check No. 42900 in the amount of $88,510.54, which
was the amount due on the sale of the soybeans from open
storage. On March 3, Raabe deposited the check, and on March
6, it was returned for insufficient funds.
Raabe filed a claim seeking to participate in the distribution
of the proceeds from the sale of grain in the warehouse as a
qualified check holder. The PSC found that Raabe was not a
qualified check holder because he was not an owner of grain
stored in the warehouse within 5 business days prior to the
closure of the warehouse.5
Raabe challenges this finding on appeal. He also argues
that Uecker’s claim should not have been classified as a
dealer claim.
8. James Herian and Diane Herian
James Herian and Diane Herian are corn farmers in Pierce
County. The Herians were customers of PEI, and their prac-
tice was to store some of their corn in on-farm storage bins
and store any excess corn in storage at PEI’s warehouse. In
accord­ance with this practice, during the 2013 corn harvest,
the Herians delivered 37,543.78 bushels of corn into PEI’s
warehouse. At that time, the Herians did not sell the grain to
PEI, but instead directed that their corn be placed in open stor-
age at PEI’s warehouse. Despite the Herians’ understanding
5
See § 88-530.
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that their grain would be stored at PEI, the Herians’ bushels
were instead taken directly to third-party grain terminals.
In January 2014, the Herians decided to sell 9,801.428 bush-
els of their corn that they believed to be in storage at PEI to
PEI. The Herians were paid for this January 2014 sale.
After the January 2014 sale, the Herians were still uncom-
pensated for the 27,742.05 remaining bushels of corn that
they believed they held in open storage at PEI. James stated
he did not learn that the remaining bushels had been direct
delivered in the fall of 2013 to other locations instead of the
PEI facility until after the PSC closed PEI. The Herians never
agreed, orally or by written contract, to sell the remaining
bushels to PEI or to any other third party. The Herians were
never paid for the remaining bushels. James avowed that
Bargstadt told him he owed the Herians money as a result
of mishandling the remaining bushels and that Bargstadt
indicated he would give the Herians cattle to make up for
the mishandling.
When the PSC took control of PEI, the Herians obtained a
grain settlement sheet, in which their bushels were listed under
“Open Storage.” The location code of the bushels is listed
as “010.” The deputy director of the PSC’s grain warehouse
department explained that a location code of 10 is used to
identify grain delivered to other locations. He also testified that
PEI’s computer software used a default setting of “open stor-
age” on all transactions.
When the PSC prepared claim forms for the Herians, the
PSC indicated that their claim was a grain “dealer” claim. And
the PSC denied the Herians’ claim. The PSC reasoned that the
corn was not in storage at the warehouse but that instead, the
corn had been directly delivered to third-party grain terminals.
Because PEI had completed no in-store transfer document or
notice, the PSC found the Herians’ claim was a dealer claim.
Since the grain had been delivered beyond the 30-day coverage
period for the grain dealer bond, the Herians were not allowed
recovery under the Grain Dealer Act.
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IN RE CLAIMS AGAINST PIERCE ELEVATOR
Cite as 291 Neb. 798
The Herians appeal, arguing the PSC should have found that
the Herians were owners of the 27,742.05 remaining bushels of
corn in open storage at PEI’s warehouse at the time of PEI’s
closure and that therefore, the Herians’ claim should have been
classified as a warehouse claim and not as a dealer claim. In
the alternative, the Herians argue that the PSC should have
placed a constructive trust upon their bushels of corn by reason
of PEI’s fraudulent conduct.
9. M atthew Christensen
Matthew Christensen is a farmer in Pierce County.
Christensen delivered 38,628.05 bushels of corn to PEI for
which he holds scale tickets proving receipt of the corn by PEI
and delivery of the corn into open storage under his name. As
a matter of practice, Christensen never sold his grain using
unpriced or priced-later (delayed-price) contracts, but limited
any cash-forward contract sales of grain to set price contracts
at current or near term delivery dates.
On February 7, 2014, an employee of PEI called Christensen
at the request of Bargstadt. Christensen testified that the
employee asked him to come to the offices of PEI to sign a
form requested of PEI by the PSC. When Christensen arrived
at PEI, the employee gave him a form entitled “Delayed
Price Contract #9133” and was told that the form needed
to be executed by Christensen and faxed to the PSC before
the close of business that day. Christensen averred that he
“reviewed Contract #9133” and “noted that there was no set
price, there was no basis month, basis or price fix date identi-
fied even though the contract language purported to require
that information.”
Christensen testified that he signed the contract solely for
the reason that he believed the PEI employee’s representa-
tion to him that the PSC required PEI to obtain the signed
document from him and that the document merely verified
the number of bushels of corn that he had in storage at PEI
at the time. Christensen testified that he believed the contract
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to be a “form” requested by the PSC which reported and
verified the number of bushels Christensen stored at PEI.
Christensen testified that he did not believe it was a docu-
ment that would transfer title of Christensen’s stored corn.
Christensen also averred that his “course of dealing” with
PEI had never included entering into a delayed-price con-
tract. The PEI employee testified that she knew the document
was a contract, but that she did not recall her conversation
with Christensen or whether she mentioned that the PSC was
involved in the document.
Bargstadt also testified that he did not consider a delayed-
price contract to be a sale of corn which transferred title.
Bargstadt stated “delayed price is not a sale.” Instead, Bargstadt
described the intent of PEI with this contract as “Christensen
still has [a] say about [the] bushels because he hasn’t sold them.
They’re — they’re his until they’re sold . . . .” With respect to
priced-later grain, Bargstadt testified that “the day [the PSC]
closed us down, all the grain that’s in delayed pricing or priced
later, this [grain is] all in the elevators and everybody deserves
to have that grain back.”
The PSC had not requested that PEI have Christensen sign
any form or contract for delivery to the PSC. Instead, pursuant
to contract No. 9133, PEI transferred the 38,628.05 bushels of
corn from open storage to priced-later contract status on its
daily grain position report on February 3, 2014. February 3 was
4 days before Christensen testified that he signed the contract.
The contract, as signed, stated, “Title to, all rights of owner-
ship and risk of loss of the grain shall remain in Seller until
physical delivery to Buyer’s designated Delivery Location
whereupon it shall pass to Buyer.” Christensen admits that he
signed the contract, but asserts that he did not intend to trans-
fer title to the corn or enter into a contract to price his corn at
a later date.
Christensen filed a claim asserting that he was an owner,
depositor, or storer of corn in PEI as of the date of its closure
by the PSC and that the contract was void or voidable by
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reason of fraud. The PSC denied Christensen’s claim, finding
that ultimately, Christensen was not an owner, depositor, or
storer of grain and that “the relief sought by . . . Christensen
on the basis of his allegations of fraud must be sought in the
scope of a private action against the appropriate parties and not
within the scope of this claims hearing.”
Christensen appeals, arguing that the PSC erred in find-
ing the contract effectively transferred title to his grain and
in failing to assert jurisdiction over his fraudulent induce-
ment claim.
III. ASSIGNMENTS OF ERROR
Cross-appellants Donnelly Trust, Raabe, and TTK appeal the
PSC’s classification of their claims as dealer claims and not as
qualified check holder claims.
Cross-appellant Gansebom appeals the classification of his
claim as a dealer claim rather than as a warehouse claim and
the refusal of the PSC to classify Gansebom as a “storer of
grain with regard to the 84,442.33 bushels of corn which were
delivered as a result of PEI’s fraud.”
Cross-appellants the Herians appeal the PSC’s classifica-
tion of their claim as a dealer claim rather than as a ware-
house claim. The Herians also argue that the PSC should have
imposed a constructive trust upon the Herians’ claimed bushels
due to PEI’s fraudulent conduct.
Appellant Christensen appeals the PSC’s finding that the
delayed-price contract he signed was enforceable, despite
his lack of intent to enter into a contract transferring title
to his grain. Alternatively, Christensen argues that he was
fraudulently induced to execute the contract and that the
PSC should have exercised its jurisdiction to adjudicate
the fraudulent inducement claim as a part of the July 2014
proceedings.
Cross-appellants Donnelly Trust, Raabe, TTK, and Gansebom
appeal the PSC’s grant of Uecker’s dealer claim in the amount
of $600,000, instead of classifying it as a secured loan.
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IV. STANDARD OF REVIEW
[1,2] Determinations of the PSC are reviewed de novo on
the record.6 In a review de novo on the record, an appellate
court reappraises the evidence as presented by the record and
reaches its own independent conclusions concerning the mat-
ters at issue.7
V. ANALYSIS
1. PSC Does Not H ave Jurisdiction
Over Equitable Claims
Appellant Christensen argues that the PSC erred in failing
to find that he was fraudulently induced into executing the
delayed-price contract and that the PSC erred in determining
that it lacked jurisdiction to adjudicate this fraud claim. Cross-
appellants the Herians and Gansebom argue that the PSC failed
to find that a constructive trust should have been imposed
upon grain in storage by reason of PEI’s fraudulent conduct.
They also ask that their contracts be voided or rescinded due
to PEI’s fraudulent conduct. They reason that in the scope of
its limited proceedings the PSC did not have jurisdiction to
address such equitable claims. We agree.
[3,4] The PSC’s authority to regulate public grain ware-
houses is purely statutory, in contrast to its plenary authority
to regulate common carriers under Neb. Const. art. IV, § 20.8
“The authority of the [PSC] in the [case of a grain ware-
houseman] must spring from legislative enactment, and noth-
ing else.”9
6
Neb. Rev. Stat. § 75-136(2) (Cum. Supp. 2014); Telrite Corp. v. Nebraska
Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d 910 (2014).
7
Id.
8
In re Complaint of Fecht, 224 Neb. 752, 401 N.W.2d 470 (1987); In re
Complaint of Fecht, 216 Neb. 535, 344 N.W.2d 636 (1984).
9
In re Complaint of Fecht, supra note 8, 216 Neb. at 539, 344 N.W.2d at
639.
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[5-7] Neb. Const. art. V, § 9, confers equity jurisdic-
tion upon the district courts.10 This equity jurisdiction is
­exercisable without legislative enactment and exists indepen-
dently of statute.11 Further, this equity jurisdiction may not be
divested by the Legislature.12
[8-10] In contrast, as a general rule, administrative agencies
have no general judicial powers, such as equitable powers,
notwithstanding that they may perform some quasi-judicial
duties.13 “Only a judicial tribunal, and not an administrative
agency acting as a quasi-judicial tribunal, can provide relief
that is ‘“within the general power of the court”’ to provide.”14
Unless permitted by the constitution, under the principle of
separation of powers, an administrative agency may not per-
form purely judicial functions or interfere with the court’s per-
formance of those functions.15
[11] By statute, the PSC is given jurisdiction over, among
other things, “Grain pursuant to the Grain Dealer Act and the
Grain Warehouse Act and sections 89-1,104 to 89-1,108.”16
More specifically, under the Grain Warehouse Act, the PSC
explicitly is given the power to “close the warehouse and
[t]ake title to all grain stored in the warehouse . . . in trust for
distribution . . . to all valid owners, depositors, or storers of
grain who are holders of evidence of ownership of grain.”17
Additionally, the PSC “determine[s] the value of the shortage
10
See Charleen J. v. Blake O., 289 Neb. 454, 855 N.W.2d 587 (2014).
11
See, State, ex rel. Sorensen, v. Nebraska State Bank, 124 Neb. 449, 247
N.W. 31 (1933); Hall v. Hall, 123 Neb. 280, 242 N.W. 607 (1932).
12
State, ex rel. Sorensen, v. Nebraska State Bank, supra note 11.
13
In re 2007 Appropriations of Niobrara River Waters, 283 Neb. 629, 820
N.W.2d 44 (2012).
14
Id. at 650, 820 N.W.2d at 62 (quoting Stoneman v. United Neb. Bank, 254
Neb. 477, 577 N.W.2d 271 (1998)).
15
73 C.J.S. Public Administrative Law and Procedure § 94 (2014).
16
Neb. Rev. Stat. § 75-109.01(2) (Reissue 2009).
17
§ 88-547(1)
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and the . . . loss to each owner, depositor, or storer of grain.”18
Read in conjunction with other provisions of the act, the PSC
is to determine which claimants receive the “priority lien”
under the act.19 That priority may only be given to “valid own-
ers, depositors, or storers of grain who are holders of evidence
of ownership of grain”20 or those who hold a check for pur-
chase of grain stored in such warehouse which was issued by
the warehouse licensee not more than 5 business days prior to
closure of the warehouse.21 When the PSC adjudicates claims
under the Grain Warehouse Act, its objective is to determine
those owners, depositors, storers, or qualified check holders at
the time a warehouse is closed.
[12] Under the Grain Dealer Act, the PSC explicitly is
given the power to “demand that such dealer’s security be
forfeited and may place the proceeds of the security in an
interest-­bearing trust until it fully determines each claim on
the security. The [PSC] shall disburse the security according
to each claim determined.”22 This statute gives the PSC limited
jurisdiction to determine the claims that exist under the Grain
Dealer Act on the date of a warehouse closure.
[13,14] Statutes which effect a change in the common law
or take away a common-law right should be strictly construed,
and a construction which restricts or removes a common-law
right should not be adopted unless the plain words of the
statute compel it.23 Since it is a matter of common law that
administrative bodies do not have juridical powers, such as
equitable jurisdiction, unless otherwise conferred by stat-
ute, we will not read such equitable powers into the PSC’s
18
§ 88-547(2).
19
See §§ 88-547 and 88-547.01.
20
§ 88-547.01(2).
21
§ 88-530. See, also, 291 Neb. Admin. Code, ch. 8, § 002.18C5 (2014).
22
§ 75-906.
23
In re 2007 Appropriations of Niobrara River Waters, supra note 13.
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jurisdiction unless the statute explicitly says to do so. An
action in equity must be founded on some recognized source
of equity jurisdiction.24
[15-17] Fraud and misrepresentation give rise to the rem-
edy of rescission of a contract.25 An action for rescission
sounds in equity.26 Further, an action to impose a constructive
trust is an equitable action.27
The sole duty of the PSC in these proceedings is to deter-
mine who has a claim under the Grain Warehouse Act and the
Grain Dealer Act at the time of the closure of the warehouse.
The determination of these claims is a limited proceeding.
The acts do not address the common-law theories of fraud,
nor do they confer equitable jurisdiction on the PSC. Theories
which ask for rescission of a contract or imposition of a con-
structive trust are equitable in nature. Therefore, the PSC was
correct in limiting its jurisdiction in these proceedings and
declining to exercise jurisdiction to determine the fraud claims.
In its order determining claims in this case, the PSC properly
recognized the limits of its statutory authority and the absence
of any authority to grant equitable relief. The PSC was correct
to decline jurisdiction over Gansebom’s claims of fraudulent
misrepresentation, concealment, and operation of a “Ponzi
scheme” and correct to decline to impose a constructive trust.
Further, the PSC was correct in declining to impose a con-
structive trust as a result of the fraud alleged by the Herians.
Finally, the PSC was correct to decline to adjudicate the fraud
claims of Christensen and to rescind or void his contract
with PEI.
24
Hornig v. Martel Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000).
25
See, Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424
(2011); Bauermeister v. McReynolds, 253 Neb. 554, 571 N.W.2d 79
(1997).
26
Cao v. Nguyen, 258 Neb. 1027, 607 N.W.2d 528 (2000).
27
City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809
N.W.2d 725 (2011).
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It very well may be true that all of these claimants are
entitled to some form of relief against PEI based on claims
of fraud or other wrongdoing. However, the Grain Warehouse
Act and the Grain Dealer Act simply do not allow all forms
of relief through its terms. The limited scope of those acts
does not allow the PSC to determine all claims of wrongdoing
against PEI.
2. Grain Warehouse and
Dealer Claims
Appellant Christensen argues that he should have been
classified as an owner of grain in storage, rather than as a
dealer, because the delayed-price contract he signed was not
an enforceable contract for the sale of grain and that there-
fore, he never transferred title to his grain in storage. The
PSC found that the contract was enforceable and, thus, denied
Christensen’s warehouse claim.
Cross-appellants the Herians argue that their claim was
improperly classified as a dealer claim rather than as a ware-
house claim and that it was improper to deny their claim as a
whole. The Herians base their argument on the fact that they
retained ownership in grain in storage by way of an in-store
transfer. The PSC found that because the Herians did not show
an official in-store transfer notice, the Herians had not satisfied
their burden of proving that an in-store transfer occurred.
Cross-appellants Donnelly Trust, TTK, and Gansebom argue
that they should have received treatment as qualified check
holders under the Grain Warehouse Act, because PEI executed
checks to each in satisfaction of an oral contract.
Cross-appellant Raabe also argues that he should have
received treatment as a qualified check holder, because he held
a check executed by PEI but it was returned for insufficient
funds after PEI closed. The PSC denied Raabe recovery as a
qualified check holder.
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(a) Statutory Scheme
As the PSC stated, “[t]he Grain Warehouse Act and the
Grain Dealer Act . . . cover very distinct activity.” Those
who are licensed as grain warehouses can buy, sell, and store
grain.28 In contrast, grain dealers can act only as a dealer
among buyers and sellers of grain.29 Both the Grain Warehouse
Act and the Grain Dealer Act require that a business licensed
under such acts carry a “security” or bond that is available for
the benefit of the licensee’s customers and clients in the event
that the licensee is closed down or goes out of business.30 The
security is in an amount set by the PSC, pursuant to its rules
and regulations.31 The warehouse bond and the dealer bond
cannot be combined, because the activity covered by each bond
is unique and the requirements for bond protection under each
bond are different. Despite the different activities, a business,
such as PEI, may, and often does, have a business model under
which it is licensed to both store grain and deal grain, and thus,
both acts apply to the business, but each act applies to a differ-
ent part of the business.32
Upon the closure of a licensed grain warehouseman under
the Grain Warehouse Act, the PSC takes title to and may sell
all of the grain in storage to satisfy, pro rata, those entitled to
payment under the Grain Warehouse Act.33 Proceeds from the
sale of this grain is subject to a first priority lien in favor of
valid owners, depositors, or storers of grain who are holders
28
See, e.g., D.K. Buskirk & Sons v. State, No. A-94-270, 1996 WL 45196
(Neb. App. Feb. 6, 1996) (not designated for permanent publication),
affirmed and remanded 252 Neb. 84, 560 N.W.2d 462 (1997).
29
Id.
30
See §§ 88-530 and 75-903(4).
31
Id.
32
See, also, D.K. Buskirk & Sons v. State, supra note 28.
33
§ 88-547(1).
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of evidence of ownership of grain.34 This lien is preferred
to any other lien or security interest in favor of any creditor
of the warehouse licensee.35 If the proceeds from the sale of
grain are not enough to compensate all claimants, then the
warehouse bond is also available for claimants that qualify
under the Grain Warehouse Act.36
In contrast, upon the closure of a licensed grain dealer, those
who have a dealer claim have only the dealer bond from which
to recover.37 In this case, this results in a full reimbursement to
all claimants classified as warehouse claimants, as opposed to
the $.09 per $1 due to those claimants under the Grain Dealer
Act. Therefore, it is imperative to determine which claimants
fall under which act.
(b) Qualifications for Recovery
Under Grain Warehouse Act
In order to qualify for the first priority lien under the Grain
Warehouse Act, one must qualify as a valid owner, depositor,
or storer of grain or as a qualified check holder.38
(i) Storer of Grain in Warehouse
As the PSC stated in its order, the Grain Warehouse Act
applies and covers “those who store their grain in a warehouse,
but still own the grain.” “Grain in storage” is defined as “any
grain which has been received at any warehouse and to which
title has not been transferred to the warehouseman by signed
contract or priced scale ticket.”39 Therefore, anyone who owns
34
Id.
35
Id.
36
§§ 88-530 and 88-547.01(2).
37
§ 88-547.
38
See, § 88-547; 291 Neb. Admin. Code, ch. 8, §§ 001.01W, 002.05B, and
002.18C5 (2014).
39
§ 88-526(6).
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“grain in storage” is considered a storer and entitled to recov-
ery under the Grain Warehouse Act.
[18] We discussed the determination of an entity’s status
as owner, depositor, or storer of grain in In re Claims Against
Atlanta Elev., Inc.40 We stated that the statute
establishes a temporal requirement, that is, a point in time
at which the rights of entities claiming to be either “own-
ers, depositors, or storers” of grain are fixed. . . . [A]n
entity’s status is determined “at that time” at which the
PSC takes title to the grain stored in the warehouse, and
it is an entity’s status as an owner, depositor, or storer of
grain in storage at such time that determines such entity’s
right to subsequently receive a pro rata distribution of
the proceeds.41
In addition to a temporal requirement, we found that the stat-
ute also contains a physical requirement.42 The grain must be
“‘stored in the warehouse’” at the time the PSC takes posses-
sion of the grain.43 “The temporal and physical requirements
necessarily result in preference being given to certain claimants
who meet the requirements as compared to other entities who
do not meet the requirements but nonetheless may have rights
against the insolvent warehouse.”44
Thus, it is significant to our analysis to determine the status
of each individual or entity at the time the PSC took title to the
grain on March 5, 2014.45 In order to recover as an owner or
40
In re Claims Against Atlanta Elev., Inc., 268 Neb. 598, 685 N.W.2d 477
(2004) (superseded by statute as stated in Telrite Corp. v. Nebraska Pub.
Serv. Comm., supra note 6).
41
Id. at 606, 685 N.W.2d at 485 (quoting § 88-547(1)).
42
Id. See, also, § 88-547(1).
43
Id.
44
Mayfield v. Nebraska Pub. Serv. Comm., No. A-09-287, 2009 WL 5851467
at *2 (Neb. App. Dec. 15, 2009) (selected for posting to court Web site).
See, also, In re Claims Against Atlanta Elev., Inc., supra note 40.
45
See In re Claims Against Atlanta Elev., Inc., supra note 40.
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storer of grain, each claimant must have held title to grain in
storage on the date of the warehouse closure.
(ii) Owner of Grain in Storage
by Way of In-Store Transfer
A claimant may also qualify as an owner of grain in stor-
age if an in-store transfer has been completed in satisfaction
of a direct delivery obligation.46 The Grain Warehouse Act
provides that grain is considered “[d]irect delivery” if the grain
is “bought, sold, or transported in the name of a warehouse
licensee, other than grain that is received at the licensed ware-
house facilities.”47 Typically, when grain is direct delivered,
such grain falls under the Grain Dealer Act until such time as
a postdirect delivery storage position is created.48 However, “a
producer may . . . direct-deliver grain to a third-party ware-
house and, through an instore transfer, the warehouse licensee
or grain dealer can transfer title to warehouse-owned grain to
the producer, creating a postdirect delivery storage position in
the producer.”49
The warehouse licensee may incur a “[d]irect delivery
obligation” upon delivery of direct delivery grain.50 A direct
delivery obligation means “the obligation of a warehouse
licensee or grain dealer to transfer title to warehouse-owned
grain to a producer by an in-store transfer upon the delivery
of direct delivery grain.”51 Further, “[a] direct delivery obli-
gation is treated as a grain dealer obligation until such time
as it is satisfied by an in-store transfer.”52 However, if an
46
§ 88-526(2), (3), (7), and (8).
47
§ 88-526(2).
48
See § 75-905(2).
49
Mayfield v. Nebraska Pub. Serv. Comm., supra note 44, 2009 WL 5851467
at *3. See, also, § 88-526(2), (3), (7), and (8).
50
§ 88-526(3).
51
Id.
52
Id.
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in-store transfer occurs, a postdirect delivery storage position
occurs, and the producer or seller of grain acquires a position
of a storer or owner of grain in the grain warehouse.53
In-store transfers occur when “a warehouse licensee trans-
fers title to warehouse-owned grain to any person in satisfac-
tion of a direct delivery obligation between the warehouse
licensee or grain dealer and the producer, and the grain remains
in the warehouse.”54 The PSC’s regulations state that prima
facie evidence of an in-store transfer is an “In-Store Transfer
Notice” by the grain warehouse.55
(iii) Qualified Check Holders
Also statutorily entitled to protection under the Grain
Warehouse Act are those “qualified check holders” who hold
“a check for purchase of grain stored in such warehouse
which was issued by the warehouse licensee not more than
five business days prior to the cutoff date of operation of the
warehouse, which shall be the date the [PSC] officially closes
the warehouse.”56
The PSC interpreted all check holder claims under one
rationale. The PSC stated that “[g]enerally, the [Grain]
Warehouse Act is intended to provide protection for produc-
ers storing grain at the warehouse.” However, the PSC went
on to discuss grain storers’ responsibility to act as “prudent
and reasonable businesspeople and seek payment for sold
grain in a timely fashion.” The PSC then ruled that “[t]hose
claimants who sold stored grain prior to [the 5 days prior to
PEI’s official closing] are not valid owners, depositors, or
storers of grain or qualified check holders” and that thus,
they were not valid claimants under the Grain Warehouse Act.
(Emphasis supplied.)
53
§ 88-526(7).
54
Id.
55
291 Neb. Admin. Code, ch. 8, § 002.07I (2014).
56
§ 88-530.
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However, the PSC’s interpretation of § 88-530 is incorrect.
The plain language of the statute says that the check must
have been “issued by the warehouse licensee not more than
five business days prior to the cutoff date of operation of the
warehouse.”57 The plain language of the statute makes the
operative date for check holder claims the date the check was
issued. In contrast, the PSC analyzed the check holders’ claims
from the date their grain was sold and title transferred to PEI.
In order to determine which claims should have been granted
pursuant to the issuance of checks, we must first determine
what it means to “issue” a check in the context of the Grain
Warehouse Act.
Black’s Law Dictionary defines “issue” as “[t]o be put forth
officially” or “[t]o send out or distribute officially.”58 Under
Neb. Rev. Stat. U.C.C. § 3-105 (Reissue 2001), “issue” is
defined as “the first delivery of an instrument by the maker
or drawer, whether to a holder or nonholder, for the purpose
of giving rights on the instrument to any person.” “Delivery”
is defined in Neb. Rev. Stat. U.C.C. § 1-201(15) (Cum. Supp.
2014) as the “voluntary transfer of possession.” Black’s Law
Dictionary defines “delivery” as: “1. The formal act of volun-
tarily transferring something; esp., the act of bringing goods,
letters, etc. to a particular person or place. 2. The thing or
things so brought and transferred.”59
[19] Accordingly, issuance of a check does not occur when
the sale of grain occurs. Nor should the issuance of a check be
defined as the date the check was written. Instead, issuance is
the date that a check is first delivered by the maker or drawer,
in this case, PEI.
57
Id. (emphasis supplied).
58
Black’s Law Dictionary 960 (10th ed. 2014).
59
Id. at 521.
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(c) Qualifications for Recovery
Under Grain Dealer Act
A claimant who can qualify for recovery under the Grain
Dealer Act must (1) be a producer or owner within Nebraska
who has “a valid claim arising from a sale to or purchase
from a grain dealer” and (2) takes action to recover pay-
ment for grain “within thirty days” of shipment, issuance of
negotiable instrument, or any apparent loss to be covered
under the terms of the grain dealer’s security.60 Therefore, the
operative date under the Grain Dealer Act is 30 days from
the time that the individual or entity last had contact with the
grain dealer.
[20,21] Cross-appellants Donnelly Trust, Raabe, TTK, and
Gansebom were classified as grain dealers by the PSC and
denied recovery because their grain was not delivered within
30 days prior to the closure of the warehouse. These four
cross-appellants assigned as error the denial of their recov-
ery in general, but they did not specifically argue that they
were erroneously denied recovery under the Grain Dealer Act,
but instead merely argued that they were erroneously denied
recovery under the Grain Warehouse Act. To be considered by
an appellate court, an error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error.61 Errors that are assigned but not argued will not be
addressed by an appellate court.62 Because Donnelly Trust,
Raabe, TTK, and Gansebom do not argue that the PSC erred in
finding that their dealer claims were time barred, we will not
address this issue.
60
See §§ 75-903(4) and 75-905 (emphasis supplied).
61
Obad v. State, 277 Neb. 866, 766 N.W.2d 89 (2009).
62
Epp v. Lauby, 271 Neb. 640, 715 N.W.2d 501 (2006); Borley Storage &
Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71 (2006); Genthon v.
Kratville, 270 Neb. 74, 701 N.W.2d 334 (2005).
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(d) Application of Grain Warehouse Act
and Grain Dealer Act to
Individual Claimants
(i) Christensen’s Delayed-Price
Contract Is Valid Contract
Appellant Christensen argues that the contract he signed was
never validly formed because it lacked the requisite “meeting
of the minds” or mutual intent, and the price term was not
fixed in the contract. The PSC found the plain terms of the
contract stated that title to Christensen’s grain in storage had
transferred to PEI upon the signing of the contract.
[22-28] The parol evidence rule renders ineffective proof of
a prior or contemporaneous oral agreement that alters, varies,
or contradicts the terms of a written agreement.63 The parol
evidence rule is designed to preserve the integrity and certainty
of written documents against disputes arising from fraudulent
claims or faulty recollections of the parties’ intent as expressed
in the final writing.64 “Extrinsic evidence is not permitted to
explain the terms of a contract that is not ambiguous.”65 A
determination as to whether an ambiguity exists is made as a
matter of law and on an objective basis, not by the subjective
contentions of the parties.66 A contract is ambiguous when a
word, phrase, or provision in the contract has, or is susceptible
of, at least two reasonable but conflicting interpretations or
meanings.67 “When a contract is unambiguous, the intentions
of the parties must be determined from the contract itself.”68
63
Sack Bros. v. Tri-Valley Co-op, 260 Neb. 312, 616 N.W.2d 786 (2000).
64
Traudt v. Nebraska P. P. Dist., 197 Neb. 765, 251 N.W.2d 148 (1977).
65
Spanish Oaks v. Hy-Vee, 265 Neb. 133, 147, 655 N.W.2d 390, 403 (2003).
66
Sack Bros. v. Tri-Valley Co-op, supra note 63.
67
Davenport Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780
N.W.2d 416 (2010).
68
Spanish Oaks v. Hy-Vee, supra note 65, 265 Neb. at 147, 655 N.W.2d at
403.
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Testimony seeking to prove the parties’ intent is considered
parol evidence.69
[29] Further, an argument that the claimant did not read or
understand the document he or she was signing is no defense
to the formation of a contract.
[C]ourts will not permit a party to avoid a contract into
which that party has entered on the grounds that he or she
did not attend to its terms, that he or she did not read the
document which was signed and supposed it was different
from its terms, or that it was a mere form.70
In In re Claims Against Atlanta Elev., Inc.,71 the claimants
argued that they did not understand the terms of the contracts
and that notwithstanding the terms of the contracts, they did
not intend to sell grain to the elevator. The claimants also
argued that because the priced-to-arrive contracts did not con-
tain a specified price, the contracts were incomplete and there-
fore unenforceable.72 We refused to allow the parties to avoid
their contracts on the grounds that they did not understand or
read the contracts’ terms or assumed the contracts said some-
thing different from their terms.73
Also, Neb. Rev. Stat. U.C.C. § 2-204(3) (Reissue 2001)
provides that “[e]ven though one or more terms are left open
a contract for sale does not fail for indefiniteness . . . .” With
regard to an open price term, Neb. Rev. Stat. U.C.C. § 2-305(1)
(Reissue 2001) provides that parties “can conclude a contract
for sale even though the price is not settled. In such a case
the price is a reasonable price at the time for delivery if . . .
69
See, e.g., Gibbons Ranches v. Bailey, 289 Neb. 949, 857 N.W.2d 808
(2015); Podraza v. New Century Physicians of Neb., 280 Neb. 678, 789
N.W.2d 260 (2010); Sack Bros. v. Tri-Valley Co-op, supra note 63.
70
In re Claims Against Atlanta Elev., Inc., supra note 40, 268 Neb. at 617,
685 N.W.2d at 493.
71
In re Claims Against Atlanta Elev., Inc., supra note 40.
72
Id.
73
Id.
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(a) nothing is said as to price.” Again, in In re Claims Against
Atlanta Elev., Inc., we found that even though the contracts
did not contain a price term, the contracts were still enforce-
able, and that thus, title to the claimants’ grain in storage
passed and they could no longer make claims under the Grain
Warehouse Act.74
The delayed-price contract Christensen signed is not ambig-
uous. The language plainly and clearly states that title transfers
to PEI at the time the document is executed. The contract was
signed and executed by both Christensen and PEI. Because we
look only at evidence of the parties’ intent when the contract is
otherwise ambiguous—and this contract is unambiguous—we
must follow the plain terms of the contract. Testimony as to
the intent of both parties is inadmissible in this case. Finally,
as we have previously established, the fact that Christensen
did not read or have knowledge of what he was signing is no
defense. The fact that the price term was not supplied is not
determinative in priced-later or delayed-price contracts and
does not make the contract unenforceable under §§ 2-204(3)
and 2-305(1).
We affirm the determination of the PSC that Christensen did
not hold title to grain in storage at the time of the closure of
the warehouse.
(ii) Herians’ Potential Status as
Owners of Grain in Storage
Via In-Store Transfer
The PSC found that an in-store transfer was not executed
in favor of the Herians. The PSC stated that “only upon the
execution of an in-store transfer will an ownership interest in
grain stored in a warehouse arise for a producer that direct
delivered grain. Absent such a document, direct delivered
grain will never result in an ownership position in grain stored
in the elevator.” The Herians argue that a document provid-
ing formal notice of an in-store transfer is merely prima facie
74
Id.
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evidence of an in-store transfer, but not determinative of
whether an in-store transfer occurred. We agree.
In this case, there is no question that the Herians’ grain was
direct delivered to other licensed public grain warehouses.
When PEI took possession of the Herians’ grain and delivered
it to third-party grain terminals rather than PEI’s warehouse,
the Herians’ grain became direct delivery grain. According to
§ 88-526(3), this direct delivery should have created a “direct
delivery obligation” on the part of PEI. This obligation is
treated as a dealer obligation (and thus as a dealer claim) until
such time as it is satisfied by an in-store transfer. Therefore,
if the obligation was satisfied by an in-store transfer, then the
Herians can be considered owners of grain in storage at the
time PEI closed.
PEI did not issue a formal notice of an in-store transfer. The
PSC treated the nonexistence of a formal and executed in-store
transfer notice as determinative of whether an in-store transfer
occurred. The PSC said that “[a]bsent such a document, direct
delivered grain will never result in an ownership position in
grain stored in the elevator.” This is incorrect.
[30,31] Though notice of an in-store transfer is considered
prima facie evidence that an in-store transfer occurred, it is
not the only evidence that can establish the occurrence of an
in-store transfer. Prima facie proof is evidence sufficient to
submit an issue to the fact finder and precludes a directed
verdict on the issue.75 Black’s Law Dictionary defines “prima
facie evidence” as “[e]vidence that will establish a fact or sus-
tain a judgment unless contradictory evidence is produced.”76
However, although the statutes and regulations prescribe one
form of evidence to establish a prima facie case that an in-store
transfer occurred, other forms of evidence may also provide
proof. A claimant may produce other forms of evidence that an
in-store transfer occurred.
75
See, Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910
(1990); State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).
76
Black’s Law Dictionary, supra note 58 at 677.
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Title to grain, or “goods” within the meaning of the Uniform
Commercial Code, passes in any manner agreed to by the
parties.77 Therefore, without any legislation to the contrary, an
in-store transfer may still be accomplished, even though the
grain warehouse did not create a written notice, as it is com-
manded by statute. Also, while PEI certainly should have issued
a notice of in-store transfer, the failure to issue that notice does
not defeat the case that an in-store transfer occurred.
We find significant the fact that when the Herians chose
to sell grain from “open storage” in January 2014, they were
allowed to do so. Had PEI not completed an in-store trans-
fer of the grain delivered in 2013, and given the Herians a
postdirect delivery storage position, it is inexplicable why
the Herians would not have been able to sell grain from open
storage in January 2014. Though a representative of PEI
explained that an indication of “open storage” on a settlement
sheet is the default setting on all transactions, there is no
reason why PEI would allow the Herians to “sell” 9,801.428
bushels, pay the Herians for such sale, and show in the records
27,742.05 remaining bushels in the Herians’ name. There is
also no explanation by PEI of this particular transaction or
whether the “open storage” indication on the settlement sheet
was indicative of the Herians’ grain’s position in this particu-
lar case.
As further support for its finding that no in-store transfer
occurred, the PSC reiterated evidence that the Herians’ grain
was direct delivered to third-party terminals. The direct deliv-
ery of grain to third-party terminals does not defeat the claim
of an in-store transfer. In fact, a direct delivery is the very
thing that gives rise to an in-store transfer under § 88-526(7).
Acknowledging that the lack of an in-store transfer notice
does not defeat the existence of an in-store transfer, and
because the Herians produced other strong indicators that
an in-store transfer occurred and that they had a postdirect
77
See Neb. Rev. Stat. U.C.C. § 2-401 (Cum. Supp. 2014).
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delivery storage status, we find that the Herians may recover
under the Grain Warehouse Act as owners of grain in storage
for their remaining bushels.
(iii) Qualified Check Holder Claims
As an opening matter, the cutoff date according to statute
is “five business days” before the PSC officially closes the
warehouse.78 The official closure date is the date that the PSC
entered an order closing the warehouse, which was March 5,
2014. Five business days prior to the closure of the warehouse
is Wednesday, February 26. Therefore, those who were holders
of checks that were issued by PEI between February 26 and
March 5 will qualify as check holders under § 88-530.
a. Raabe Is Qualified Check Holder
Under Grain Warehouse Act
PEI issued check No. 42900 to Raabe in the amount of
$88,510.54 when PEI took the affirmative action of transfer-
ring possession of the check to Raabe on February 28, 2014.
PEI’s purpose in delivering the check was to create rights on
the instrument in Raabe.
The closure of PEI’s grain warehouse occurred on March
5, 2014. The statute allows recovery to all those holders of
checks issued within 5 business days of the closure. When
Raabe took delivery of the check on February 28, and became
holder of the check on that date, he met the requirement of
§ 88-530. Thus, Raabe is entitled to recovery under the Grain
Warehouse Act as a holder of check No. 42900 in the amount
of $88,510.54.
b. Donnelly Trust, TTK, and Gansebom
Are Not Qualified Check Holders
Under Grain Warehouse Act
Checks Nos. 43095, 43081, and 43080 to Donnelly Trust,
check No. 43083 to TTK, and check No. 43157 to Gansebom
78
§ 88-530 (emphasis supplied).
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were written, dated, and signed by PEI, but left undelivered in
PEI’s office at the time that PEI surrendered its license and the
PSC took control of PEI.
Because the checks had yet to be delivered, PEI had not
yet issued them. The delivery of the checks involves an
affirmative action; and in this case, PEI took no action to
deliver these checks to anyone. The cross-appellants argue
that delivery occurred when PEI surrendered the warehouse
to the PSC or when the PSC took control of PEI. However,
in surrendering its business license to the PSC, PEI was
taking no formal action regarding the checks specifically.
The checks that remained in PEI’s office or safe were never
formally acted on, or delivered, and therefore, the checks
that remained in PEI’s office at the time of its closure were
never issued.
Therefore, checks Nos. 43095, 43081, and 43080 to Donnelly
Trust, check No. 43083 to TTK, and check No. 43157 to
Gansebom were never issued and Donnelly Trust, TTK, and
Gansebom do not qualify as check holders. As such, the PSC
was correct to deny these three cross-appellants recovery under
the Grain Warehouse Act.
3. No Standing to Challenge Classification
of Uecker Transaction
Finally, cross-appellants Donnelly Trust, Raabe, TTK, and
Gansebom argue that Uecker’s transaction with PEI was a
loan, and not a sale or forward contract, and that as such, he
is not entitled to any recovery under the Grain Dealer Act.
The PSC argues that the cross-appellants do not have stand-
ing to contest the classification of the Uecker transaction
on appeal. We agree that Donnelly Trust, Raabe, TTK, and
Gansebom do not have standing to contest the classification of
the Uecker transaction.
[32-35] A party has standing to invoke a court’s jurisdic-
tion if it has a legal or equitable right, title, or interest in the
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subject matter of the controversy.79 As an aspect of jurisdic-
tion and justiciability, standing requires that a litigant have
such a personal stake in the outcome of a controversy as
to warrant invocation of a court’s jurisdiction and justify
the exercise of the court’s remedial powers on the litigants’
behalf.80 In order for a party to establish standing to bring
suit, it is necessary to show that the party is in danger of
sustaining a direct injury as a result of anticipated action,
and it is not sufficient that one has merely a general interest
common to all members of the public.81 If the party appealing
the issue lacks standing, the court is without jurisdiction to
decide the issues in the case.82
Though all of the cross-appellants challenging the classi-
fication of Uecker’s claim originally made claims as dealers,
those claims were denied, and those cross-appellants do not
argue on appeal that their grain dealer claim was improperly
denied. Since none of the cross-appellants who contest the
classification of this transaction are classified, or still stand to
be classified as “dealers” under the Grain Dealer Act, none of
them will receive a benefit from the grain dealer bond. Because
claims under the Grain Warehouse Act and Grain Dealer Act
seek recovery from two separate pots of money, one seeking an
interest in the warehouse recovery is not asserting an interest
in the dealer bond. Without an interest in the dealer bond, the
cross-appellants have no standing to challenge the distribution
of the dealer bond.
79
Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788
N.W.2d 252 (2010); In re Application of Metropolitan Util. Dist., 270 Neb.
494, 704 N.W.2d 237 (2005).
80
Chambers v. Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540 (2002).
81
Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009);
Neb. Against Exp. Gmblg. v. Neb. Horsemen’s Assn., 258 Neb. 690, 605
N.W.2d 803 (2000); Ritchhart v. Daub, 256 Neb. 801, 594 N.W.2d 288
(1999).
82
City of Omaha v. City of Elkhorn, 276 Neb. 70, 752 N.W.2d 137 (2008).
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Because these cross-appellants do not argue that the PSC
erred in denying their dealer claims, they cannot show any
injury or personal stake in that determination that would permit
them to contest the allowance of Uecker’s grain dealer claim.
These cross-appellants thus lack standing to contest the PSC’s
approval of Uecker’s claim under the Grain Dealer Act.
VI. CONCLUSION
We affirm the finding of the PSC that it did not have juris-
diction to determine the fraud claims of appellant Christensen
and of cross-appellants Gansebom and the Herians.
We affirm the finding of the PSC that appellant Christensen
and cross-appellants Donnelly Trust, TTK, and Gansebom are
not entitled to recovery under the Grain Warehouse Act.
We reverse the finding that cross-appellant Raabe is not a
qualified check holder and find that he is entitled to recovery
under the Grain Warehouse Act.
We reverse the finding that an in-store transfer did not
occur, creating a postdirect delivery storage position in cross-­
appellants the Herians and find that they are entitled to recov-
ery under the Grain Warehouse Act.
We find that cross-appellants Donnelly Trust, Raabe, TTK,
and Gansebom do not have standing to challenge the classifi-
cation of the Uecker transaction, and dismiss such claims.
A ffirmed in part, and in part
reversed and dismissed.
Wright and Miller-Lerman, JJ., not participating.