George Clift Enters. v. Oshkosh Feedyard Corp. ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/10/2020 04:09 PM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
George Clift Enterprises, Inc., a Texas corporation,
doing business as Eslabon Properties, appellant and
cross-appellee, v. Oshkosh Feedyard Corporation,
a Nebraska corporation, and Terry Jessen,
appellees and cross-appellants, and
Jeff Betley et al., appellees.
___ N.W.2d ___
Filed August 14, 2020. No. S-19-700.
1. Motions for Continuance: Appeal and Error. A trial court’s grant
or denial of a continuance is within the discretion of the trial court,
whose ruling will not be disturbed on appeal in the absence of an abuse
of discretion.
2. Attorney Fees: Appeal and Error. On appeal, an appellate court
will uphold a lower court’s decision allowing or disallowing attorney
fees for frivolous or bad faith litigation in the absence of an abuse
of discretion.
3. Moot Question: Justiciable Issues: Appeal and Error. Mootness is a
justiciability question that an appellate court determines as a matter of
law when it does not involve a factual dispute.
4. Pretrial Procedure. Generally, the control of discovery is a matter for
judicial discretion.
5. Summary Judgment: Motions for Continuance: Affidavits. Neb. Rev.
Stat. § 25-1335 (Reissue 2016) provides a safeguard against an improvi-
dent or premature grant of summary judgment.
6. ____: ____: ____. As a prerequisite for a continuance, additional time,
or other relief, a party is required to submit an affidavit stating a reason-
able excuse or good cause for the party’s inability to oppose a summary
judgment motion.
7. Summary Judgment: Motions for Continuance: Pretrial Procedure.
In ruling on a request for a continuance or additional time in which
to respond to a motion for summary judgment, a court may consider
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
whether the party has been dilatory in completing discovery and prepar-
ing for trial.
8. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
9. Brokers: Property: Contracts: Sales. A broker employed for a definite
time to effect a sale of property must perform whatever obligations the
contract imposes upon the broker within the time limited.
10. Brokers: Real Estate: Contracts: Sales. Ordinarily, a real estate bro-
ker who, for a commission, undertakes to sell land on certain terms and
within a specified period is not entitled to compensation for his or her
services unless he or she produces a purchaser within the time limit who
is ready, willing, and able to buy upon the terms prescribed.
11. Brokers: Contracts: Sales. The right to compensation based on the
broker’s production of a purchaser ready, willing, and able to buy upon
terms specified by the principal or satisfactory to him or her is not
impaired by the subsequent inability or unwillingness of the owner to
consummate the sale on the terms prescribed.
12. ____: ____: ____. In a listing agreement contemplating the negotiation
of terms, a commission is not earned by the broker until an agreement
upon the terms is reached between the buyer and seller.
13. Brokers: Property: Contracts: Sales. When the broker has failed to
perform the condition upon which he or she was to be paid, there is an
end to the contract; all contractual obligations of the owner toward the
broker are terminated and the parties stand as if a contract had never
been made; the market for the sale of the owner’s property is not cir-
cumscribed by the fact that some or all available purchasers have there-
tofore been approached by the broker.
14. Brokers: Contracts: Sales. Clauses in exclusive listing agreements set-
ting forth a protection, extension, or safety period after the listing period
are strictly construed as setting the limits of the time period in which a
sale must take place for a commission to be recoverable.
15. ____: ____: ____. Protection clauses are meant to protect a broker from
losing a commission earned during a listing period due to evasive con-
duct of the buyer and seller.
16. Contracts: Waiver: Proof. A written contract may be waived in whole
or in part, either directly or inferentially, and the waiver may be proved
by express declarations manifesting the intent not to claim the advan-
tage, or by so neglecting and failing to act as to induce the belief that it
was the intention to waive.
17. Breach of Contract: Damages: Proximate Cause: Proof. In any
damage action for breach of contract, the claimant must prove that
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
the breach of contract complained of was the proximate cause of the
alleged damages.
18. Breach of Contract: Damages. There must be a causal relationship
between the damages asserted and the breach of contract relied upon.
19. Judgments: Breach of Contract: Damages: Proof. Proof which leaves
the causal relationship between the damages asserted and the breach of
contract relied upon in the realm of speculation and conjecture is insuf-
ficient to support a judgment.
20. Conspiracy: Words and Phrases. A civil conspiracy is a combination
of two or more persons to accomplish by concerted action an unlaw-
ful or oppressive object, or a lawful object by unlawful or oppres-
sive means.
21. Conspiracy: Torts: Proof. A claim of civil conspiracy requires the
plaintiff to establish that the defendants had an expressed or implied
agreement to commit an unlawful or oppressive act that constitutes a tort
against the plaintiff.
22. Conspiracy: Damages. The gist of a civil conspiracy action is not the
conspiracy charged, but the damages the plaintiff claims to have suf-
fered due to the wrongful acts of the defendants.
23. Actions: Conspiracy. A civil conspiracy is actionable only if the alleged
conspirators actually committed some underlying misconduct.
24. Actions: Conspiracy: Torts. Without an underlying tort, there can be
no cause of action for a conspiracy to commit the tort.
25. Torts: Intent: Proof. To succeed on a claim for tortious interference
with a business relationship or expectancy, a plaintiff must prove (1) the
existence of a valid business relationship or expectancy, (2) knowledge
by the interferer of the relationship or expectancy, (3) an unjustified
intentional act of interference on the part of the interferer, (4) proof that
the interference caused the harm sustained, and (5) damage to the party
whose relationship or expectancy was disrupted.
26. ____: ____: ____. One of the basic elements of tortious interference
with a business relationship requires an intentional act that induces or
causes a breach or termination of the relationship or expectancy.
27. Brokers: Real Estate: Contracts: Sales. Real estate broker agreements,
like other contracts, contain an implied covenant of good faith pursuant
to which the seller impliedly covenants he or she will do nothing that
will have the effect of destroying or injuring the right of the broker to
earn a commission.
28. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
29. Actions: Attorney Fees: Words and Phrases. Frivolous for the pur-
poses of Neb. Rev. Stat. § 25-824 (Reissue 2016) is defined as being
a legal position wholly without merit, that is, without rational argu-
ment based on law and evidence to support a litigant’s position in
the lawsuit.
30. Words and Phrases. Frivolous connotes an improper motive or legal
position so wholly without merit as to be ridiculous.
31. Judgments: Claims: Words and Phrases. The determination of
whether a particular claim or defense is frivolous must depend upon the
facts of the particular case.
32. Moot Question. Mootness refers to events occurring after the filing of
a suit, which eradicate the requisite personal interest in the resolution of
the dispute that existed at the beginning of the litigation.
33. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
34. Attorney Fees: Appeal and Error. Allocation of amounts due between
offending parties and attorneys is “part and parcel” of the determination
of the amount of an award and is reviewed for an abuse of discretion.
Appeal from the District Court for Garden County: Derek
C. Weimer, Judge. Affirmed in part, and in part reversed and
remanded with directions.
James R. Korth, of Reynolds, Korth & Samuelson, P.C.,
L.L.O., for appellant.
Sterling T. Huff, P.C., L.L.O., for appellees Oshkosh
Feedyard Corporation and Terry Jessen.
David W. Pederson, of Pederson Law Office, for appellees
Jeff Betley et al.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. NATURE OF CASE
A real estate agency appeals from an order of summary
judgment against it in an action brought against the seller
and buyers for the alleged breach of an exclusive listing
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
agreement and tortious interference with a contract, business
relationship, or expectation. The sale at issue occurred both
after the listing period and after the protection period of the
agreement, and no commission was paid. All negotiations for
the sale were conducted directly between the seller and buyers
with the real estate agent’s knowledge, and the defendants all
denied any bad faith attempt to delay reaching an agreement or
consummating the sale until after expiration of the exclusive
listing agreement. On appeal, the real estate agency argues
that the summary judgment hearing, held approximately 18
months after the action was filed, was premature because the
agency had not yet conducted depositions. It also contests the
court’s determination that attorney fees were appropriate on
the ground that the action was frivolous.
II. BACKGROUND
This action involves the sale of a feedyard formerly owned by
Oshkosh Feedyard Corporation (Oshkosh Feedyard). Oshkosh
Feedyard is owned 100 percent by the Jessen Family Limited
Partnership. The Jessen Family Limited Partnership has three
general partners, Terry Jessen (Jessen), Gwen Jessen, and
Joni Cowan. Summer Parker and Mariah Preistle are ­limited
partners. Jessen is the president of Oshkosh Feedyard and the
managing partner of the Jessen Family Limited Partnership.
On July 15, 2013, Jessen, on behalf of Oshkosh Feedyard,
entered into an exclusive listing agreement with George Clift
Enterprises (GCE), through GCE’s agent, Richard Bretz, for
the sale of Oshkosh Feedyard.
1. Exclusive Listing Agreement
Under the agreement, the listing price was $4.5 million. The
agreement was to be in effect for a period of time beginning on
the effective date of the contract and continuing uninterrupted
for 12 months. The agreement provided for both a “listing fee”
and a “[b]rokerage [f]ee.”
The listing fee was $4,000 payable immediately upon execu-
tion of the agreement, and there is no dispute that it was paid.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
The brokerage fee was 4.5 percent of the sales price to
be earned and was payable when the following conditions
were met:
1. The sale of the property closes.
2. Owner defaults after Broker produces a ready, will-
ing and able buyer agreeable to Owner’s price and terms
as stated herein or after signing by Owner and Buyer any
letter, memorandum, or contract that contains agreements
to convey the Property. The sale price under this clause
shall be the lesser of the listing price or the sale price
stated in any signed documents.
3. Buyer defaults and Owner retains any earnest money.
The commission fee shall be calculated on the amount of
earnest money received by the Owner.
The agreement also contained a protection period clause
as follows:
PROTECTION PERIOD: Owner agrees to pay the
Brokerage Fee under the same terms and conditions spec-
ified above if, within two months after termination of this
agreement, the Property should be under contract, sold,
transferred, exchanged or conveyed to: (1) any person(s)
or entity to whom Broker submitted the Property and
of whom Owner had actual knowledge and/or (2) any
person(s) or entity to whom Broker submitted the Property
and whose name shall be included on a list delivered to
Owner by Broker within thirty (30) days after termina-
tion hereof or (3) any person(s) or entity who contacted
Owner concerning the sale of the Property or to whom
Owner submitted the Property for sale during the term
hereof and whose name Owner either refused or failed
to refer to Broker. Owner agrees to refer all prospective
buyers to Broker and agrees not to negotiate with such
prospective buyers.
A confidentiality provision stated, “Broker will perform its
consulting role in a non-confidential manner, but will enter
into a valid Confidentiality Agreement with interested parties
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
prior to distributing financial or other proprietary information
provided by Owner.” The agreement was “the entire agreement
of the Parties regarding the Property and may not be changed
except by written agreement signed by the Parties.”
2. Purchasers
In early 2014, Jeff Betley, Marc Braun, and Bill Matzke, all
Wisconsin residents, discussed their mutual interest in purchas-
ing a feedyard in the Kansas, Nebraska, or Colorado region. In
April 2014, Betley contacted Bretz, informing him that Betley,
Braun, and Matzke were looking for a feedyard for their
dairy heifers.
Meanwhile, Jessen had become discontented with Bretz’
efforts at selling Oshkosh Feedyard. Bretz suggested to Betley
several different feedyards that were for sale. Bretz mentioned
Oshkosh Feedyard, but did not recommend it.
At the same time, a friend of Matzke’s recommended
Oshkosh Feedyard and told him to contact Jessen if he was
interested. Matzke did so, and Jessen gave Betley, Braun, and
Matzke a tour of the feedyard in May 2014. But Betley, Braun,
and Matzke were clear that they were just getting started look-
ing at different feedyards and were not yet in a position to
make an offer. According to Jessen’s uncontested averment,
Jessen advised Bretz that he was communicating with Betley,
Braun, and Matzke regarding a possible sale, and Bretz raised
no objection.
In June 2014, Bretz was in contact with Braun by email,
recommending a Kansas feedyard for them. In the email, Bretz
also stated:
Regarding the Oshkosh yard, there is nothing that
would help more in resolving the owner’s and my chal-
lenge over the exclusive listing than getting the yard sold.
Please continue forward on that project as long as it is
viable to you. The owner and I will deal with the list-
ing agreement.
Braun averred, “Bretz went on to tell me that Betley,
Matzke and I should continue our discussions about the sale
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
of . . . Oshkosh Feedyard with Jessen, and that Bretz and
Jessen would work things out.” No evidence was submitted
disputing this statement.
Sometime in the summer of 2014, Betley, Braun, and
Matzke decided to try to purchase Oshkosh Feedyard. They
negotiated with Jessen and eventually formed Oshkosh Heifer
Development LLC, with Jessen as a member, on August 12
for that purpose. After further negotiations, Oshkosh Heifer
Development finalized a purchase agreement with Oshkosh
Feedyard in December. It was not until December 12 that
Oshkosh Heifer Development had adopted a corporate reso-
lution authorizing Braun to execute the purchase agreement,
promissory note, and deed of trust on its behalf for the pur-
chase of Oshkosh Feedyard.
The listing period of the exclusive listing agreement had
expired on July 15, 2014, and the protection period had expired
on September 15.
3. 2014 Action
On August 18, 2014, GCE filed a complaint against Oshkosh
Feedyard alleging that Oshkosh Feedyard had breached the
listing agreement by not referring to GCE “one or more
prospective buyer(s)” with whom Oshkosh Feedyard or its
agents had contact and by “engaging in negotiation with any
prospective buyer(s).” As damages for GCE’s lost opportunity
to contact such prospective buyers and negotiate with such
prospective buyers, GCE sought the amount of a $202,500
commission, based on the list price, plus $20,000 allegedly
expended by GCE in efforts to market the property. On July
17, 2017, the court dismissed the action without prejudice for
lack of prosecution. The court noted that nothing had been
filed with the court since December 2014 to indicate the matter
was being actively pursued and that responses to discovery had
been delayed for an extended period of time. The court elabo-
rated that although GCE had engaged new counsel in the 2014
action, it still had not moved appreciably forward.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
4. September 2017 Complaint
On September 7, 2017, GCE filed a new complaint against
Oshkosh Feedyard, Jessen, Betley, Braun, Matzke, and Oshkosh
Heifer Development, alleging that pursuant to the terms of the
exclusive listing agreement with Oshkosh Feedyard, it was
entitled to a reasonable brokerage fee on the sale of the prop-
erty. GCE alleged it had made a reasonable effort to market
and procure a buyer for Oshkosh Feedyard. GCE alleged that
Betley, Braun, and Matzke had sought information from GCE
about Oshkosh Feedyard on or around April 29, 2014.
In its first cause of action, GCE alleged that Jessen, on
behalf of Oshkosh Feedyard, breached the exclusive listing
agreement by negotiating with and failing to refer to GCE
prospective buyers during the period of the agreement, thereby
causing GCE to lose the opportunity to contact and negotiate
with prospective buyers. As in the prior 2014 action that was
dismissed for lack of prosecution, GCE sought damages in
the amount of $202,500, representing 4.5 percent of the list
price of $4.5 million, plus $20,000 in expenses in advertising
the listing.
In its second cause of action, GCE alleged a claim of
tortious interference with a contract, business relationship, or
expectation. In this regard, GCE alleged that all the defendants
were aware of the exclusive listing agreement; that despite
such knowledge, Betley, Braun, and Matzke contacted Jessen
directly about purchasing Oshkosh Feedyard; and that Jessen
failed to refer them to GCE. GCE alleged that Jessen, Betley,
Braun, and Matzke improperly and unjustly colluded to arrange
terms of a sale that deprived GCE of the brokerage fee owed to
it under the exclusive listing agreement. GCE claimed the same
amount of damages.
5. February 2018 Amended Complaint
On February 9, 2018, the court granted a motion by GCE’s
attorney to withdraw on the grounds that GCE had terminated
representation by him and that GCE had found new counsel.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
On February 28, 2018, GCE filed an amended complaint,
setting forth in essence the same two causes of action. In the
first cause of action, GCE alleged that Jessen and Oshkosh
Feedyard breached the provisions of the exclusive listing
agreement by (1) negotiating with prospective buyers and (2)
failing to submit Betley, Braun, and Matzke to GCE as pro-
spective buyers.
In the second cause of action, GCE alleged that the
defend­ants all engaged in a conspiracy to tortiously inter-
fere with GCE’s contract, business relationship, or expecta-
tion. Specifically, GCE alleged Betley, Braun, and Matzke
conspired with Jessen to “arrange terms of a sale which
deprived Plaintiff of the Brokerage Fee owed to Plaintiff
under the Exclusive Listing Agreement.” The factual allega-
tions of the amended complaint were similar to those of the
original complaint, but GCE added the allegation that there
was an in-person meeting between Jessen and Betley, Braun,
and Matzke in March 2014, within the 12-month exclusivity
period, to discuss the sale of Oshkosh Feedyard. GCE further
alleged that Betley, Braun, and Matzke had begun placing
their heifers in and operating Oshkosh Feedyard as early
as August 2014, during the protection period. GCE sought
$198,500 as damages, calculated as 4.5 percent of the alleged
sale price of $4.5 million, less the $4,000 listing fee paid by
Oshkosh Feedyard.
In their answers, the defendants denied the operative alle-
gations of the amended complaint. They alleged that during
the listing period, GCE knew of Betley, Braun, and Matzke’s
interest in the property and had discussions with them, and that
thus, GCE could not be damaged by any lack of referral. The
defendants alleged that at no time did GCE produce a buyer
who was ready, able, and willing to consummate the purchase
based on the terms of the listing agreement. Further, the
property was not sold within the 2-month protection period.
Betley, Braun, and Matzke alleged that Bretz, on behalf of
GCE, had consented to and encouraged their discussions
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
with Jessen. All the defendants affirmatively alleged that the
causes of action were frivolous and brought in bad faith.
6. Discovery
Discovery disputes arose between the parties. Jessen and
Oshkosh Feedyard had answered, partially answered, or agreed
to provide at a later date answers to the majority of the first set
of interrogatories and had provided or promised to supplement
answers for the majority of the first requests for production of
documents. But in March 2018, GCE moved to compel Jessen
and Oshkosh Feedyard to supplement their answers to GCE’s
requests for admissions and interrogatories and its first set of
requests for production of documents. Jessen and Oshkosh
Feedyard had objected to all of the requests for admissions
as vague, ambiguous, and irrelevant, noting that they could
not answer any requests based upon the exclusive listing
agreement when that agreement was not attached. The court
sustained Jessen and Oshkosh Feedyard’s objections to the
requests for admissions but sustained in part GCE’s motion
to compel.
On May 14, 2018, GCE was still unable to identify in
response to Jessen and Oshkosh Feedyard’s requests for pro-
duction of documents any document GCE intended to offer
as evidence at trial or summary judgment. GCE stated it had
“made no determination of what evidence will be offered” and
would “supplement in accordance with the applicable state and
local rules of discovery.”
Certain supplemental answers were served on GCE in May
2018, but, on that same date, Jessen and Oshkosh Feedyard
moved for a protection order in relation to one of the inter-
rogatories, in order to protect proprietary information related
to Oshkosh Feedyard’s business practices, fees, and custom-
ers. GCE filed a motion to compel. The court resolved this
dispute after approving a joint stipulation for a protective order
in August 2018, and GCE eventually withdrew its motion
to compel.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
In September 2018, Jessen and Oshkosh Feedyard moved
the court to compel GCE to answer discovery, which motion
the court later denied on the ground that it referred to the first
complaint that was no longer operative. In October 2018, GCE
moved for an order compelling Jessen and Oshkosh Feedyard
to fully answer its second sets of written interrogatories and
requests for production of documents and its third sets of
requests for admissions and written interrogatories. GCE also
requested sanctions. The court overruled Jessen and Oshkosh
Feedyard’s objections and required Jessen and Oshkosh
Feedyard to answer GCE’s second, third, and fourth sets of
interrogatories, but it denied GCE’s request for sanctions.
In December 2018, GCE asked for leave to issue a sub-
poena on a third party, Settje Agri Services & Engineering,
Inc., seeking any and all documents pertaining to services
rendered during 2014 to Oshkosh Feedyard, Jessen, Betley,
Braun, Matzke, or Oshkosh Heifer Development. Jessen and
Oshkosh Feedyard objected on the grounds that the infor-
mation that would include feedyard design would furnish
information to a competitor and was irrelevant to the alleged
breach of the listing agreement. The court granted Jessen and
Oshkosh Feedyard’s motion for a protective order to the extent
the communications requested were proprietary or protected
by privilege.
On January 4, 2019, and again on February 27, GCE moved
for an order to compel Betley, Braun, Matzke, and Oshkosh
Heifer Development to fully answer its second sets of interrog-
atories and requests for production of documents, which had
been sent in October 2018. While answers and responses had
been served on GCE in January 2019, GCE asserted that two of
the answers and responses were only partially responsive. The
February 2019 motion was overruled in March.
7. Motion to Disqualify
Jessen and Oshkosh Feedyard had moved to disqualify
GCE’s attorneys in April 2018. The motion was based on the
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306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
fact that attorneys from the same law firm were represent-
ing Parker, Preistle, Gwen Jessen, the Jessen Family Limited
Partnership, and Oshkosh Feedyard in a separate action against
Jessen for self-dealing and other alleged breaches of his fidu-
ciary duties. Oshkosh Feedyard, represented by Jessen and the
attorneys in the action brought by GCE, alleged that GCE’s
attorneys had a conflict of interest. GCE alleged that Oshkosh
Feedyard, through Jessen, lacked standing to raise any such
conflict of interest.
Following an evidentiary hearing, the court denied the
motion to disqualify. The court concluded that Jessen, as a
general partner in the Jessen Family Limited Partnership, had
standing to raise a concern on behalf of Oshkosh Feedyard per-
taining to counsel’s conflict of interest in representing Oshkosh
Feedyard as a plaintiff in one action while suing Oshkosh
Feedyard as a defendant in another action. But the court found
there was no apparent conflict of interest, because if the plain-
tiffs are unsuccessful in either action, then Oshkosh Feedyard
would suffer no loss.
8. Motion for Summary Judgment
and Motion for Continuance of
Summary Judgment Hearing
In two separate motions, the defendants moved, on January
15, 2019, for summary judgment. Thereafter, on January 28,
2019, GCE filed, for the first time, notices of depositions of
Jessen, Betley, Braun, and two other individuals, to take place
the end of May.
On March 1, 2019, GCE filed an opposition to the motions
for summary judgment by the defendants or, in the alterna-
tive, a motion for a continuance of the summary judgment
hearing. In its motion, GCE noted that “while written discov-
ery in this case is substantially completed, there are still mat-
ters of written discovery which are incomplete,” such as the
documents GCE expected to receive from Settje Agri Services
& Engineering. GCE also pointed out that depositions had
not yet been conducted, asserting that the depositions were
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.
Cite as 306 Neb. 775
“absolutely essential, especially those of the Defendants.”
GCE asserted that depositions would afford GCE the best
mechanism for exploring communications between the
defend­ants pertaining to their plans and activities to purchase
Oshkosh Feedyard during the listing or protection period of
the exclusive agency agreement. GCE indicated that the delay
in discovery had been due to disputes between the parties
through which GCE had “been forced to file five motions
to compel.”
On March 19, 2019, the court heard the defendants’ motions
for summary judgment and took the matter under advisement.
Following the hearing, the defendants moved for a protec-
tive order against the pending depositions for several reasons,
including that the depositions would become moot if the court
ruled in their favor on their motions for summary judgment.
At the summary judgment hearing, the defendants submitted
affidavits as well as documentary evidence that they believed
demonstrated a lack of any material issue of fact.
(a) Correspondence
Correspondence admitted at the summary judgment hearing
demonstrated that Betley reached out to Bretz sometime before
April 29, 2014, expressing an interest in purchasing a feed-
yard somewhere in the United States for heifers coming from
Wisconsin and Michigan. Betley described that “[w]e should
be in the 15,000 to 20,000 head range based on dairy heifer
bunk space requirements” and that “If yard is smaller expan-
sion should be a possibility.”
Later that day, Betley requested from Bretz more informa-
tion on a feedyard in Texas. In the evening of April 29, 2019,
Bretz sent to Betley the book for the feedyard in Texas. Bretz
asked Betley for more information in order to “put together a
list of properties that might fit.” According to Bretz, if heifers
were coming from Wisconsin, “a Kansas or Nebraska yard may
make more sense.”
Around the same time, on April 22, 2014, there was cor-
respondence between Dallas Kime and Matzke in which Kime
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sent Matzke information about Oshkosh Feedyard as a pros-
pect and told Matzke to contact Jessen if he was interested.
An email on April 23 reflects that Matzke contacted Jessen by
telephone that day and that Matzke was interested in seeing
the property.
On April 29, 2014, Jessen emailed Matzke telling him he
had a verbal purchase offer on Oshkosh Feedyard, explaining,
“Obviously I want to wait for you IF that might lead to a better
offer to me, but likewise I don’t want this offer to go away and
no offer to be made by your group.”
On May 1, 2014, Matzke responded to Jessen, thanking him
for letting him know about the status of Oshkosh Feedyard but
explaining, “We are just starting to explore our options after
spending 2 years discussing this project.” Matzke stated, “We
are not in any position at this time to make any offers,” as well
as that Jessen should not hold off on accepting other offers he
might receive.
However, Matzke offered to come look at Oshkosh Feedyard
on May 3, 2014, since he was going to be in western Kansas
that week looking at cattle. Subsequent correspondence reflects
that Matzke and Jessen arranged for Jessen to show Oshkosh
Feedyard to Matzke on May 10.
On May 10, 2014, Bretz wrote an email to Betley, apologiz-
ing for a “slow response.” The email then proceeded to refer
to several feedyards, other than Oshkosh Feedyard, which
Bretz proposed would be “a fit.” Bretz also attached the book
on Oshkosh Feedyard, but “more to provoke thought than an
outright suggestion.” Bretz described Oshkosh Feedyard as “an
older yard with a small feedmill [that] would be at the small
end to handle the number of heifers you will grow.”
In an email from Jessen to Betley and Braun on May 12,
2014, Jessen expressed that he enjoyed their visit and thanked
Betley and Braun for “taking the time to look and consider.”
Jessen stated further:
Please contact me with your questions as they come
up. I was at the lot tonight for another showing. I feel that
the time is right & a buyer will come forward. If the lot
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is right for you, please let me know your thoughts. I feel
that your group would be good for Oshkosh Nebraska !
On June 20, 2014, Bretz emailed Braun. Bretz thanked
Braun for signing a confidentiality agreement. Most of the
email discussed a particular feedyard in Kansas, Pawnee Valley
Feeders, as a good option for Betley, Braun, and Matzke’s
needs, as well as two other feedyards in Kansas that might
be a good fit but which Bretz would not be able to look at
personally until July 7. Bretz closed the email with a note on
Oshkosh Feedyard:
Regarding the Oshkosh yard, there is nothing that
would help more in resolving the owner’s and my chal-
lenge over the exclusive listing than getting the yard sold.
Please continue forward on that project as long as it is
viable to you. The owner and I will deal with the list-
ing agreement.
Correspondence from Braun to Betley and Matzke on that
same date appears to indicate that Braun was interested in
the Pawnee Valley Feeders yard. Braun attached the book
for Pawnee Valley Feeders in an email that said, “I signed a
confi[dentiality] agreement and he stressed the importance of
not discussing with anyone. Bill can you do some homework
on the feed availability in this area? The lot looks awesome.”
(b) Matzke’s Affidavit
Matzke in his affidavit averred that he had never heard of
Jessen or Oshkosh Feedyard until sometime around April 22,
2014, when a friend, Kime, advised him that Oshkosh Feedyard
was for sale and he contacted Jessen. On April 29, Jessen
advised that he had another offer on the property. Betley,
Braun, and Matzke visited the property on May 10. Matzke
was aware that Betley was in contact with Bretz on their behalf
regarding feedyards for sale as early as April 29.
In June 2014, Betley, Braun, and Matzke were still look-
ing at various feedyards. Matzke averred that while they
had signed confidentiality agreements related to several feed-
yards that they were considering, they had not signed any
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such agree­ment with Bretz, Jessen, or anyone else regarding
Oshkosh Feedyard.
Matzke received a forwarded email on June 20, 2014,
that Braun had received from Bretz. Matzke understood that
GCE and Bretz had given him, Betley, and Braun consent to
visit directly with Jessen in an attempt to purchase Oshkosh
Feedyard. Matzke averred that he was unaware of any listing
agreement between Bretz and Oshkosh Feedyard until June 20.
He did not see a copy of the agreement until the lawsuit was
filed 3 years later.
Matzke averred that sometime in the summer of 2014,
Betley, Braun, and Matzke decided to try to purchase Oshkosh
Feedyard and, in the course of discussions, came to an agree-
ment to form a limited liability company that would include
Jessen “to share the potential financial obligations and provide
us with a local contact through Jessen for operational pur-
poses.” Thus, Oshkosh Heifer Development was formed on
August 12. Matzke averred that Oshkosh Heifer Development
did not finalize an agreement to purchase Oshkosh Feedyard
until December.
Matzke averred that he had never spoken with Jessen about
delaying the purchase or trying to deprive GCE of a commission
and that he lacked any intent to damage GCE. Matzke averred
that he, Betley, Braun, and Oshkosh Heifer Development had
incurred legal fees and expenses of $14,877.50 in defending
the lawsuit against them.
(c) Braun’s Affidavit
Braun’s affidavit mirrored Matzke’s. He averred that he
had never heard of Jessen or Oshkosh Feedyard until Matzke
advised him in early 2014 that Oshkosh Feedyard was for sale.
He was aware that Betley was in contact with Bretz on his,
Betley’s, and Matzke’s behalf regarding feedyards for sale as
early as April 29. In June, he, Betley, and Matzke were still
looking at various feedyards.
On or about June 20, 2014, Bretz called Braun, “advising
[him] that [Bretz] had a listing agreement on . . . Oshkosh
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Feedyard, and that he had experienced numerous problems
dealing with Jessen on the sale of that feedyard.” Braun
averred, “Bretz went on to tell me that Betley, Matzke and I
should continue our discussions about the sale of . . . Oshkosh
Feedyard with Jessen, and that Bretz and Jessen would work
things out.”
Braun averred that he, Betley, and Matzke did not decide to
try to purchase Oshkosh Feedyard until the summer of 2014
and that they came to an agreement with Jessen to form a lim-
ited liability company also in the summer of 2014. Oshkosh
Heifer Development did not finalize an agreement to purchase
Oshkosh Feedyard until December 2014. Braun was not aware
of a listing agreement between GCE and Oshkosh Feedyard
until June 20, 2014, and he did not see the agreement until the
lawsuit was filed 3 years later.
Braun understood that GCE and Bretz had given him, Betley,
and Matzke consent to visit directly with Jessen in an attempt
to purchase Oshkosh Feedyard. The first time Braun became
aware that GCE had an objection of any kind to Jessen’s sell-
ing Oshkosh Feedyard to Oshkosh Heifer Development was
in October 2017. Braun averred that he never engaged in any
discussion with Jessen about delaying the purchase or trying to
deprive GCE or Bretz of a commission and that he never had
such intent.
(d) Betley’s Affidavit
Betley’s affidavit is nearly identical to the others. Betley
averred that from May 7 to 13, 2014, he exchanged emails
with Bretz wherein Bretz provided him with information on
Oshkosh Feedyard. Betley averred that he had never spoken
with Jessen about delaying the purchase or depriving GCE
or Bretz of a commission and had never intended to damage
either of them.
(e) Jessen’s Affidavit
Jessen averred that he had no contact with Betley, Braun,
or Matzke about their purchasing Oshkosh Feedyard until
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April 2014, when Matzke contacted him. Before that con-
tact, his “relationship with Bretz had deteriorated primarily
because [he] felt that Bretz was doing a poor job of trying to
sell [Oshkosh Feedyard].”
In April or May 2014, Jessen “advised Bretz that I was com-
municating with the other Defendants about a possible sale of
[Oshkosh Feedyard] to them, and Bretz raised no objection
or complaint about the communication at that time.” Jessen
also saw the email communication between Bretz and Braun.
Jessen averred that Bretz “never complained to me about my
direct contact with the other Defendants in an attempt to sell
[Oshkosh Feedyard].”
Jessen averred that Bretz was “fully aware of the other
defendants,” noting that on August 14, 2014, Bretz provided
Jessen with “at least two of the defendant[s’] names . . . on
a list captioned ‘Oshkosh Prospective Buyers.’” A document
entitled “Oshkosh Prospective Buyers,” dated July 15, 2013,
through July 14, 2014, lists Betley and Braun.
Jessen averred that at no time did he discuss a delay in
closing on Oshkosh Feedyard with Betley, Braun, or Matzke;
attempt to persuade them regarding one; or take any other
action that would have damaged GCE.
According to Jessen, at some point before the end of the
listing agreement, he retained counsel on behalf of Oshkosh
Feedyard. With about 3 weeks left of the agreement, Oshkosh
Feedyard’s counsel informed GCE’s counsel that GCE should
continue its pursuit of any buyers who would be ready, willing,
and able to sign a purchase agreement for the full listing price
before the end of the listing agreement on July 15, 2014.
The letter from Oshkosh Feedyard’s counsel was received
by GCE’s counsel on the same date when Bretz sent the email
that Betley, Braun, and Matzke understood to be encouraging
them to negotiate directly with Jessen if they were interested
in Oshkosh Feedyard. Jessen averred that GCE was never
able to find a buyer ready, willing, and able to pay the full
listing price or able to obtain any written or verbal offer from
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a potential purchaser during either the listing period or the
protection period.
Jessen described that he became a member of Oshkosh Heifer
Development “after the other Defendants and I determined that
if they were going to purchase and operate [Oshkosh Feedyard],
it would be beneficial to them to have a local contact since all
of them lived in other states.” Further, “[t]he closing on the
sale of [Oshkosh Feedyard] did not occur until December of
2014; because not all of the details of the purchase or ongoing
operations had been finalized until then.” Jessen averred that
the limited liability corporation was formed in August 2014
“so that the investors/members would have an entity to use
to purchase [Oshkosh Feedyard] and conduct business in the
event the numerous investors/members reached an agreement
to proceed.” Jessen explained that “[i]t took extensive time for
many months after the termination of the listing agreement to
determine investors/members and reach an agreement on the
sale of [Oshkosh Feedyard].”
Jessen averred that this is the second time Oshkosh
Feedyard has been sued by GCE on similar claims. The prior
lawsuit was filed just 4 days after Bretz furnished Jessen with
the prospective buyers list, and before the protection period
had lapsed.
(f) Sterling Huff’s Affidavit
Sterling Huff, attorney for Jessen and Oshkosh Feedyard,
began representing Jessen and Oshkosh Feedyard before the
expiration of the listing agreement. According to the pleadings,
Jessen, on behalf of Oshkosh Feedyard, sought legal counsel in
early May 2014. Attached to Huff’s affidavit was correspond­
ence between Huff and GCE’s counsel at that time in which
Huff explained that Jessen was unhappy with the amount of
effort Bretz had put into advertising the $4.5 million listing,
for which Oshkosh Feedyard had already paid a $4,000 upfront
listing fee.
In correspondence in June 2014 between Huff and counsel at
the time for GCE, Huff communicated:
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[I]t appears your client has 23 days left in its contract to
make good on its hallowed promises and sell [Oshkosh]
Feedyard. Since the contract states that “Owner . . .
agrees to not negotiate with prospective buyers”, I assume
that your client’s confidence is high that a buyer for the
full listing price will be found within that time. I am
certain a sale of that nature would make all sides of this
equation quite happy.
Huff averred that to the best of his knowledge, this was the
last communication between the parties before the lawsuit was
filed in August 2014. GCE’s counsel never communicated to
Huff that there were any prospective buyers willing to pay the
full listing price or less than the full listing price and never
communicated there were any tentative purchase agreements,
verbal offers, or “any offers on the property whatsoever.”
(g) Oshkosh Heifer Development Documents
and Purchase Agreement
The certificate of organization for Oshkosh Heifer
Development reflects that it was formed on August 7, 2014.
And it was not until December 12 that Oshkosh Heifer
Development adopted a corporate resolution authorizing Braun
to execute the purchase agreement, promissory note, and deed
of trust on its behalf for the purchase of Oshkosh Feedyard.
The purchase agreement was entered into on December 15,
2014, between Oshkosh Heifer Development as the buyer and
Oshkosh Feedyard as the seller. The selling price was $2.5 mil-
lion. The purchase agreement arranged a $600,000 downpay­
ment and the remaining balance to be paid in monthly pay-
ments at an interest rate of 6 percent per annum, with a balloon
payment due on August 2, 2024, if not previously paid off.
In their answers to interrogatories, the defendants stated that
they did not know what the phrase “early occupancy” referred
to in a risk of loss provision of the purchase agreement. The
provision in question provided in full:
Risk of loss is on the Seller until the date and time
of early occupancy by BUYER. SELLER shall keep the
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property adequately insured until said time. In the event
of damage to the property from any source, including
but not limited to theft, vandalism, hail, wind, fire, rain,
flood, snow, weather or other Act of God etc that results
in a 5% or more diminution in value, then the BUYER
can vacate this contract in its entirety in Buyer’s sole and
exclusive discretion by providing written notice to Seller.
SELLER shall have no causes of action nor further rem-
edies against BUYER. BUYER shall keep insurance on
the property from the date of early occupancy forward
and assume all risk of loss.
The promissory note was signed on December 15, 2014.
A six-page trust deed was signed on December 12, 2014,
with Oshkosh Heifer Development as the borrower, Oshkosh
Feedyard as the beneficiary, and Huff as the trustee. In answers
to interrogatories by GCE, the defendants stated that they
did not know why there was language in the trust deed refer-
ring to a “deferred purchase money note,” explaining that the
trust deed was given to secure the promissory note and sums
described therein. That provision states in full:
PURCHASE MONEY SECURITY: This Trust Deed is
given to secure payment of a deferred purchase money
note, by BORROWER to BENEFICIARY to pay the bal-
ance of the purchase price of all or a part of the Trust
Property, and is a continuation of the original lien of the
seller of said Trust Property. This Deed of Trust shall
also apply to any future advances made by Beneficiary
to Borrower.
In their answers to interrogatories, the defendants stated that
no cattle owned by Oshkosh Heifer Development were placed
in Oshkosh Feedyard in 2014.
(h) James Korth’s Affidavit
The only evidence submitted by GCE in opposition to
summary judgment was an affidavit by James Korth, GCE’s
­attorney. Korth averred that while the written discovery in
the case was largely complete, there were still some matters
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of written discovery to be completed, which he listed as
(1) the receipt of documents from Settje Agri Services &
Engineering and (2) a recently arisen dispute between the
parties subject to a motion to compel by GCE set for hearing
on March 4, 2019.
Korth averred, further, that the depositions noticed for May
28 and 29, 2019, were “absolutely essential, especially those
of the Defendants.” Korth elaborated that through deposi-
tions, GCE could explore the activities of and communica-
tions between the defendants during the listing contract period
pertaining to their plans to purchase Oshkosh Feedyard, which
may reveal material issues pertaining to whether they colluded
to purchase Oshkosh Feedyard after the listing period had
elapsed. Korth noted the defendants stated in written inter-
rogatories that they had no knowledge of what the references
in their purchase agreement to an “early occupancy” date
were and that they did not know why there was language in
the trust deed with power of sale referring to a deferred pur-
chase money note—both provisions apparently being suspi-
cious to GCE.
With regard to the delay in taking the depositions, Korth
averred the matter had been “discussed between counsel in
August 2017 . . . and then held in abeyance as a result of then
pending issues regarding written discovery.” Korth attached
a copy of communication in which, on August 1, 2018, the
defendants’ counsel wrote to Korth that if review of discovery
responses did not change GCE’s position, then the defendants
“would like to get depositions schedule[d] right away,” as
the defendants “are going to run into some time constraints
due to the nature of agriculture starting the first and middle
part of September, and if you want their depositions, it will
either need to be sometime during August or late October or
November.” Korth responded on August 17, asking about the
defendants’ availability during the week of August 27 through
31, September 4, or the morning of September 5. The defend­
ants’ counsel responded on August 20 that the defendants
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would be available on September 4 and that counsel would
like to take the depositions of Bretz and George Clift at that
time if possible. Korth responded on August 21, “We are now
looking at the late October or November timeframe for depo-
sitions.” Korth explained, “It appears there are some loose
ends re: pending written discovery requests which make it
impracticable to take depositions at this point; that, and the
fact that my wife is due September 6th, which complicates
matters for me on a personal level.” No further correspondence
was submitted.
9. Order Denying Continuance and
Granting Summary Judgment
On April 23, 2019, the court granted the defendants’ motions
for summary judgment. The court overruled GCE’s objection
to the motion for summary judgment as premature, noting that
the case had been pending for over 18 months and had previ-
ously been brought in 2014.
The court found no issue of fact that GCE failed to produce a
ready, willing, and able buyer within the listing period. Further,
there was no issue of fact that Bretz was aware of the existence
of Betley and Braun as prospective buyers during the listing
period. There was no issue of fact that there were no discus-
sions between Jessen and Betley, Braun, and Matzke during
the listing period regarding an offer to purchase. Discussions
of such a nature began during the protection period, but the
property was not “under contract, sold, transferred, exchanged
or conveyed” before September 15, 2014, as would be required
to be covered by the protection period. As such, there was no
genuine issue of material fact under the first cause of action in
that Jessen and Oshkosh Feedyard did not breach the exclusive
listing agreement.
Concerning the second cause of action for tortious interfer-
ence as against Betley, Braun, and Matzke, the court found
no material issue of fact that Betley, Braun, and Matzke
lacked any knowledge of the exclusive listing agreement and,
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furthermore, that GCE, through Bretz, affirmatively encour-
aged Betley, Braun, and Matzke to engage in negotiations
directly with Jessen for the sale of Oshkosh Feedyard. And the
court found no material issue of fact that Jessen and Oshkosh
Feedyard had not committed an unjustified intentional act of
interference. It was undisputed that no efforts were made by
Jessen and Oshkosh Feedyard to “drag the sale out until after
the expiration of the protection period.”
10. Attorney Fees
The defendants had moved for attorney fees on the ground
that the claims against them were frivolous. The court found that
the action was frivolous. The court reasoned that “after years
of litigation and numerous discovery disputes and resolutions,
the Plaintiff cannot demonstrate sufficient evidence to survive
summary judgment.” Further, “it is apparent in the record that
the Plaintiff’s own agent was aware of the activities it then
complained of and that he, as the Plaintiff’s agent, consented to
such activities.” Finally, the court reasoned, “Discovery dem-
onstrated that the contractual and tortious claims being made
by the Plaintiff were not supported in the evidence and yet the
Plaintiff persisted in its recovery efforts.”
The court ordered GCE to pay attorney fees to Betley,
Braun, and Matzke in the amount of $21,774.78 and to Jessen
and Oshkosh Feedyard in the amount of $25,657.67.
GCE appeals.
III. ASSIGNMENTS OF ERROR
GCE assigns that the district court erred (1) in sustaining the
motions for summary judgment or, alternatively, in failing to
sustain GCE’s motion for a continuance of the hearing on sum-
mary judgment and (2) in sustaining the defendants’ motions
for attorney fees.
Jessen and Oshkosh Feedyard cross-appeal, assigning that
the district court erred by (1) not sustaining their motion to
disqualify and (2) failing to make the award of attorney fees
joint and several against GCE’s attorneys.
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IV. STANDARD OF REVIEW
[1] A trial court’s grant or denial of a continuance is within
the discretion of the trial court, whose ruling will not be dis-
turbed on appeal in the absence of an abuse of discretion. 1
[2] On appeal, an appellate court will uphold a lower
court’s decision allowing or disallowing attorney fees for
frivolous or bad faith litigation in the absence of an abuse of
discretion. 2
[3] Mootness is a justiciability question that an appellate
court determines as a matter of law when it does not involve a
factual dispute. 3
V. ANALYSIS
GCE argues that we should reverse the order of summary
judgment because the district court held the summary judgment
hearing before GCE had conducted depositions. Alternatively,
GCE asserts that the district court abused its discretion in find-
ing GCE’s action frivolous and awarding attorney fees and
costs against it. Jessen and Oshkosh Feedyard cross-appeal,
asserting that the district court erred by denying their motion
to disqualify GCE’s counsel and by failing to order GCE’s
counsel jointly and severally liable for the attorney fees and
costs awarded.
1. Failure to Order Continuance
to Take Depositions
[4] Generally, the control of discovery is a matter for judi-
cial discretion. 4 A trial court’s grant or denial of a continu-
ance is likewise within the discretion of the trial court, whose
1
See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018). See,
also, Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014); Fo Ge
Investments v. First American Title, 27 Neb. Ct. App. 671, 935 N.W.2d 245
(2019).
2
Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).
3
See State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009).
4
Lombardo v. Sedlacek, supra note 1.
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ruling will not be disturbed on appeal in the absence of an
abuse of discretion. 5
[5] Neb. Rev. Stat. § 25-1335 (Reissue 2016) provides a
safeguard against an improvident or premature grant of sum-
mary judgment. 6 It provides:
Should it appear from the affidavits of a party opposing
the motion that he cannot for reasons stated present by
affidavit facts essential to justify his opposition, the court
may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or deposi-
tions to be taken or discovery to be had or may make such
other order as is just.
[6] As a prerequisite for a continuance, additional time, or
other relief, a party is required to submit an affidavit stating
a reasonable excuse or good cause for the party’s inability to
oppose a summary judgment motion. 7 The affidavit of good
cause should specifically identify the relevant information
that will be obtained with additional time and indicate some
basis for the conclusion that the sought information actu-
ally exists. 8
[7] In ruling on a request for a continuance or additional
time in which to respond to a motion for summary judgment,
a court may consider the complexity of the lawsuit, the com-
plications encountered in litigation, and the availability of
evidence justifying opposition to the motion. 9 The court may
also consider whether the party has been dilatory in completing
discovery and preparing for trial. 10
5
Lombardo v. Sedlacek, supra note 1. See, also, Gaytan v. Wal-Mart, supra
note 1; Fo Ge Investments v. First American Title, supra note 1.
6
Ronald J. Palagi, P.C. v. Prospect Funding Holdings, 302 Neb. 769, 925
N.W.2d 344 (2019); Lombardo v. Sedlacek, supra note 1.
7
See Ronald J. Palagi, P.C. v. Prospect Funding Holdings, supra note 6.
8
See, id.; Lombardo v. Sedlacek, supra note 1.
9
Gaytan v. Wal-Mart, supra note 1; Fo Ge Investments v. First American
Title, supra note 1.
10
Gaytan v. Wal-Mart, supra note 1.
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The district court did not abuse its discretion in implicitly
determining that GCE had been dilatory in failing to conduct
depositions sooner. Despite the fact that this was the sec-
ond action making the same allegations against Jessen and
Oshkosh Feedyard as to an alleged breach of the exclusive
listing agreement, January 28, 2019, was apparently the first
time GCE took decisive steps to depose Jessen in either action.
GCE took steps to depose the other defendants and nonparty
Settje Agri Services & Engineering for the first time on that
same date.
At that point, it had been approximately 18 months since
the inception of this second lawsuit. Eight months after fil-
ing this action, GCE had been unable to identify in response
to Jessen and Oshkosh Feedyard’s requests for production of
documents any document whatsoever that GCE intended to
offer as evidence in support of its causes of action at trial or
in a summary judgment hearing. This was after the first action
had continued for almost 3 years before the court dismissed it
for lack of prosecution. We have held that the time that a simi-
lar, prior case was pending without a request for depositions is
relevant to a district court’s determination of whether the party
opposing summary judgment has had an adequate opportunity
for discovery. 11
The only explanation for good cause stated in GCE’s motion
was to blame the delay on the defendants’ failure to respond to
all written discovery requests, for which GCE had “been forced
to file five motions to compel.” In the affidavit submitted by
Korth on GCE’s behalf, he outlined correspondence which
showed the defendants made themselves available for deposi-
tions in August, October, or November 2018. But that cor-
respondence also demonstrated that GCE put the depositions
off until October or November due in part to “pending written
discovery requests” that GCE thought made “it impracticable
to take depositions” earlier. And the depositions never took
place in October or November.
11
See id.
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While it is clear that written discovery was not completed
to GCE’s satisfaction before the defendants’ motions for sum-
mary judgment, GCE did not explain why it could not effec-
tively conduct its depositions without every piece of written
discovery it wished to have. Further, not every motion by GCE
to compel was granted. The district court was in the best posi-
tion to determine to what extent the defendants were being
unreasonable in their discovery responses and to what extent
the lack of any written discovery interfered with GCE’s ability
to conduct depositions. We find no abuse of discretion in the
district court’s judgment.
Having determined that the district court did not prematurely
address the defendants’ motions for summary judgment, we
turn to the merits of GCE’s case and whether GCE’s action
was frivolous.
2. GCE’s Causes of Action
[8] GCE’s argument relating to the court’s alleged error in
ordering summary judgment rests entirely on its claim that
the court held the summary judgment hearing prematurely
before GCE had conducted depositions, a claim which we
have already explained lacks merit. The only statement in the
argument section in GCE’s brief asserting that there was a
material issue of fact presented at the summary judgment hear-
ing was GCE’s conclusory statement that “it is fairly evident
that material factual issues remained at the time the Appellees
filed their respective motions for summary judgment.” 12 To be
considered by an appellate court, an alleged error must be both
specifically assigned and specifically argued in the brief of the
party asserting the error. 13 The conclusory statement that it is
“fairly evident” there were material issues of fact was insuf-
ficient to present a specific argument. 14 GCE did not support
12
Brief for appellant at 20.
13
Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264
(2014).
14
Brief for appellant at 20.
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this ­conclusion by directing this court in the argument sec-
tion of its brief to any material fact in the record in dispute. 15
Nevertheless, in order to address GCE’s assignment of error
regarding the court’s award of attorney fees for maintaining a
frivolous action, we must examine the evidence in light of the
law governing GCE’s claims.
(a) Procuring Ready, Willing, and Able
Buyer During Listing Period
[9] As the district court noted, there was never any dispute
that GCE was not entitled to a commission under the exclusive
listing agreement for performing the condition of producing
a ready, willing, and able buyer during the listing period. A
broker employed for a definite time to effect a sale of property
must perform whatever obligations the contract imposes upon
the broker within the time limited. 16 If the broker does thus
perform such obligations, the broker is entitled to the commis-
sion. 17 If the broker fails to perform within the time, the broker
cannot recover the commission. 18
[10] The exclusive listing agreement between GCE and
Oshkosh Feedyard referred to the commission’s being earned
and payable either after a sale within the periods specified;
after GCE produced a ready, willing, and able buyer agreeable
to Oshkosh Feedyard’s price and terms as stated in the listing
agreement; or after signing by Oshkosh Feedyard and a buyer
of a letter, memorandum, or contract that contained agreements
to convey the property. Ordinarily, a real estate broker who,
for a commission, undertakes to sell land on certain terms and
within a specified period is not entitled to compensation for his
or her services unless he or she produces a purchaser within
15
See Hauptman, O’Brien v. Turco, 277 Neb. 604, 764 N.W.2d 393 (2009).
16
Annot., 26 A.L.R. 784 (1923).
17
Id.
18
Id.
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the time limit who is ready, willing, and able to buy upon
the terms prescribed. 19 When a broker is engaged by an owner
of property to find a purchaser, the broker earns the commis-
sion when (1) the broker produces a purchaser ready, willing,
and able to buy on the terms fixed by the owner; (2) the pur-
chaser enters into a binding contract with the owner to do so;
and (3) the purchaser completes the transaction by closing the
title in accordance with the provisions of the contract. 20
[11,12] However, so long as the contract does not otherwise
provide, generally the final act of closing a sale within the list-
ing period is not a condition precedent to a broker’s right to a
commission—if the broker has secured a binding contract of
sale and is not at fault for the fact that the contract is never
carried out. 21 The right to compensation based on the broker’s
production of a purchaser ready, willing, and able to buy upon
terms specified by the principal or satisfactory to him or her
is not impaired by the subsequent inability or unwillingness of
the owner to consummate the sale on the terms prescribed. 22
On the other hand, in a listing agreement contemplating the
negotiation of terms, a commission is not earned by the bro-
ker until an agreement upon the terms is reached between the
buyer and seller. 23
Thus, we have held that where a real estate broker obtains
a purchaser for real estate while his brokerage contract is
in full force and effect and no sale is made during the exis-
tence of the agreement, but the sale is made thereafter by the
owner to the person produced by the agent and on “substan-
tially the same terms” previously offered through the agent’s
efforts, the broker is entitled to a commission for making the
19
McCully, Inc. v. Baccaro Ranch, 284 Neb. 160, 816 N.W.2d 728 (2012).
20
Dworak v. Michals, 211 Neb. 716, 320 N.W.2d 485 (1982).
21
See 12 C.J.S. Brokers § 225 (2004).
22
See Wisnieski v. Coufal, 188 Neb. 200, 195 N.W.2d 750 (1972).
23
See 12 C.J.S., supra note 21.
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sale. 24 Conversely, we have held that a broker is not entitled
to a commission where the broker obtains a purchaser for real
estate but no sale is made during the existence of the agree-
ment and the sale is later made by the owner to the same pur-
chaser but on terms that are not substantially the same offered
through the agent’s efforts. 25
In McCully, Inc. v. Baccaro Ranch, 26 we accordingly held
that the commission was due despite the fact that the actual
closing took place after both the listing period and protection
period, because the agent had found a buyer who had satisfied
the condition of the listing agreement as being ready, willing,
and able to purchase the property at terms acceptable to the
seller within the listing period. The negotiations had been com-
pleted within the listing period, and the buyer testified he was
ready to exchange based on the proposal signed during that
listing period. The purchase agreement signed after the listing
and protection periods was the exact same proposal signed by
the buyer within the listing period, but with the proposal date
altered to a date closer to the actual closing. 27
In contrast, in Coldwell Banker Town & Country Realty v.
Johnson, 28 we held that the agent was not entitled to a com-
mission when the buyers and sellers entered into direct nego-
tiations mere days after the expiration of the listing agreement
and eventually executed the purchase. We explained that
it did not matter that the buyers, within the listing period,
had negotiated with the agent for the purchase of the same
property and had made an offer on the property, because the
sellers did not accept the offer then made. The purchase was
24
See Byron Reed Co., Inc. v. Majers Market Research Co., Inc., 201 Neb.
67, 71, 266 N.W.2d 213, 215 (1978).
25
Huston Co. v. Mooney, 190 Neb. 242, 207 N.W.2d 525 (1973).
26
McCully, Inc., v. Baccaro Ranch, supra note 19.
27
See id. See, also, Huston Co. v. Mooney, supra note 25.
28
Coldwell Banker Town & Country Realty v. Johnson, 249 Neb. 523, 544
N.W.2d 360 (1996).
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later effectuated under terms different from the terms of the
buyers’ first offer, during the listing period. In other words,
we explained, the terms under which the sale took place were
reached through the sellers’, not the agent’s, efforts. 29
GCE did not allege it had obtained within the listing period
a buyer who was ready, willing, and able to purchase Oshkosh
Feedyard either at the listing price or at a price and on terms
agreeable at that time to its owner. The 12-month listing period
expired on July 15, 2014. There was no issue of fact that in
May 2014, Betley, Braun, and Matzke were just starting to
explore numerous feedyard options and stated to Jessen that
they were in no position to make any offers. They were still
considering several different feedyards in June 2014. Unlike
the buyers in Coldwell Banker Town & Country Realty, Betley,
Braun, and Matzke never even made an offer during the listing
period—let alone an offer at the listing price or at a different
price and on terms Oshkosh Feedyard was willing to accept.
Thus, this case does not present a question of whether the
agreement eventually reached was substantially the same as
that procured by the broker.
[13] When the broker has failed to perform the condition
upon which he or she was to be paid, there is an end to the con-
tract; all contractual obligations of the owner toward the broker
are terminated and the parties stand as if a contract had never
been made. 30 The market for the sale of the owner’s property
is not circumscribed by the fact that some or all available pur-
chasers have theretofore been approached by the broker. 31
(b) Protection, Extension, or Safety Periods
While the exclusive listing agreement, like many listing
agreements, had a protection period clause, GCE also never
asserted that it was owed a commission because, pursuant to
29
See id. See, also, Huston Co. v. Mooney, supra note 25.
30
Loxley v. Studebacker, 75 N.J.L. 599, 68 A. 98 (1907).
31
See id.
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the terms of the protection period clause of the agreement,
Oshkosh Feedyard was under contract, sold, transferred,
exchanged, or conveyed during the protection period to any
person to whom GCE submitted the property.
[14,15] Clauses in exclusive listing agreements setting forth
a protection, extension, or safety period after the listing period
are strictly construed as setting the limits of the time period
in which a sale must take place for a commission to be recov-
erable. 32 These clauses are meant to protect the broker from
losing a commission earned during the listing period due to
evasive conduct of the buyer and seller. 33
The purpose of the protection period clause is to protect
the broker even though the broker is not technically the
procuring cause for the sale, but whose activities alerted the
prospective buyer to the availability of the property for sale
and the seller was able to conclude the sale to the buyer that
he or she would not have been able to do if the broker’s
efforts had not alerted the buyer. 34 They are intended to pro-
tect the broker from a defrauding vendor who waits until just
after the expiration of the initial listing period before selling
to a purchaser with whom the broker has previously con-
ducted negotiations. 35
Thus, a claim that a seller in bad faith during the protec-
tion period delayed a sale until after expiration of the protec-
tion period is somewhat different from a claim that a seller in
bad faith during a listing period purposefully delayed a sale
until after the listing period. The protection period is precisely
32
See Kenney v. Clark, 120 Ga. App. 16, 169 S.E.2d 357 (1969); Thayer v.
Damiano, 9 Wash. App. 207, 511 P.2d 84 (1973).
33
See 2 Harry D. Miller & Marvin B. Starr, California Real Estate § 5:51
(4th ed. 2015). See, also, e.g., Harkey v. Gahagan, 338 So. 2d 133 (La.
App. 1976).
34
See Miller & Starr, supra note 33. See, also, e.g., Mellos v. Silverman, 367
So. 2d 1369 (Ala. 1979).
35
D. Barlow Burke, Jr., Law of Real Estate Brokers § 4.03 (4th ed. 2020).
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that—a protection from bad faith during the listing period
without having to prove such tortious intent. And the seller’s
obligations during such protection period are accordingly more
limited than those present during the listing period. As one
court noted, if a broker wishes to retain the right to earn a
commission on sales for which it was the procuring cause even
though completed after the expiration of the extension period,
the broker, as drafter of the agreement, can use the appropriate
language to effectuate that intent in the agreement. 36
It was undisputed that no contract, sale, transfer, exchange,
or conveyance of Oshkosh Feedyard occurred during the pro-
tection period to anyone.
(c) Duty to Refer and Refrain
From Negotiating
Nevertheless, GCE asserts that a sale would have occurred
during the protection period but for the defendants’ allegedly
tortious conduct. In its first cause of action, GCE claimed
Jessen and Oshkosh Feedyard breached the provision of the
last sentence of the protection period clause, which states:
“Owner agrees to refer all prospective buyers to Broker and
agrees not to negotiate with such prospective buyers.” In
its operative complaint, GCE asserted that it was owed the
4.5-percent commission because Jessen and Oshkosh Feedyard
breached this promise of the exclusive listing agreement,
thereby depriving GCE of its “opportunity to contact and nego-
tiate with prospective buyer(s), known to Defendants JESSEN
and [Oshkosh Feedyard].”
But, as the district court pointed out, it was undisputed that
GCE knew of Betley and Braun and in fact encouraged them
to negotiate directly with Jessen. And GCE, through its agent
Bretz, was obviously aware of this fact before the present
36
See Leadership Real Estate, Inc. v. Harper, 271 N.J. Super. 152, 638 A.2d
173 (1993).
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and the previous legal actions were commenced. Bretz had
communicated to Braun, during the 12-month listing period,
“Please continue forward on that project as long as it is viable
to you. The owner and I will deal with the listing agreement.”
In a telephone conversation with Braun around the same
time, Bretz told Braun that he, Betley, and Matzke “should
continue [their] discussions about the sale of . . . Oshkosh
Feedyard with Jessen, and that Bretz and Jessen would work
things out.”
[16] A written contract may be waived in whole or in part,
either directly or inferentially, and the waiver may be proved
by express declarations manifesting the intent not to claim the
advantage, or by so neglecting and failing to act as to induce the
belief that it was the intention to waive. 37 It is clear that GCE
waived the obligation upon which it based its first cause of
action against Jessen and Oshkosh Feedyard. Bretz, on behalf
of GCE, apparently did so in the hope that direct communica-
tions with Jessen would lead to Betley’s and Braun’s becoming
ready, willing, and able buyers on terms agreeable to Jessen
before expiration of the protection period, thereby allowing
GCE to claim a commission even though Jessen, rather than
Bretz, would have been the procuring cause. When Jessen
failed to reach an agreement within the protection period with
Betley, Braun, and Matzke as to the price and terms of a sale
of Oshkosh Feedyard, GCE sued Jessen and Oshkosh Feedyard
for breaching the very provision it had waived in hopes of
gaining an advantage.
[17-19] We also note that even if not waived, any claim of a
breach of Oshkosh Feedyard’s obligations under the protection
period clause is subject to the general requirement that a plain-
tiff in a breach of contract action must prove that the breach
was the proximate cause of the damages claimed. It is a basic
concept that in any damage action for breach of contract, the
claimant must prove that the breach of contract complained of
37
Pearce v. ELIC Corp., 213 Neb. 193, 329 N.W.2d 74 (1982).
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was the proximate cause of the alleged damages. 38 There must
be a causal relationship between the damages asserted and
the breach relied upon. 39 Proof which leaves this issue in the
realm of speculation and conjecture is insufficient to support
a judgment. 40
The failure to refer buyers to GCE could not be the proxi-
mate cause of any damages if GCE was actually aware of the
buyers during the listing period and had direct contact with
at least two of them. Moreover, after approximately 41⁄2 years
of litigation in two actions, GCE still failed to produce any
evidence supporting a reasonable inference that Jessen’s direct
negotiations with Betley, Braun, and Matzke were the proxi-
mate cause of GCE’s failure to produce a buyer who was ready,
willing, and able to purchase Oshkosh Feedyard within the
listing period for the listing price or at another price and upon
terms agreeable to Oshkosh Feedyard or the proximate cause of
Oshkosh Feedyard’s failure within 2 months of the expiration
of the listing agreement to be under contract, sold, transferred,
or conveyed to a person submitted by GCE per the terms of the
protection period clause.
All the defendants averred that they did not reach an agree-
ment as to the terms of the purchase of Oshkosh Feedyard
until December 2014. In fact, even viewing the evidence in
the light most favorable to GCE, it appears that at no point
during the 12-month listing period or the 2-month protection
period following did the parties come close to reaching an
accord as to the price and terms of a purchase. Only in August
2014 did Jessen, in his individual capacity, reach an agreement
with Betley, Braun, and Matzke to join together in forming a
38
Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465 (1993).
See, also, e.g., Sack Bros. v. Tri-Valley Co-op, 260 Neb. 312, 616 N.W.2d
786 (2000).
39
Id.
40
Id. See, also, e.g., Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68
(2011).
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limited liability corporation, Oshkosh Heifer Development,
for purposes of negotiating an offer. All evidence presented
at the summary judgment hearing was that the formation of
Oshkosh Heifer Development was merely the first step in
reaching an accord as to the terms of the conveyance that did
not occur until December.
While it is true that Jessen was both a party to Oshkosh
Heifer Development and the president of Oshkosh Feedyard, it
would be mere speculation to infer that because of Jessen’s dual
roles, he had already reached an accord on behalf of Oshkosh
Feedyard with Oshkosh Heifer Development and fabricated an
arbitrary 3-month delay in selling Oshkosh Feedyard. As we
said in The Nebraskans, Inc. v. Homan, 41 an agent’s specula-
tion that something between the buyers and sellers took place
within the protection period does not create a material issue
of fact. 42
(d) Conspiracy to Tortiously Interfere
With Business Relationship
In its second cause of action, GCE alleged the defendants
engaged in a conspiracy to tortiously interfere with GCE’s
contract, business relationship, or expectation. Specifically,
GCE alleged that Betley, Braun, and Matzke “conspired with
[Jessen] to arrange terms of a sale which deprived [it] of
the Brokerage Fee owed . . . under the Exclusive Listing
Agreement.” Under this theory, GCE again alleged that while
it did not earn a commission under the exclusive listing agree-
ment by producing a ready, willing, and able buyer within the
listing period (or a sale within the protection period), this fail-
ure was proximately caused by the alleged conspiracy between
the defendants.
41
The Nebraskans, Inc. v. Homan, 206 Neb. 749, 294 N.W.2d 879 (1980).
42
See, Lange Indus. v. Hallam Grain Co., supra note 38; Sack Bros. v. Tri-
Valley Co-op, supra note 38; Bedore v. Ranch Oil Co., supra note 40.
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[20-24] A civil conspiracy is a combination of two or
more persons to accomplish by concerted action an unlaw-
ful or oppressive object, or a lawful object by unlawful or
oppressive means. 43 A claim of civil conspiracy requires the
plaintiff to establish that the defendants had an expressed or
implied agreement to commit an unlawful or oppressive act
that constitutes a tort against the plaintiff. 44 The gist of a civil
conspiracy action is not the conspiracy charged, but the dam-
ages the plaintiff claims to have suffered due to the wrongful
acts of the defendants. 45 Furthermore, a civil conspiracy is
actionable only if the alleged conspirators actually committed
some underlying misconduct. 46 That is, a conspiracy is not a
separate and independent tort in itself; rather, it depends upon
the existence of an underlying tort. 47 So without such underly-
ing tort, there can be no cause of action for a conspiracy to
commit the tort. 48
[25,26] To succeed on a claim for tortious interference with
a business relationship or expectancy, a plaintiff must prove
(1) the existence of a valid business relationship or expectancy,
(2) knowledge by the interferer of the relationship or expect­
ancy, (3) an unjustified intentional act of interference on the
part of the interferer, (4) proof that the interference caused the
harm sustained, and (5) damage to the party whose relationship
or expectancy was disrupted. 49 One of the basic elements of
tortious interference with a business relationship requires an
43
deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).
44
Id.
45
Id.
46
See id.
47
Id.
48
Id.
49
Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d
610 (2019).
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intentional act that induces or causes a breach or termination
of the relationship or expectancy. 50
[27] Though never explicitly pled or argued, the appar-
ent underlying breach at issue (besides the provision of the
protection period already discussed) is that of the implied
covenant of good faith. Real estate broker agreements, like
other contracts, contain an implied covenant of good faith
pursuant to which the seller impliedly covenants he or she will
do nothing that will have the effect of destroying or injuring
the right of the broker to earn a commission. 51 In Dworak v.
Michals, 52 for example, we held that the real estate agent was
entitled to a commission for having procured buyers ready,
able, and willing to buy on the seller’s terms but who backed
out of the agreement when they learned of misrepresentations
by the seller. Similarly, in Dunn v. Snell, 53 we held that while
the principal had a right under the agreement to revoke the
agency at any time before a sale, where the revocation was in
bad faith, it did not defeat a broker’s right to compensation
for the postrevocation completion of a sale on the same terms
originally proposed by the agent before revocation but rejected
by the buyer.
All the defendants averred that they never had any con-
versations with Jessen about delaying the purchase or trying
to deprive GCE of a commission. They further averred that
they lacked any intent to delay reaching an agreement. Betley,
Braun, and Matzke were not even aware of the exclusive
listing agreement until late June 2014, and, as discussed, it
was undisputed that they negotiated with Jessen with Bretz’
encouragement. There was simply no evidence that could sup-
port a reasonable inference that the defendants all agreed to
50
Id.
51
Kislak Co., Inc. v. Geldzahler, 210 N.J. Super. 255, 509 A.2d 320 (1985).
52
Dworak v. Michals, supra note 20.
53
Dunn v. Snell, 124 Neb. 560, 247 N.W. 428 (1933). See, also, Maddox v.
Harding, 91 Neb. 292, 135 N.W. 1019 (1912).
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intentionally interfere with GCE’s business relationship with
Oshkosh Feedyard or otherwise assist in any bad faith act.
Nor, as discussed with regard to the first cause of action,
was there any evidence from which GCE could establish
proximate causation of any damages deriving from the alleged
conspiracy. In other words, there was no evidence from which
it could reasonably be inferred that but for the alleged con-
spiracy to deprive GCE of a commission, Betley, Braun, and
Matzke would have either made an offer at the listing price or
reached an agreement acceptable to Oshkosh Feedyard on the
price and terms of a purchase, within either the listing period
or the protection period.
(e) Conclusion as to Frivolous
Nature of Suit
[28] On appeal, we will uphold a lower court’s decision
allowing or disallowing attorney fees for frivolous or bad faith
litigation in the absence of an abuse of discretion. 54 A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. 55
Neb. Rev. Stat. § 25-824(2) (Reissue 2016) provides that the
court shall award reasonable attorney fees and costs against
any attorney or party who has brought or defended a civil
action that alleged a claim or defense which a court determines
is frivolous or made in bad faith. Section 25-824(4) provides
that the court shall assess attorney fees and costs if, upon the
motion of any party or the court itself, the court finds that an
attorney or party brought or defended an action or any part
of an action that was frivolous or that the action or any part
of the action was interposed solely for delay or harassment.
Section 25-824(5) clarifies that no attorney fees or costs shall
54
Korth v. Luther, supra note 2.
55
Id.
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be assessed if a claim or defense was asserted by an attorney
or party in a good faith attempt to establish a new theory of
law in this state or if, after filing suit, a voluntary dismissal is
filed as to any claim or action within a reasonable time after
the attorney or party filing the dismissal knew or reasonably
should have known that he or she would not prevail on such
claim or action.
[29-31] Frivolous for the purposes of § 25-824 is defined
as being a legal position wholly without merit, that is, with-
out rational argument based on law and evidence to support
a litigant’s position in the lawsuit. 56 It connotes an improper
motive or legal position so wholly without merit as to be
ridiculous. 57 The determination of whether a particular claim
or defense is frivolous must depend upon the facts of the par-
ticular case. 58
It was not clearly untenable for the district court to deter-
mine that GCE’s pursuit of the first cause of action stated
in its amended complaint was frivolous. As the court noted,
GCE knew it had waived the provision of the protection
period prohibiting direct negotiations with Oshkosh Feedyard
before bringing this action and the 2014 action against Jessen
and Oshkosh Feedyard. GCE’s legal position that Jessen and
Oshkosh Feedyard had breached the contract by failing to
refer purchasers whom Bretz had actual knowledge of and
by negotiating directly with those purchasers, when Bretz
encouraged them to do so, was so wholly without merit as to
be ridiculous.
But GCE’s second cause of action, for conspiracy to inter-
fere with business expectations, was not frivolous, and the
district court abused its discretion in concluding otherwise.
Unlike GCE’s claim for breach of contract, for which it was
56
Id.
57
Id.
58
See Shanks v. Johnson Abstract & Title, 225 Neb. 649, 407 N.W.2d 743
(1987).
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aware of facts making the claim wholly without merit from its
inception, GCE’s claim for conspiracy to interfere with busi-
ness expectations was cognizable and brought with a reason-
able belief that discovery would support its allegations.
We recognize that § 25-824(5) contemplates that attorney
fees may be assessed when a party persists in asserting a
claim after it knows or reasonably should know it would not
prevail on the claim. But while we find that the district court
did not abuse its discretion in denying GCE’s motion for a
continuance in order to take depositions, it does not follow
that GCE’s continuing pursuit of its second cause of action
was unreasonable. Any doubt about whether a legal position
is frivolous or taken in bad faith should be resolved in favor
of the one whose legal position is in question. 59 The record
supports GCE’s contention that it persisted in asserting the
conspiracy claim reasonably believing it was entitled to a
continuance of the summary judgment hearing in order to take
depositions that it reasonably believed could reveal evidence
to support its second cause of action. Accordingly, the district
court abused its discretion by concluding that GCE pursued
its second cause of action after it reasonably should have
known it would not prevail and in awarding attorney fees to
Betley, Braun, Matzke, and Oshkosh Heifer Development on
that basis.
To the extent that the district court awarded attorney fees
to all the defendants based on their defense of both causes of
action since the inception of this lawsuit in 2017, it abused
its discretion. Attorney fees for Jessen and Oshkosh Feedyard
related to the first cause of action should be limited to the fees
incurred in defending that cause of action. No attorney fees
should be awarded in relation to the second cause of action.
Thus, the court erred in awarding any attorney fees to Betley,
Braun, Matzke, and Oshkosh Heifer Development—defendants
solely to the second cause of action. We reverse the order of
59
TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010).
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attorney fees and remand the cause with directions for the court
to redetermine the amount of attorney fees to be awarded to
Jessen and Oshkosh Feedyard in relation to their defense of the
first cause of action.
3. Cross-Appeal
On cross-appeal, Jessen and Oshkosh Feedyard assign
and argue that the district court erred by not sustaining
their motion to disqualify GCE’s counsel and by failing to
make the award of attorney fees joint and several against
GCE’s attorneys.
[32,33] We find that Jessen and Oshkosh Feedyard’s assign-
ment of error regarding the denial of their motion to disqualify
GCE’s counsel is moot. Mootness refers to events occurring
after the filing of a suit, which eradicate the requisite personal
interest in the resolution of the dispute that existed at the
beginning of the litigation. 60 An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 61 Jessen and Oshkosh Feedyard
prevailed in their summary judgment motion against GCE
despite the alleged conflict of interest of GCE’s counsel. They
take pains to point out in appealing the denial of their motion
to disqualify GCE’s counsel that they do not wish to relitigate
this underlying result. They simply argue that the same counsel
should be disqualified for similar reasons in the action against
Jessen for self-dealing. Jessen, sued in his individual capacity
in the self-dealing action, is free to move to disqualify plain-
tiffs’ counsel in that case if he believes he has standing and
grounds for such a motion.
[34] We find no merit to Jessen and Oshkosh Feedyard’s
assertion that the district court abused its discretion by failing
to order that GCE’s attorneys have joint and several liability
with GCE for the award of attorney fees pursuant to § 25-824.
60
Bramble v. Bramble, 303 Neb. 380, 929 N.W.2d 484 (2019).
61
Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).
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Under § 25-824, “[w]hen a court determines reasonable attor-
ney’s fees or costs should be assessed, it shall allocate the
payment of such fees or costs among the offending attorneys
and parties as it determines most just and may charge such
amount or portion thereof to any offending attorney or party.”
Allocation of amounts due between offending parties and
attorneys is “‘part and parcel’” of the determination of the
amount of the award and is reviewed for an abuse of discre-
tion. 62 GCE was clearly the driving force of its 5-year fruitless
pursuit of a commission for the sale of Oshkosh Feedyard.
Further, the defendants never presented an argument to the
district court as to why GCE’s attorneys should be held jointly
and severally responsible for GCE’s continuing pursuit of the
frivolous action. Under these facts, the district court’s judg-
ment assessing costs and fees solely against GCE was not
clearly untenable.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the dis-
trict court granting summary judgment. We reverse the district
court’s award of attorney fees and remand the cause with direc-
tions to reassess the amount of the award of attorney fees to
Jessen and Oshkosh Feedyard in accordance with this opinion.
Affirmed in part, and in part reversed
and remanded with directions.
62
See Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 1006, 573 N.W.2d
467, 472 (1998).