TNT Cattle Co. v. Fife

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www.nebraska.gov/apps-courts-epub/
02/14/2020 09:05 AM CST
- 890 -
Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
TNT Cattle Company, Inc., appellee,
v. Dianna Fife, appellant.
___ N.W.2d ___
Filed January 31, 2020. No. S-18-1067.
1. Declaratory Judgments. An action for declaratory judgment is sui
generis; whether such action is to be treated as one at law or one in
equity is to be determined by the nature of the dispute.
2. Declaratory Judgments: Appeal and Error. In appellate review of
an action for a declaratory judgment in a law action, factual find-
ings by the trier of fact will not be set aside unless such findings are
clearly erroneous.
3. Breach of Contract: Leases. An action for breach of a lease agreement
is an action at law.
4. Jurisdiction: Pleadings: Appeal and Error. Factual findings in a
court’s determination of a factual challenge to subject matter jurisdiction
are reviewed under a clearly erroneous standard.
5. Parties: Words and Phrases. An indispensable party to a suit is one
whose interest in the subject matter of the controversy is such that the
controversy cannot be finally adjudicated without affecting the indis-
pensable party’s interest, or which is such that not to address the interest
of the indispensable party would leave the controversy in such a condi-
tion that its final determination may be wholly inconsistent with equity
and good conscience.
6. Parties: Waiver. Neb. Rev. Stat. § 25-323 (Reissue 2016) deprives a
court of the authority to determine a controversy absent all indispensable
parties and cannot be waived.
7. Parties. The burden of procuring the presence of all indispensable par-
ties is on the plaintiff.
8. Breach of Contract: Time: Words and Phrases. An anticipatory
breach of contract is one committed before the time has come when
there is a present duty of performance and is the outcome of words or
acts evincing an unequivocal repudiation of the contract.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
9. Breach of Contract: Time. When there is an anticipatory breach, the
promisee has the option to treat the contract as ended so far as further
performance is concerned and maintain an action immediately rather
than await the promisor’s time for performance.
10. Pleadings: Evidence: Trial. A party may at any and all times invoke the
language of his opponent’s pleadings on which the case is being tried on
a particular issue as rendering certain facts indisputable.
11. Pleadings: Evidence: Waiver. The pleadings in a cause are not a means
of evidence, but a waiver of all controversy, so far as the opponent
may desire to take advantage of them, and therefore, a limitation of
the issues.
12. Pleadings. Statements in pleadings remain binding only until the plead-
ing is amended.
13. Pleadings: Evidence. Matters contained in superseded pleadings
are simple admissions that are admissible as evidence of the facts
alleged therein and may be introduced and considered the same as any
other evidence.
14. Pleadings. A judicial admission does not extend beyond the intend-
ment of the admission as clearly disclosed by its context and must be
unequivocal, deliberate, and clear, and not the product of mistake or
inadvertence.
15. Property: Contracts: Leases. A transferor of an interest in leased
property, who immediately before the transfer is obligated to perform
an express or implied promise of the lease resting on privity of contract,
continues to be obligated after the transfer.
16. Landlord and Tenant: Leases: Liability. A landlord who has trans-
ferred his or her interest in the land remains liable under a lease agree-
ment, on the implied promise of quiet enjoyment, for disturbances of the
tenant by the former landlord himself or herself or by someone whose
conduct is attributable to the former landlord.
17. Leases: Evidence: Intent. Where the terms of a written lease appear
to be ambiguous and uncertain as to the intended length of the tenancy
or the beginning or end of the term, then, as in other cases of ambi-
guity, parol evidence may properly be resorted to for the purpose of
resolving the uncertainty and explaining the parties’ true intentions in
that respect.
18. Contracts. Instruments made in reference to and as part of the same
transaction are to be considered and construed together.
19. Contracts: Intent: Appeal and Error. When a document is ambiguous,
it is for the trier of fact to determine the intent of the parties from all
the facts and circumstances, and such findings will be upheld on appeal
unless they are clearly erroneous.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
20. Contracts: Rescission: Words and Phrases. A “rescission” amounts to
the unmaking of a contract.
21. Contracts. A modification continues the original contract with some
changes.
22. Contracts: Rescission. In determining whether a rescission took place,
courts look not only to the language of the parties but to all the
circumstances.
23. Contracts: Rescission: Intent. Mutual rescission of a contract must be
clear, positive, unequivocal, and decisive, and it must manifest the par-
ties’ actual intent to abandon their contract rights.
24. Breach of Contract: Damages. In a breach of contract case, the ulti-
mate objective of a damages award is to put the injured party in the
same position the injured party would have occupied if the contract had
been performed, that is, to make the injured party whole.
25. ____: ____. One injured by a breach of contract is entitled to recover
all its damages, including the gains prevented as well as the losses sus-
tained, provided the damages are reasonably certain and such as might
be expected to follow the breach.
26. Damages: Proof. While damages need not be proved with mathematical
certainty, neither can they be established by evidence which is specula-
tive and conjectural.
27. ____: ____. Uncertainty as to the fact of whether damages were sus-
tained at all is fatal to recovery, but uncertainty to amount is not if the
evidence furnishes a reasonably certain factual basis for computation of
the probable loss.
28. Damages: Appeal and Error. The amount of damages to be awarded
is a determination solely for the fact finder, and the fact finder’s deci-
sion will not be disturbed on appeal if it is supported by the evidence
and bears a reasonable relationship to the elements of the damages
proved.
Appeal from the District Court for Buffalo County: William
T. Wright, Judge. Affirmed.
Jack W. Besse, of Parker, Grossart & Bahensky, L.L.P., for
appellant.
Siegfried H. Brauer, of Brauer Law Office, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
Freudenberg, J.
I. NATURE OF CASE
This appeal involves a dispute between an out-of-state land-
lord and her tenant as to the duration of their farm lease
agreement. Two writings were considered by the court as
embodying their agreement, one which stated that the “lease
period will go from January 2007 until December 2017 a ten
year period” and the other providing that “[t]he land will be
maintained . . . from January 2007 until December 2017.” The
court found for the tenant that there was an 11-year lease and
awarded damages for breach of contract. The landlord argues
on appeal that the lower court lacked jurisdiction to issue the
judgment, because title to the farmland was transferred into
a trust before the tenant was evicted, and that therefore, the
landlord in her capacity as sole trustee of the trust was an
indispensable party. On the underlying merits, the landlord
asserts that the lease was for 10 years and that, in any event,
an oral modification replaced the written agreement such that
an oral year-to-year lease governed when she gave notice of
termination. The landlord also argues that the district court’s
calculation of the tenant’s damages was based on speculative
and conjectural evidence. We affirm the judgment below.
II. BACKGROUND
Rowland Trampe is the sole owner and president of TNT
Cattle Company, Inc. (TNT). He entered into a long-term
lease agreement with Dianna Fife to lease farmland located
at “Section Twenty-Six (26), Township Ten (10) North,
Range Seventeen (17), West of the 6th P.M., Buffalo County,
Nebraska” (Fife farm). When Fife indicated to Trampe that he
should vacate the Fife farm before the end of the lease term
as understood by Trampe, TNT sued Fife. The fundamental
disagreement between TNT and Fife was whether their writ-
ten agreement provided that the lease period would end in
December 2016 or in December 2017 and, further, whether a
subsequent oral agreement to change the crops grown on the
Fife farm rescinded the written agreement such that they were
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
operating under an oral year-to-year lease when Fife advised
Trampe the tenancy would be ending.
TNT’s original complaint was filed on April 19, 2017, and
relied on a singular document containing the parties’ nota-
rized signatures and stating that the “lease period will go from
January 2007 until December 2017 a ten year period.” An
amended complaint claimed that this document in conjunction
with another document executed at the same time constituted
the written agreement between the parties. The other docu-
ment, containing the notarized signatures of the parties dated
the same as the first document, described that “[t]he land will
be maintained by TNT . . . from January 2007 until December
2017,” without mention of a “ten year period.”
TNT alleged in its original complaint filed on April 19,
2017, that “[Fife] has forwarded certain communications to
[TNT] within the last few months that taken together indicate
that [Fife] intends to breach the Lease and deny [TNT] posses-
sion of and access to the [Fife f]arm for the 2017 crop year.”
More specifically, TNT alleged Fife had asserted that the lease
would terminate as of December 31, 2016, and that she had
the right to exclude TNT after that date. TNT sought injunc-
tive relief from any action by Fife to terminate the lease or
dispossess TNT from the Fife farm before December 31, 2017;
declaratory judgment that the lease ran through December 31,
2017; and damages for anticipatory breach of the lease. In
the amended complaint, filed on September 14, 2017, TNT
repeated the allegations of the original complaint, alleging still
that TNT’s “anticipated dispossession” for the 2017 crop year
would cause TNT irreparable harm and that in the event TNT
is not granted injunctive relief, it would suffer damages for lost
profits from the 2017 crop year.
Fife, in her answers, alleged that the parties had agreed that
the lease term would end on December 31, 2016, and that any
reference to “December 2017” was a mistake that should be
construed against TNT, which she alleged was the scrivener.
She alleged that, in any event, the long-term lease agreement
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
was no longer controlling, because it was subsequently modi-
fied to an oral year-to-year lease. Fife counterclaimed against
TNT for an accounting of her crop share during the course of
their lease agreement, intentional interference with the contrac-
tual relationship with a lease agreement between “defendant”
and a new tenant, and trespass, when Trampe allegedly allowed
his cattle to graze on stalks on the Fife farm in the fall and
winter of 2009 through 2012. TNT did not file any pleading in
response to the counterclaim.
After a pretrial hearing, the court found the evidence insuf-
ficient to warrant a temporary injunction, reasoning that TNT
had failed to establish a clear right to an injunction by virtue
of the lease agreement, because that agreement was ambigu-
ous. A bench trial was held on permanent injunctive relief and
the underlying claims of declaratory judgment and breach of
contract, bifurcating the trial on the underlying merits of these
claims from a determination of any damages. Trial on Fife’s
counterclaim was postponed until after the court’s determina-
tion on Fife’s claims. The court ultimately found that injunc-
tive relief was moot, but found in favor of TNT for breach of
contract and awarded TNT damages.
1. Oral Year-to-Year Lease
From 2003 to 2008
The evidence at trial demonstrated that Fife had purchased
the Fife farm in January 2003 and that from that time until
2008, Trampe farmed the land under an oral year-to-year
arrangement. Prior to Fife’s acquisition, Trampe had been
farming the land for the previous landlord.
2. Long-Term Written Lease
Agreement for Row Crop
Trampe testified that in the summer of 2007, he and Fife
began discussing putting an irrigation pivot on the Fife farm
in order to utilize all the approved irrigated acres and thereby
not lose the Fife farm’s designation with the U.S. Department
of Agriculture Farm Service Agency. Trampe noted that the
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
dry hay was “becoming older hay and was going to fizzle
out” anyway.
Trampe offered to assist at his own expense with some of
the “dirt work” necessary for installation of a pivot so long as
he could recoup that investment through a 10-year lease. The
pivot was installed and began operation in 2008 for the 2008
farm year.
According to Trampe, he understood that the 10-year lease
period would commence once the pivot was in place. Trampe
explained that when negotiating the new arrangement, he was
aware that the pivot would not be installed until the spring of
2008. Thus, he understood that the duration of the new lease
would be for one final year of dryland hay production plus 10
years of irrigated row crop production.
Fife acknowledged multiple telephone conversations with
Trampe generally pertaining to installation of pivot irrigation,
but she could not recall “anything at all” with respect to what
was said.
(a) Exhibits 3 and 4
Trampe testified that after discussing the matter at length
over the telephone, Fife mailed a lease document to him with
the crops and percentages left blank. The original draft lease
agreement sent by Fife with items left blank was entered into
evidence as exhibit 4. Trampe explained that he had found the
document the night before the trial.
The document as sent by Fife originally provided: “The land
will be maintained by TNT Cattle Co, . . . from January 2007
until December 20__.” Further, several lines of the document
described that “[c]rop percentage will be __% for the sale of
[specified crop],” alternating “for TNT Cattle Co.” and “for
Dianna S. Fife Trust.” These lines specified alfalfa, soybeans,
and corn. Four similar lines following left the crop blank. The
document provided that “None of Dianna S. Fife heirs may
contest this contract.”
The forwarding letter, exhibit 3, which Trampe had also
located the evening before trial, stated in relevant part:
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
I am enclosing a rough draft of a contract for us to
sign. See what you think and let me know. If you like
it, just fill in the number of years in the blank and the
percentage of crops etc. You can re-type it if you like. I
think you will need to initial the % areas when you go to
a Notary. I will have to do the same so they know we both
agree on it. You can go to a Notary and then send them to
me and I will sign them in front of a Notary. I will send
your copy back to you and I will keep a copy. I have no
problem with the number of years you want to work the
land. I don’t plan to sell it for a long time.
Fife did not recall the letter, but acknowledged that her signa-
ture was on it.
The blank for the end date of the lease period in exhibit 4
was filled in by Trampe as 2017. Trampe filled in the percent-
ages for the sale of alfalfa as 50 percent to TNT and 50 percent
to the “Dianna S. Fife Trust.” Trampe filled in the blanks for
the lines pertaining to soybeans and corn as 66.7 percent to
TNT and 33.3 percent to the “Dianna S. Fife Trust.” The four
other lines were simply left blank. Trampe then signed the
agreement in the presence of a notary.
Fife objected to the admission of exhibits 3 and 4 on the
grounds of foundation and unfair surprise. The court overruled
the objections and admitted exhibits 3 and 4 into evidence.
(b) Exhibit 1
Trampe testified that based on the letter and exhibit 4, he
had created another document, exhibit 1, which provided in
full:
Rowland Trampe owner and operater of TNT Cattle
Co. Inc. agrees to rent the farm ground from Dianna Fife
in section 26 T-10-N-R-17-W in Grant township. The
lease period will go from January 2007 until December
2017 a ten year period. The ground will be rented on
shares in corn and soybeans 66.7 percent to TNT Cattle
Co. and 33.3 percent to Dianna Fife. Dianna will pay
her share of the Fertilizer and TNT Cattle Co. will pay
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
his share of Fertilizer plus 100 percent of the herbicides
and insecticides. Dianna will pay all bills for the repairs
of the wells the pumps gear heads the pivot and her
well motor.
(c) Exhibits 1 and 4 Signed
Simultaneously
Trampe testified that he signed both exhibit 1 and exhibit 4
in front of a notary on January 16, 2007, and the exhibits so
reflect. Trampe testified that he mailed both documents to Fife
together. Fife subsequently returned both documents to Trampe
via the postal service, after signing them both in the presence
of a notary on February 7, 2007.
Fife signed exhibit 1 “Dianna Fife,” but signed exhibit 4 as
“Dianna S. Fife Trust.”
Fife could not specifically recall preparing or signing exhibit
4, but she verified that it was her signature on the document.
Trampe testified that he received the signed documents back
from Fife sometime around mid-February 2007.
3. Change of Crop to
Organic Alfalfa
The lease arrangement continued without incident until
2015. Before the 2015 growing season commenced, Fife
approached Trampe, expressing the desire to switch from the
genetically modified row grain crop that was being grown
on the Fife farm to organic alfalfa. Further, Fife expressed to
Trampe that she no longer wished to contribute to any of the
farming expenses.
Trampe explained that alfalfa seed is an expensive perennial
and that switching to alfalfa from the row crops required more
fieldwork and water. Furthermore, the first year of an alfalfa
crop does not yield a good harvest. After the first year, the
perennial crop produces a good yield for about 6 years.
Trampe testified that he believed he had at least 3 more
years under the lease agreement to recoup his investment. In
other words, they were simply modifying the agreement to
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
change the crop and the percentage shares of costs and profits,
not the lease term. Trampe testified that he expected to have
at least three cuttings of alfalfa in 2015 and four in 2016 and
2017. He would not have planted such an expensive crop at his
own expense for only a 2-year lease.
Trampe proposed that they could split the profits 50-50 if
Fife paid half of the farming expenses. If, on the other hand,
Fife did not contribute to any of the farming expenses, she
could receive one-third of the profits, while Trampe would
retain two-thirds. According to Trampe, Fife told him that
she wished to enter into the one-third arrangement where she
would not incur any farming expenses.
TNT replowed and reconfigured the ground to allow for the
production of alfalfa, planting the first new crop in the spring
of 2015. Thereafter, TNT made three cuttings of alfalfa in 2015
and four in 2016, keeping two-thirds for himself and allocat-
ing the remaining one-third of the yield to Fife. The evidence
was undisputed that Fife received one-third of the profits from
these harvests.
4. Termination
(a) Letter
Trampe testified that he received a letter from Fife in August
2016, in which Fife first communicated she might be looking
for another tenant, and that she and Trampe had different ideas
about the end date of the lease agreement. Trampe described
that the letter stated Fife “had other offers to farm the ground.”
Fife described that she sent the letter in July 2016 and that
in the letter, she notified Trampe that TNT’s lease would
terminate effective December 31, 2016. The letter was not
in evidence.
(b) Conversations
Trampe and Fife spoke on the telephone after Trampe
received the letter. The court found that they discussed their
disagreement as to when the lease period would end and
“apparently negotiated through 2016 calendar year.”
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
Trampe and Fife had a face-to-face meeting at a restaurant
in Kearney, Nebraska, in September 2016. The exact date of
the conversation is unclear. Trampe testified that during the
conversation, he expressed his opinion that their lease agree-
ment was until 2017:
[B]ut I said if it would help . . . , if you want a new con-
tract—because she told me just give her a new bid on it.
She wanted to go a three-year contract. So I thought about
it and I did, I sent her a new proposal, assuming that if
that was the case, well, I would be all right with that
because planting the hay, I was hoping to get five or six
years out of it where I incurred all the expenses, to kind
of recoup some of those expenses.
Fife testified she told Trampe during this conversation that
the 10-year lease would end on December 31, 2016, but that
she had not entered into an agreement with anyone else and
was “more than willing to have him send me a new contract
starting in 2017.” She did not recall Trampe’s end of the con-
versation, but acknowledged that Trampe sent her some pro-
posals afterward.
(c) Negotiations for New
Lease Unsuccessful
Ultimately, Fife did not accept Trampe’s offer, because she
had better bids. Trampe responded it would be hard to compete
with other bidders who did not have to recoup an investment
into the ground and who could take advantage of the seed he
had planted.
(d) Notice of Eviction
Trampe testified that at some later point, he received a letter
from Fife telling him that “I needed to have my stuff or pos-
session and/or shared payoff by December 31 of ’16 or there
would probably be a sheriff there to greet me if I was trespass-
ing on her land, that she would consider it trespassing after
December 31 of ’16.” By December 31, 2016, Trampe had
removed himself and his belongings from the Fife farm.
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
5. Changing Theories of Recovery
and Ownership of Fife Farm
In its original complaint, TNT had sued Fife in her individ-
ual capacity and alleged that the parties’ original lease agree-
ment was represented in a singular ambiguous written instru-
ment, exhibit 1, and that Fife breached the agreement when
she demanded Trampe vacate the premises before the intended
end date of the lease. In her answer to the original complaint,
Fife admitted she was a nonresident landowner “possessed of
and fee owner of” the Fife farm. Further, Fife’s counterclaim
alleged that “defendant” was the owner of the Fife farm. She
attached to her counterclaim the warranty deed that conveyed
the Fife farm to “Dianna S. Fife” in 2003. Fife did not sign the
pleadings and was not present at the hearing on TNT’s request
for a temporary injunction. It was undisputed that although the
“Dianna S. Fife Trust” (hereinafter Fife trust) existed when
Fife and TNT entered into the long-term lease agreement, Fife
held title to the Fife farm as an individual at that time.
But, at the July 2017 trial, both parties presented evidence
that conflicted with the original pleadings. Fife was called by
her counsel as a witness and testified that in September 2016,
she had transferred the Fife farm into an irrevocable trust, the
Fife trust, and that the Fife farm had remained in the Fife trust
since that time. Fife described that she was the sole trustee
but was not asked to provide any additional details about the
Fife trust or its beneficiaries. No evidence was adduced as to
the precise date of the transfer, and the deed itself is not in
the record.
At the close of direct examination and before cross-­
examination of Fife, TNT asserted that Fife was precluded
by the judicial admission in her answer and counterclaim to
the original complaint from claiming she no longer owned
the Fife farm. Despite Fife’s counsel’s objection that Fife had
not signed or verified the answer and counterclaim, the court
agreed and stated that the judicial admission controlled over
the testimony at the hearing. The court denied a motion by
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304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
Fife’s counsel to withdraw the admissions so as to conform to
the evidence or, alternatively, to amend by interlineation.
But Trampe had also presented evidence of exhibit 4 as
constituting part of the written lease agreement, which had not
been pled. And a subsequent hearing was held on November
30, 2017, after TNT filed a motion seeking to amend its com-
plaint to conform to the evidence that there were two writings
forming the lease agreement instead of one. The proposed
amended complaint still named Fife in her individual capacity
as the only defendant.
Fife objected to the amended complaint on the ground of
unfair surprise. The court allowed the amended complaint, but
also allowed Fife to file an amended answer and counterclaim.
Further, the court allowed the evidence to be reopened and held
a continuation of the trial on November 30, 2017.
In her amended answer, Fife affirmatively alleged that the
Fife farm “is owned by the [Fife trust] and that the trustee of
said trust is . . . Fife.” She did not change the allegation in her
counterclaim that “[Fife] is the owner of the real estate . . . .”
The court explicitly recognized both the amended complaint
and the amended answer and counterclaim, explaining that the
case was to “proceed on those documents at this point.”
Neither the parties nor the judge discussed at the continua-
tion of trial the fact that the operative answer alleged that the
Fife trust owned the Fife farm and that Fife was no longer
bound by her statements in the prior pleadings. TNT did not
assert that any statement in Fife’s amended answer was a judi-
cial admission.
While Fife testified at the reopened trial telephonically,
no further testimony was adduced pertaining to who or what
entities would be directly affected by the judgment. Rather,
Fife reiterated that when she asked Trampe for a copy of their
agreement, Trampe sent her only exhibit 1. Fife also submitted
evidence that the document found in exhibit 1 was the only
document filed with the U.S. Department of Agriculture Farm
Service Agency in June 2017.
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304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
There was no motion by Fife to dismiss for lack of an indis-
pensable party, and there was no attempt by TNT to join in the
action Fife in her capacity as trustee.
6. Order of December 2017
The court issued its order on liability in December 2017.
In the prior hearing on temporary injunctive relief under the
original complaint, the court had determined that the lease
reflected in exhibit 1 was ambiguous. The court reiterated that
determination in its December 2017 order deciding the ques-
tions of permanent injunctive relief, declaratory judgment, and
breach of contract.
In determining Fife’s liability, the court considered the evi-
dence admitted at the three hearings on May 31, July 26, and
November 30, 2017. The court opined that both Trampe and
Fife were “poor historians,” but that Trampe’s recollection of
events was clearer than Fife’s. Thus, the court found “generally
that . . . Trampe’s recollection of events is the more credible.”
The court considered exhibit 4 as an “additional docu-
ment memorializing the lease agreement of the parties” and
found that because exhibit 4 was partially prepared by Fife
and both parties executed exhibit 1, “[b]oth are responsible
for any ambiguity and lack of clarity that arises from these
two documents.”
The court ultimately concluded that it was “clear . . . that
it was the parties’ intention that the lease period would run
from January 2007 until December 2017, an eleven-year farm
lease.” Further, the court rejected Fife’s contention that the
11-year lease was terminated by virtue of the subsequent
agreement to produce organic alfalfa on the Fife farm. In this
regard, the court noted that Fife had relied on the 10-year
language in exhibit 1 in asserting that TNT’s tenancy was due
to end. Thus, the court concluded that Fife had breached the
lease agreement.
In its order, the court did not consider the question of when
exactly the breach had occurred and whether any indispensable
parties were missing from the action. The court appeared to
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304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
find that Fife was simultaneously the owner of the Fife farm
and not the owner of it:
Fife is a resident of the State of Washington who owns
agricultural land located within Section 26, Township
10, Range 17 West of the 6th P.M. in Buffalo County,
Nebraska. [Fife] purchased this land in her own name on
January 20, 2003 from the Richard J. Cook Family Trust
which she was then serving as Co-Trustee (Exhibit No.
5). She has since transferred this land to her own fam-
ily trust.
(Emphasis supplied.)
The court found that by the time of the order, injunctive
relief was moot. The court found in favor of TNT on its causes
of action for declaratory relief and breach of contract, and the
case proceeded for a determination of damages.
7. Damages
The joint pretrial conference memorandum clarified that the
hearing was to determine the amount of damages sustained as
a result of the loss of the hay crop that would have been har-
vested from the Fife farm during the 2017 crop year. Trampe
had previously testified that he had last harvested alfalfa from
the Fife farm in the fall of 2016.
(a) Yield and Market Value
At the trial on damages, Trampe testified that he had been
farming alfalfa and other crops for approximately 40 years.
Trampe testified that in his experience in farming alfalfa on
the type of ground that the Fife farm consisted of, the normal
range of expected production would be 8 to 10 tons per acre
on irrigated land and around 5 tons on dryland. Production
on the Fife farm was close to average, though “it might have
been a touch lower because it was new hay.” Trampe testified
that he farmed 29.14 dry acres on the Fife farm and 130.8
“irrigated acres.” Approximately 86 of the irrigated acres
were irrigated by the pivot, while the remaining 44 certified
irrigated acres had been irrigated through a gravity irrigation
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system. Trampe, however, did not irrigate those acres in 2015
and 2016.
TNT admitted into evidence receipt for the sale on January
24, 2017, of some alfalfa that had been grown in 2016 from
different harvests. It was not all of the crop he had grown and
harvested in 2016. He received $85 per ton. At the hearing for
a temporary injunction, Trampe had said that he fed 90 percent
of his alfalfa bales from the Fife farm to his cattle, but it was
unclear what time period Trampe was referring to. Trampe did
not sell alfalfa in 2017, because he used all his hay to feed
his cattle.
Trampe testified that he was familiar with the alfalfa hay
market in 2018, in which farmers were selling their 2017 har-
vests. Trampe said that the price of alfalfa had risen to a range
of $90 to $100 per ton.
Trampe had expected a full growing season of alfalfa to
yield an average harvest, or “cuttings,” of 8.6 tons per acre.
Trampe testified that, generally, the density and weight of the
bales increased from the first to the last cuttings of the season.
Thus, a bale from the first harvest would average 1,425 pounds,
a bale from the second harvest would average 1,475 pounds, a
bale from the third harvest would average 1,500 pounds, and a
bale from the fourth harvest would average 1,700 pounds.
A farmer in the same area who was the current tenant of the
Fife farm testified that in 2016, he had purchased from Fife
380 bales of alfalfa harvested from the Fife farm. The average
weight per bale ranged from 1,366 to 1,685 pounds. He paid
$65 per ton. He testified that prices rose the following year. In
2017, alfalfa of the sort grown on the Fife farm sold for $85
per ton.
(b) Lost Farm Program Payment
Trampe testified that every year, it was his normal practice
to apply for farm program payments by certifying the acres
each year. Trampe had always certified the acres on Fife’s
behalf through the exercise of a power of attorney she had
given him. Though there were initially complications, Trampe
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was ultimately able to receive the farm program payment for
2016. He had also received a farm program payment in 2015.
For both years, the amount of the payment was approximately
$3,460. Despite acknowledging that 2017 was governed by
a new farm bill, Trampe was unaware of any reason why he
would not have received the farm program payment for 2017
had he been allowed to farm the Fife farm that year.
(c) Expenses
(i) Seed
Trampe testified that he paid $14,300 for the alfalfa seed
that he planted in 2015.
(ii) Fertilizer
Trampe spent $8,280 on a combination of annual fertilizer
and a starter fertilizer. In 2016, Trampe hauled and spread his
own cattle’s manure onto the Fife farm as fertilizer. He did not
give an estimate as to what that fertilizer was worth, and he did
not recall what any transportation costs were. Trampe testified
that he would have fertilized the Fife farm for the 2017 crop
year, but obviously did not. A “rough guess” of the cost of fer-
tilizer was $40 to $45 per acre.
(iii) Pivot Operation
TNT paid the electric bills pertaining to the operation of
the pivot irrigation system on the Fife farm. Those bills were
$3,337.21 for 2015 and $3,424.63 for 2016. Based on his expe-
rience in 2017 farming other properties, Trampe believed that
the electric company had increased its rates between 2016 and
2017 by about 4 to 6 percent. Trampe also spent about $100
per year in drip oil for the pivot irrigation system.
(iv) Swathing, Raking, Baling,
and Loading
Trampe testified that there are a number of expenses relat-
ing to harvesting. Operating swathers, tractor-pulled rakes
and balers, and loaders requires fuel. Trampe testified that
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per harvest of the Fife farm’s 130 acres of irrigated land, he
used a 120-gallon tank of fuel to operate the swather. Raking
the same land consumed approximately 26 gallons of fuel
per harvest. Baling the same field consumed approximately
55 gallons of fuel per harvest. In addition, the netting for the
bales costs $200 a roll, with each roll wrapping about 125
bales of the 6-foot-tall bales that Trampe made. Each bale,
Trampe testified, weighed about 1,500 pounds. The loading
process required 13 or 14 gallons of fuel per harvest of the
130 irrigated acres. Two fuel bills in October 2017 demon-
strated that farm diesel was priced at approximately $2.10
and that clear diesel was priced at $2.60 per gallon. Trampe
testified that a normal farm year for alfalfa consisted of
four harvests.
A witness called by Fife who specializes in hay produc-
tion and transportation for third-party clients testified that in
2017, his business charged $15 per acre of alfalfa to swath
and rake it, $15 per bale of alfalfa to bale it, and $2 per bale
to move it to the edge of the field for the customer. The wit-
ness opined that those prices were fair and reasonable for the
Buffalo County area. The Fife farm’s current tenant testified
that he agreed that those prices were fair and reasonable for the
Buffalo County area.
(v) Vehicle and Equipment Maintenance
Trampe testified that he had to service his two tractors
approximately every 200 hours of use. In addition to the Fife
farm’s 159 acres, Trampe farmed 1,200 other acres of land. He
serviced his tractors three or four times per year at a cost of
approximately $100 per service, not including labor. Trampe
did not determine how many hours his equipment had been
used on the Fife farm versus the other acres he farmed.
Trampe also had his two balers inspected and serviced every
3 years. The balers were used only on the Fife farm and 70
acres of Trampe’s own land. He estimated that one-third of the
total usage was on the Fife farm. He had the balers serviced in
2016 for approximately $9,000.
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(d) September 2018 Order on Damages
In an order on September 24, 2018, the court found that at
the beginning of the 2017 crop year, TNT “was anticipating the
production of a crop that was just about to reach its peak pro-
ductivity.” Further, “TNT’s discovery efforts to obtain records
of alfalfa production on the Fife [f]arm during 2017 from . . .
Fife was wholly unproductive,” because Fife kept no records.
This left TNT “in the unenviable position of having to project
the anticipated yield using sources of information other than
records of the actual yield itself.”
Utilizing the testimony and evidence submitted by TNT, the
court calculated that there were 85 acres of “actually” irrigated
ground, which would have yielded 731 tons of hay (8.6 tons
per acre of expected production). Further, there were 74 acres
of nonirrigated ground that would have yielded 370 tons of hay
(5 tons per acre of nonirrigated ground).
While the court noted that Fife has admitted evidence that
her one-third crop share from the Fife farm in 2016 was only
286.55 tons, such yield was from the second year of produc-
tion, not the third year, in which a higher yield was expected.
Moreover, the court found that Fife,
having failed to produce any records whatsoever of the
actual production of hay from the Fife [f]arm in ques-
tion in 2017, a year in which the Fife [f]arm was totally
under her control cannot, in the Court’s opinion, persua-
sively argue that she is being treated unfairly if the Court
accepts . . . Trampe’s opinion as to the expected yield
in 2017.
The court found that alfalfa in 2017 was worth $85 per ton.
Thus, Trampe had shown that the 2017 farm year would have
produced a total of $93,585 in gross profits from the land.
As expenses, the court calculated $6,757.50 for fertilizer;
$100 for oil for the pivot; $3,549.96 in electricity for the pivot
(based on a 5-percent increase in rates); $1,823.28 in fuel
costs for swathing, raking, baling, and stacking; and $2,388 in
net wrap.
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The court rejected Fife’s contention that the alfalfa seed cost
should be prorated and also deducted from the damages calcu-
lation. The court explained:
TNT . . . sustained this one-time seed expense expecting
receipt of the benefit of this investment over the entire
productive life of this perennial crop. . . . Fife’s termina-
tion of the lease a year early in 2017, not only damaged
TNT . . . in its loss of profits in 2017, but kept it from
recovering the benefits of its seed investment over the
full cycle in which this perennial crop would have been
expected to produce economically harvestable hay. . . .
Its seed cost/investment amounted to a one-time over-
head expense. It should not be subjected to further loss
in 2017 by charging it with prorated portion of this over-
head again.
The court also rejected Fife’s argument that Trampe’s costs
should include costs of transporting machinery to and from the
Fife farm and of transporting alfalfa to market or to Trampe’s
land to feed his cattle and that the failure to adduce evidence of
transportation costs rendered any damages calculation specula-
tive. The court explained that transportation costs between the
Fife farm and Trampe’s cattle operation a short distance away
was part of the expected overhead of the cattle operation and
that there was no evidence that cost was saved in 2017 rather
than used to raise, harvest, or transport other feed or hay.
Whatever transportation costs Trampe would have incurred
had likely actually been incurred: “The cost of transporting the
replacement feed it used in 2017 has already been paid.”
Relying on ACI Worldwide Corp. v. Baldwin Hackett &
Meeks,1 the court found that fixed overhead expenses, such as
TNT’s costs to inspect and maintain its equipment over the full
breadth of its farm operations, need not be deducted from gross
income to arrive at the net profit properly recoverable.
1
ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896
N.W.2d 156 (2017).
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Thus, deducting a total of $14,518.74 in expenses from
TNT’s two-thirds share in the 2017 expected profits, the court
found a total loss of net profits in the amount of $47,821.26.
The court then added $3,461 in the lost 2017 farm program
payment. The court explained that at the time of the trial on
damages, the federal farm program benefits for 2017 had not
yet been calculated by the U.S. Department of Agriculture
Farm Service Agency, but “there is nothing to suggest that
Congress will change the existing farm program.”
The court awarded TNT a total of $51,332.26 in damages,
plus costs. Following the court’s denial of her motion for new
trial, Fife timely appealed.
III. ASSIGNMENTS OF ERROR
Fife assigns that the trial court erred in (1) awarding TNT
a money judgment against her when she did not own the
Fife farm and was not the landlord, (2) failing to find that
the written lease agreement was terminated and became a
year-to-year oral lease agreement beginning in 2015 and thus
was properly terminated by written notice, (3) determining
that the written lease agreement was for 11 years rather than
10 years, and (4) awarding $51,332.26 based upon specula-
tive evidence.
IV. STANDARD OF REVIEW
[1] An action for declaratory judgment is sui generis; whether
such action is to be treated as one at law or one in equity is to
be determined by the nature of the dispute.2
[2] In appellate review of an action for a declaratory judg-
ment in a law action, factual findings by the trier of fact will
not be set aside unless such findings are clearly erroneous.3
2
American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807
N.W.2d 492 (2011).
3
State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 445
N.W.2d 284 (1989).
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[3] An action for breach of a lease agreement is an action
at law.4
[4] Factual findings in a court’s determination of a factual
challenge to subject matter jurisdiction are reviewed under a
clearly erroneous standard.5
V. ANALYSIS
1. Indispensable Party Question
[5] We first address the threshold question of whether
TNT’s action lacked an indispensable party. Fife asserts that
the evidence was undisputed that the Fife farm had been trans-
ferred to the Fife trust by the time of the alleged breach. Thus,
Fife asserts that in her capacity as trustee, she was an indis-
pensable party to TNT’s action for damages and declaratory
judgment based on breach of contract and the court lacked
jurisdiction over TNT’s claims when she was named only in
her individual capacity. An indispensable party to a suit is
one whose interest in the subject matter of the controversy is
such that the controversy cannot be finally adjudicated with-
out affecting the indispensable party’s interest, or which is
such that not to address the interest of the indispensable party
would leave the controversy in such a condition that its final
determination may be wholly inconsistent with equity and
good conscience.6
[6] Neb. Rev. Stat. § 25-323 (Reissue 2016) mandates that
indispensable parties be joined in an action, stating in relevant
part that “when a determination of the controversy cannot be
had without the presence of other parties, the court must order
4
See, Caeli Assoc. v. Firestone Tire & Rubber Co., 226 Neb. 752, 415
N.W.2d 116 (1987); Quinn v. Godfather’s Investments, 213 Neb. 665, 330
N.W.2d 921 (1983).
5
See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
6
Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894
N.W.2d 221 (2017).
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them to be brought in.”7 Section 25-323 deprives a court of the
authority to determine a controversy absent all indispensable
parties and cannot be waived.8
[7] The burden of procuring the presence of all indispen­
sable parties is on the plaintiff.9 This burden is similar to the
burden to establish other factual matters that the court’s subject
matter jurisdiction depends upon.10 The party invoking the
court’s jurisdiction ordinarily has the burden of proving by a
preponderance of the evidence the necessary facts for subject
matter jurisdiction.11
Fife and TNT disagree as a factual matter whether the Fife
farm belonged to the Fife trust when the events occurred that
TNT sought to litigate. The relevant time period for the cause
of action for breach of contract and declaratory relief tried
below is when the breach occurred.12 Though TNT originally
pled injunctive relief, that claim was moot by the time of trial
and the case was tried as an action at law under the alleged
lease contract.
[8,9] Ordinarily, there is no breach until the time for per­
formance.13 While TNT’s operative complaint alleged antici-
patory breach, such was not the theory upon which the case
was tried. An anticipatory breach of contract is one commit-
ted before the time has come when there is a present duty of
7
See id. See, also, Neb. Rev. Stat. § 25-21,159 (Reissue 2016).
8
See Midwest Renewable Energy v. American Engr. Testing, supra note 6.
9
See Pestal v. Malone, 275 Neb. 891, 750 N.W.2d 350 (2008).
10
See, Jacobs Engr. Group v. ConAgra Foods, supra note 5; Rozsnyai v.
Svacek, 272 Neb. 567, 723 N.W.2d 329 (2006). But see Davis v. State, 297
Neb. 955, 902 N.W.2d 165 (2017).
11
See 61A Am. Jur. 2d Pleading § 506 (2010).
12
See Hooker and Heft v. Estate of Weinberger, 203 Neb. 674, 279 N.W.2d
849 (1979).
13
See, Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519
(2002); Phipps v. Skyview Farms, 259 Neb. 492, 610 N.W.2d 723 (2000);
1 Howard O. Hunter, Modern Law of Contracts, § 12:1 (2019).
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performance and is the outcome of words or acts evincing an
unequivocal repudiation of the contract.14 This is distinguish-
able from a disagreement about the interpretation or meaning
of a term in a contract.15 When there is an anticipatory breach,
the promisee has the option to treat the contract as ended
so far as further performance is concerned and maintain an
action immediately rather than await the promisor’s time for
performance.16 TNT did not cease to pay rent and sue Fife
immediately when it became apparent that they disagreed as
to the meaning of the duration terms of their lease agreement.
Rather, TNT sued Fife after she gave notice of eviction, and
the trial commenced after Fife had evicted TNT. The case was
tried on the ground that by evicting TNT, Fife had breached
the implied term of quiet enjoyment that was part of her
ongoing duty of performance under a lease term that had not
yet ended.
[10,11] TNT does not contest that the operative period of
time for the action was the eviction in December 2016, but
points out that the district court found by judicial admis-
sion that the Fife farm still belonged to Fife in her indi-
vidual capacity in December 2016. At TNT’s request, the
court had acknowledged from Fife’s original answer and
14
See, Weber v. North Loup River Pub. Power, 288 Neb. 959, 854 N.W.2d
263 (2014); Chadd v. Midwest Franchise Corp., 226 Neb. 502, 412
N.W.2d 453 (1987).
15
See, Hughes v. Cornhusker Cas. Co., 235 Neb. 656, 456 N.W.2d 765
(1990); 1 Hunter, supra note 13. See, also, Mobley v. N. Y. Life Ins. Co.,
295 U.S. 632, 55 S. Ct. 876, 79 L. Ed. 1621 (1935); Trans Union Credit
Info. v. Assoc. Credit Services, 805 F.2d 188 (6th Cir. 1986); American
Hosp. Supply v. Hospital Products Ltd., 780 F.2d 589 (7th Cir. 1986);
Pacific Coast Eng. Co. v. Merritt-Chapman & Scott Corp., 411 F.2d 889
(9th Cir. 1969); Lowenstein v. Federal Rubber Co., 85 F.2d 129 (8th Cir.
1936); Kimel v. Missouri State Life Ins. Co., 71 F.2d 921 (10th Cir. 1934);
17A Am. Jur. 2d Contracts § 686 (2016).
16
See Hooker and Heft v. Estate of Weinberger, supra note 12. See, also, 23
Richard A. Lord, A Treatise on the Law of Contracts by Samuel Williston
§ 63:33 (4th ed. 2018).
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counterclaim to the original complaint a judicial admission
that she “owned” the Fife farm as an individual. Fife testi-
fied at the trial that she had transferred the Fife farm to the
Fife trust in September 2016, but the court had originally
refused to consider this testimony that contradicted her judi-
cial admission. A party may at any and all times invoke the
language of his opponent’s pleadings on which the case is
being tried on a particular issue as rendering certain facts
indisputable.17 The pleadings in a cause are not a means of
evidence, but a waiver of all controversy, so far as the oppo-
nent may desire to take advantage of them, and therefore, a
limitation of the issues.18
However, after the court acknowledged as judicial admis-
sions Fife’s statements in her original pleadings, it allowed
TNT to amend its complaint. The court also permitted Fife to
amend her answer. When she did so, she no longer admitted
to TNT’s allegation that she owned the Fife farm. Rather, in
her amended answer, Fife affirmatively alleged that the Fife
farm was owned by the Fife trust. The court then reopened
and continued the trial in which Fife had testified that she had
transferred the Fife farm into the Fife trust.
[12,13] Statements in pleadings remain binding only until
the pleading is amended.19 Matters contained in superseded
pleadings are simple admissions that are admissible as evi-
dence of the facts alleged therein and may be introduced and
considered the same as any other evidence.20 Such original
pleading is not conclusive evidence, but competent, as any
other admission of a party against interest, and should be given
such weight as the trier of fact deems it entitled in the light of
17
See Cook v. Beermann, 201 Neb. 675, 271 N.W.2d 459 (1978).
18
See Prime Home Care v. Pathways to Compassion, 283 Neb. 77, 809
N.W.2d 751 (2012).
19
See American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir.
1988).
20
See, Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754
N.W.2d 406 (2008); Cook v. Beermann, supra note 17.
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the pleader’s explanation, if any, of the circumstances under
which the admissions were made.21
At no point after Fife’s original answer and counterclaim
were superseded did TNT offer them into evidence as an
ordinary admission to be weighed in considering the ques-
tion of the ownership of the Fife farm as of September 2016.
Since TNT did not offer the original answer or counterclaim
as evidence to be considered in the continuation of the trial
under the amended pleadings, Fife’s testimony that the Fife
farm was owned by the Fife trust as of September 2016
was undisputed.
[14] It is true that the amended counterclaim remained
unchanged insofar as it stated the “defendant” was the owner
of the subject real estate, but TNT did not seek to rely on the
amended counterclaim as either a simple admission or a judi-
cial admission. The consideration of admissions is at the option
of the opposing party.22 Furthermore, this statement in the
amended counterclaim in the context of the amended answer to
which it was attached did not qualify as a judicial admission.
A judicial admission does not extend beyond the intendment
of the admission as clearly disclosed by its context23 and must
be unequivocal, deliberate, and clear, and not the product of
mistake or inadvertence.24 In light of the clear statement in the
amended answer that the Fife farm had been transferred to the
Fife trust, the unchanged statement in the counterclaim that
“[d]efendant is” the owner of the Fife farm was not unequivo-
cal, deliberate, and clear, but instead appears to be the product
of mistake or inadvertence.
The district court did not ultimately find as a factual mat-
ter that Fife continued to own the Fife farm. It is true that the
21
Johnson v. Griepenstroh, 150 Neb. 126, 33 N.W.2d 549 (1948).
22
See, Prime Home Care v. Pathways to Compassion, supra note 18; Cook
v. Beermann, supra note 17.
23
Cervantes v. Omaha Steel Castings Co., 20 Neb. Ct. App. 695, 831 N.W.2d
709 (2013).
24
Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 (2018).
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court stated in its order that Fife “is” a Washington resident
who “owns” the Fife farm, but it also found that “[s]he has
since transferred this land to her own family trust.” The con-
fusing nature of the verb tenses notwithstanding, it appears the
court found that at some unspecified point in time before its
order, the ownership of the Fife farm was transferred to the
Fife trust. This finding was not clearly erroneous.
The question thus becomes whether Fife is correct that
because she no longer owned the Fife farm when she evicted
TNT, and was allegedly acting instead in her capacity as sole
trustee for the Fife trust, which owned the land at that time,
Fife in her capacity as trustee was an indispensable party to
TNT’s action. We conclude that Fife in her capacity as trustee
of the Fife trust was not an indispensable party.
At the time of the breach, the lease implicated principles of
both privity of contract and privity of estate.25 Fife relies on
our statements in other contexts that a suit must be brought
by or against a person or persons who have an interest in
the property and will be affected by the order of the court26
and that parties to whom or from whom contractual obliga-
tions are jointly owed are indispensable parties to actions
concerning contractual obligations.27 These propositions are
inapposite to the case at bar. The transfer of the Fife farm to
the Fife trust meant that privity of estate was transferred to
the Fife trust, while privity of contract remained with Fife
as the individual who entered into the lease agreement with
TNT. Privity of contract is not transmitted to the purchaser of
a leasehold.28
25
See Brick Development v. CNBT II, 301 Neb. 279, 918 N.W.2d 824 (2018).
26
See Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).
27
See, Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991);
Wolfenbarger v. Britt, 105 Neb. 773, 181 N.W. 932 (1921); Harker v.
Burbank, 68 Neb. 85, 93 N.W. 949 (1903); Council Bluffs Savings Bank v.
Griswold, 50 Neb. 753, 70 N.W. 376 (1897); Bowen v. Crow, 16 Neb. 556,
20 N.W. 850 (1884).
28
Brick Development v. CNBT II, supra note 25.
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[15,16] A transferor of an interest in leased property, who
immediately before the transfer is obligated to perform an
express or implied promise of the lease resting on privity
of contract, continues to be obligated after the transfer.29
Specifically, a landlord who has transferred his or her inter-
est in the land remains liable under a lease agreement, on the
implied promise of quiet enjoyment, for disturbances of the
tenant by the former landlord himself or herself or by some-
one whose conduct is attributable to the former landlord.30 It
was under this theory that the case was tried. The evidence
presented was that Fife held herself out as an individual with
authority to evict TNT from the land, causing TNT to vacate
the Fife farm, thereby breaching Fife’s implied promise, as an
individual, not to disturb TNT’s right to quiet enjoyment for
the duration of the lease period.
Although a covenant of continuing quiet enjoyment would
run with the land under privity of estate to the Fife trust as the
new owner of the Fife farm, the alleged act of eviction by Fife
in her individual capacity was not an act of joint liability with
Fife in her official capacity. Neither does the judgment against
Fife in her individual capacity affect the person or persons who
have an interest in the property since its transfer into the Fife
trust. The transferor landlord is liable under privity of con-
tract for the transferor’s acts interfering with quiet enjoyment,
while the transferee landlord is liable under privity of estate
for the transferee’s acts interfering with quiet enjoyment.31 The
determination of one does not affect the interests of the other,
nor would it leave the controversy in such a condition that its
final determination may be wholly inconsistent with equity and
good conscience.32
29
See 2 Restatement (Second) of Property: Landlord and Tenant §§ 16.1 and
16.3 (1977).
30
See 2 Restatement (Second), supra note 29, § 16.3.
31
See id.
32
See Midwest Renewable Energy v. American Engr. Testing, supra note 6.
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304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
The present situation is admittedly unique because the trans-
feror and the agent of the transferee are the same person in
different capacities. And it is true that a principal is under a
duty to reimburse its agent for payment of damages which the
agent is required to make to a third person on account of the
authorized performance of an act which constitutes a tort or
breach of contract. But the trial below did not litigate whether
Fife was secretly acting in her authorized capacity on behalf of
the Fife trust when she evicted TNT.
In sum, Fife is correct that she demonstrated she did not
personally own the Fife farm when the breach occurred that
formed the basis for TNT’s action. Nevertheless, under priv-
ity of contract, she was a proper defendant in TNT’s action
for breach of contract and related declaratory judgment action
stemming from her act of evicting TNT. Fife in her capac-
ity as trustee of the Fife trust was not an indispensable party
regardless of whether Fife can later prove that she was, undis-
closed to TNT, acting at the time of the eviction on behalf of
the Fife trust. The lower court had jurisdiction to issue the
challenged judgment. We turn next to the underlying merits
of the appeal.
2. Underlying Merits
Fife argues on appeal that the district court erred in con-
cluding that the lease agreement was for 11 years, ending in
December 2017, instead of concluding that it was for 10 years,
ending in December 2016. Alternatively, Fife asserts the dis-
trict court erred by failing to conclude that the written long-
term lease had been rescinded due to an oral modification and
that the parties were operating under an oral year-to-year lease
at the time of the alleged breach.
[17,18] Where the terms of a written lease appear to be
ambiguous and uncertain as to the intended length of the
tenancy or the beginning or end of the term, then, as in other
cases of ambiguity, parol evidence may properly be resorted
to for the purpose of resolving the uncertainty and explaining
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TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
the parties’ true intentions in that respect.33 Further, instru-
ments made in reference to and as part of the same transaction
are to be considered and construed together.34
Fife argues that the court’s conclusion that the lease agree-
ment was for 11 years was the result of improperly consider-
ing exhibits 3 and 4 together with exhibit 1. But Fife does not
assign and argue as error that exhibits 3 and 4 were improp-
erly admitted, and an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error to be considered by an appellate court.35
Fife merely offers the conclusory statement that “[t]he
court’s consideration of Exhibit 3 and Exhibit 4 was improper
in light of the testimony of [Trampe]” that it was his intention
that the farm lease would last for 10 years.36 Fife has taken this
testimony out of context. Trampe testified that he understood
that the 10 years would begin once the irrigation pivot was in
place, which was not until 2008.
[19] Exhibit 4, which was signed by both Fife and TNT,
provided unambiguously that the lease agreement was until
December 2017. Exhibit 1 is less clear in its statement that
the “lease period will go from January 2007 until December
2017 a ten year period,” and this phrase renders the agree-
ment embodied by the two documents ambiguous. When a
document is ambiguous, it is for the trier of fact to determine
the intent of the parties from all the facts and circumstances,
and such findings will be upheld on appeal unless they are
clearly erroneous.37
33
See, Nebraska Depository Inst. Guar. Corp. v. Stastny, 243 Neb. 36, 497
N.W.2d 657 (1993); Annot., 151 A.L.R. 279 (1944).
34
Norwest Corp. v. State, 253 Neb. 574, 571 N.W.2d 628 (1997).
35
State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).
36
Brief for appellant at 18.
37
See Hensman v. Parsons, 235 Neb. 872, 458 N.W.2d 199 (1990). See,
also, e.g., Wurst v. Blue River Bank, 235 Neb. 197, 454 N.W.2d 665
(1990).
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304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
The district court’s finding that the parties intended the lease
to end in December 2017 was not clearly erroneous. The court
found that Trampe’s recollection of events was more credible
than Fife’s, and Trampe testified that it was their intent for the
lease to end in December 2017. The documents read together
also support the district court’s conclusion that TNT and Fife
intended the lease to end in December 2017. The “December
2017” end date is consistent with the December 2017 end
date specified in exhibit 4, and it is the more specific term
in exhibit 1 that controls over the characterization of “a ten
year period.”38
[20,21] Likewise, we find no error in the district court’s
conclusion that the parties did not intend to rescind their long-
term lease agreement ending in December 2017 when they
orally agreed in 2015 to change their arrangement with regard
to the crops to be grown by TNT on the Fife farm. Rescission
of contract means to abrogate, annul, avoid, or cancel a con-
tract; particularly, nullifying a contract by the act of a party.39
A “rescission” amounts to the unmaking of a contract.40 The
cancellation, abandonment, or rescission of a written contract
may not only be written, but it may also be oral.41 As opposed
to rescission, a modification continues the original contract
with some changes.42 The terms of a written executory contract
may be changed by a subsequent parol agreement prior to any
breach of such contract.43
38
See Hans v. Lucas, 270 Neb. 421, 703 N.W.2d 880 (2005).
39
Hoeft v. Five Points Bank, 248 Neb. 772, 539 N.W.2d 637 (1995).
40
Id.
41
Davco Realty Co. v. Picnic Foods, Inc., 198 Neb. 193, 252 N.W.2d 142
(1977).
42
See 2A David Frisch, Lawrence’s Anderson on the Uniform Commercial
Code § 2-209:59 (3d ed. 2013).
43
Atokad Ag. & Racing v. Governors of Knts. of Ak-Sar-Ben, 237 Neb. 317,
466 N.W.2d 73 (1991), overruled on other grounds, Eccleston v. Chait,
241 Neb. 961, 492 N.W.2d 860 (1992).
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304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
[22,23] In determining whether a rescission took place,
courts look not only to the language of the parties but to all the
circumstances.44 Mutual rescission of a contract must be clear,
positive, unequivocal, and decisive, and it must manifest the
parties’ actual intent to abandon their contract rights.45
Fife did not present clear and unequivocal evidence that she
and Trampe intended to abandon all rights under the written
long-term lease agreement. Trampe testified that he would not
have agreed to invest in planting organic alfalfa without the
assurance under the written lease that he had three full crop
years to recoup his investment. Further, Fife relied on the “ten
year” language of the long-term lease agreement when giving
TNT notice of termination. The district court correctly found
the evidence demonstrated that Trampe and Fife intended to
orally modify their long-term written lease agreement to change
the crops grown and their respective shares and expenses and
that they intended to leave unchanged the other provisions of
their agreement, including its duration.
It is undisputed that Fife evicted TNT in December 2016,
prior to the December 2017 end date of the lease agreement.
She sent Trampe a letter warning him that if he did not vacate
the Fife farm by December 31, 2016, he would be considered
trespassing. TNT accordingly removed its possessions and
ceased operations on the Fife farm by that time. The district
court did not err in finding that Fife thereby breached the
lease agreement.
3. Damages
Fife argues that even if the court were correct in finding her
liable, it erred in the amount of damages awarded. She gener-
ally asserts in this regard that the award of $51,332.26 was
based on speculative evidence. We disagree.
44
Hoeft v. Five Points Bank, supra note 39.
45
17B C.J.S. Contracts § 585 (2011).
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304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
[24,25] In a breach of contract case, the ultimate objective
of a damages award is to put the injured party in the same
position the injured party would have occupied if the contract
had been performed, that is, to make the injured party whole.46
One injured by a breach of contract is entitled to recover all its
damages, including the gains prevented as well as the losses
sustained, provided the damages are reasonably certain and
such as might be expected to follow the breach.47
[26-28] While damages need not be proved with mathemati-
cal certainty, neither can they be established by evidence which
is speculative and conjectural.48 Uncertainty as to the fact of
whether damages were sustained at all is fatal to recovery, but
uncertainty to amount is not if the evidence furnishes a rea-
sonably certain factual basis for computation of the probable
loss.49 The amount of damages to be awarded is a determina-
tion solely for the fact finder, and the fact finder’s decision will
not be disturbed on appeal if it is supported by the evidence
and bears a reasonable relationship to the elements of the dam-
ages proved.50
In evaluating the evidence of damages in this case, the court
noted that although Fife and her new tenant had harvested in
2017 the alfalfa planted by TNT, TNT’s discovery efforts to
obtain records of the alfalfa production on the Fife farm in 2017
were wholly unproductive. This left TNT “in the unenviable
position of having to project the anticipated yield using sources
of information other than records of the actual yield itself.”
46
Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d
249 (2011).
47
Id.
48
Id.
49
Sack Bros. v. Great Plains Co-op, 260 Neb. 292, 616 N.W.2d 796 (2000);
Union Ins. Co. v. Land and Sky, Inc., 253 Neb. 184, 568 N.W.2d 908
(1997).
50
Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d
433 (2010).
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Nebraska Supreme Court Advance Sheets
304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
Fife takes issue with TNT’s proof in its efforts at making
such projections. First, Fife asserts that the district court erred
by accepting Trampe’s testimony that TNT would have pro-
duced 1,101 tons of alfalfa had he been allowed to stay on the
land for the 2017 crop year. Fife argues that the district court
erred by accepting Trampe’s testimony “based solely upon
[his] farming experience without foundation for the opinion.”51
However, Fife did not object to this testimony during the trial.
A litigant’s failure to make a timely objection waives the right
to assert prejudicial error on appeal.52 It was not unreasonable
for the court to accept Trampe’s calculation over the evidence
submitted by Fife of the yield produced on the Fife farm in
2016, when, in 2016, the alfalfa crop was only in its second
year of production, and Trampe testified that the second year
of production would ordinarily produce a smaller yield than
the third year of production.
Second, Fife asserts that the court erred in applying alfal-
fa’s 2017 market value to the damages calculation, because
Trampe testified that in 2017, he fed all the alfalfa he pro-
duced on other farmland to his cattle. According to Fife,
because he fed alfalfa to his cattle, it was necessary for
Trampe to present evidence “as to the economic impact
feeding one’s own alfalfa has on the impact of his cattle
production.”53 Fife does not explain why the absence of such
evidence rendered the damages calculation speculative. We
find that it was not unreasonable for the district court to
base damages on the lost market value of the lost crops,
whether or not Trampe would have fed the 2017 alfalfa yield
to his cattle.
Third, Fife asserts that the district court did not properly
deduct from its damages calculation the costs of production,
specifically, seed costs and transportation costs. The seed costs
51
Brief for appellant at 20.
52
Ford v. Estate of Clinton, 265 Neb. 285, 656 N.W.2d 606 (2003).
53
Brief for appellant at 21.
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TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
were incurred in 2015, but Fife argues that the court should
have prorated that expense over the 3 years that remained of the
lease from the time of the modification to organic alfalfa. The
district court rejected this argument, reasoning that prorating the
seed expense would exacerbate the loss to TNT resulting from
the premature eviction that prevented TNT from recovering the
benefits of its one-time seed investment over the expected 3-year
alfalfa cycle. We find no error in this determination.
Likewise, the court’s failure to deduct the transportation
costs was not unreasonable. As the district court noted, those
costs were incurred as part of TNT’s normal overhead for its
cattle operation, and the cost of transporting replacement feed
used in 2017 had already been paid by TNT. There was no
evidence that transportation costs were saved rather than used
to raise and transport replacement feed. Such fixed overhead
expenses need not be deducted from gross income to arrive at
the net profit properly recoverable.54
Lastly, Fife asserts that the court erred by adding to TNT’s
damages calculation the lost benefit of his anticipated 2017
farm subsidy. Fife points out that the subsidy had not yet been
approved at the time of trial. Trampe testified, however, that
TNT’s application for the subsidy had been approved in all
the prior years on the Fife farm. It was not unduly speculative
and conjectural for the court to conclude that TNT would have
received this subsidy in 2017 as well.
We find no merit to Fife’s contention that the amount of the
district court’s damages award was based on speculative and
conjectural evidence. Rather, the district court’s decision was
supported by the evidence and bore a reasonable relationship
to the elements of the damages proved.
VI. CONCLUSION
The district court did not lack jurisdiction over the action
brought by TNT against Fife solely in her individual capacity.
54
See ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 1.
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304 Nebraska Reports
TNT CATTLE CO. v. FIFE
Cite as 304 Neb. 890
We affirm the district court’s judgment finding that the lease
agreement between Fife and TNT was for a period of 11 years,
that the agreement was not rescinded by the parties’ modifica-
tion in 2015 of the crops to be grown on the land, and that TNT
suffered $51,332.26 in damages as a result of Fife’s evicting
TNT from the Fife farm a year early.
Affirmed.