Stitch Ranch v. Double B.J. Farms ( 2013 )

Decisions of the Nebraska Court of Appeals
328 21 NEBRASKA APPELLATE REPORTS
order changing Montana’s placement from Ann’s home to a
different foster home and that such order is in Montana’s best
interests. Accordingly, we affirm.
Affirmed.
Stitch R anch, LLC, appellee and cross-appellant,
v. Double B.J. Farms, I nc., appellant
and cross-appellee.
___ N.W.2d ___
Filed October 1, 2013. No. A-12-547.
1. Contracts: Parties: Intent. To create a contract, there must be both an offer and
an acceptance; there must also be a meeting of the minds or a binding mutual
understanding between the parties to the contract.
2. ____: ____: ____. A fundamental and indispensable basis of any enforceable
agreement is that there be a meeting of the minds of the parties as to the essential
terms and conditions of the proposed contract.
3. ____: ____: ____. A binding mutual understanding or meeting of the minds suf-
ficient to establish a contract requires no precise formality or express utterance
from the parties about the details of the proposed agreement; it may be implied
from the parties’ conduct and the surrounding circumstances.
4. Contracts: Parties. In limited circumstances, the parties’ failure to specify an
essential term does not prevent the formation of a contract.
5. ____: ____. The actions of the parties may show conclusively that they have
intended to conclude a binding agreement, even though one or more terms are
missing or are left to be agreed upon.
6. ____: ____. Sometimes, a court can ascertain the meaning of a party’s promise by
referring to the parties’ course of dealing with each other, or a general reasonable-
ness standard.
7. Breach of Contract: Parties: Intent. The circumstances must show that the
parties manifested an intent to be bound by a contract. Their manifestations are
usually too indefinite to form a contract if the essential terms are left open or are
so indefinite that a court could not determine whether a breach had occurred or
provide a remedy.
8. Contracts. It is a fundamental rule that in order to be binding, an agreement
must be definite and certain as to the terms and requirements. It must identify
the subject matter and spell out the essential commitments and agreements with
respect thereto.
9. Contracts: Intent: Words and Phrases. A mutual mistake is a belief shared by
the parties, which is not in accord with the facts.
10. ____: ____: ____. A mutual mistake is one common to both parties in reference
to the instrument, with each party laboring under the same misconception about
the instrument.
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 329
Cite as 21 Neb. App. 32811. ____: ____: ____. A mutual mistake exists where there has been a meeting of the
minds of the parties and an agreement actually entered into, but the agreement in
its written form does not express what was really intended by the parties.
12. Rescission. Relief by way of rescission of a contract may be warranted on the
basis of a unilateral mistake when the mistake is of so fundamental a nature that
it can be said that the minds of the parties never met and that the enforcement of
the contract as made would be unconscionable.
13. ____. An instrument may be canceled on the ground of a mistake of fact where
the parties entered into a contract evidenced by a writing, but owing to a mistake
their minds did not meet as to all essential elements of the transaction.
Appeal from the District Court for Dawson County: James E.
Doyle IV, Judge. Affirmed.
Patrick J. Nelson, of Law Office of Patrick J. Nelson,
L.L.C., for appellant.
Stephen D. Mossman and Joshua E. Dethlefsen, of Mattson,
Ricketts, Davies, Stewart & Calkins, for appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
Irwin, Judge.
I. INTRODUCTION
Stitch Ranch, LLC (Stitch), and Double B.J. Farms, Inc.
(DBJ), entered into a contract for the transfer of real property
in Dawson County, Nebraska. The contract included a provi-
sion requiring Stitch to obtain a “feedlot permit” on the prop-
erty and to assign the permit to DBJ. A dispute arose between
the parties concerning what was required to satisfy the “feedlot
permit” provision, and the parties never completed closing.
Stitch eventually brought suit, alleging breach of contract
and seeking monetary damages, a declaratory judgment, and/
or rescission or cancellation of the contract. The district court
ultimately concluded that each party had attached reasonable
but materially different meanings to the term “feedlot permit,”
characterized the issue as one of “mistake,” and ordered the
contract canceled.
DBJ now appeals, asserting, among other things, that the
district court erred in finding that the parties attached different
meanings to the term “feedlot permit,” in finding that there
was a “mistake,” and in canceling the contract. We find that
Decisions of the Nebraska Court of Appeals
330 21 NEBRASKA APPELLATE REPORTS
the evidence adduced by the parties demonstrates that there
was never any meeting of the minds about the term “feed-
lot permit,” and we affirm the district court’s cancellation of
the contract.
II. BACKGROUND
1. R elevant Parties and Individuals
(a) Stitch and Triple 7, Inc.
Stitch is a Texas limited liability company. Its members
are Ashley C. Maloley, individually, and Ashley C. Maloley,
as custodian for Grace E. Maloley. Ashley’s husband, Phil
Maloley, is not a member of Stitch.
Triple 7, Inc., is a Nebraska corporation. Phil is the president
of Triple 7. Ashley holds “one or more offices” in Triple 7.
Phil testified at trial concerning the relationship between
Stitch and Triple 7. He testified that Stitch owns property,
while Triple 7 owns and runs cattle on Stitch property. He
testified that “all the bills go through” Triple 7. Phil testified
that he and Ashley jointly make all decisions concerning both
Stitch and Triple 7.
(b) DBJ
DBJ is a corporation. Brian Johnson is the president of DBJ.
Brian and his wife, along with his brother Blake Johnson and
Blake’s wife, are the shareholders in the corporation. Brian
testified that all four of them jointly make decisions for DBJ.
2. R eal Estate Sale Contract
In October 2010, Stitch and DBJ executed a real estate sale
contract concerning real property in Dawson County and Phelps
County, Nebraska. Pursuant to the contract, DBJ agreed to pay
$1,200,000, including an earnest money deposit of $50,000.
DBJ agreed to deliver the balance of the purchase price at clos-
ing, upon delivery of a warranty deed and all other documents
needed to properly transfer title. The contract provided that
closing “shall occur on or about December 15, 2010.”
The Dawson County property included farm ground and
land that had previously been operated as a feedlot. The real
estate sale contract included a provision that “Seller agrees
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 331
Cite as 21 Neb. App. 328to obtain a feedlot permit on Dawson County property and to
assign permit to Purchaser by January 1, 2011.” Testimony
adduced at trial indicated that this language concerning a
“feedlot permit” was included by Blake and the real estate bro-
ker; the real estate broker testified that he and Blake came up
with the language “jointly.”
3. P ermit Transfer Forms
and Correspondence
(a) Nebraska’s Department of
Environmental Quality Forms
The record includes information about the relevant forms
from Nebraska’s Department of Environmental Quality (here-
inafter DEQ) necessary for an entity to obtain and/or transfer
a permit relative to operation of a feedlot in Nebraska. The
district court received a copy of title 130 of the Nebraska
Administrative Code, implementing Nebraska’s Livestock
Waste Management Act. See Neb. Rev. Stat. § 54-2416 et seq.
(Reissue 2010 & Cum. Supp. 2012). See, also, Neb. Rev. Stat.
§ 81-1501 et seq. (Reissue 2008 & Cum. Supp. 2012). The
court noted that title 130 identifies several permits which have
application to feedlots, including a “construction and operat-
ing permit” and a “National Pollutant Discharge Elimination
System” permit (pollution permit).
Applicants for permits are required to complete a form C
applicant disclosure (Form C applicant disclosure) document.
See, 130 Neb. Admin. Code, ch. 4, § 001.03 (2008); Neb.
Admin. Code, ch. 5, § 003.03 (2008). A party possessing a
DEQ permit may apply to have that permit transferred to
another party by submitting a completed form D transfer
request (Form D transfer request) document. See 130 Neb.
Admin. Code, ch. 6, § 003.01 (2008).
(b) Forms Sent to DBJ From Stitch
Phil testified that after the real estate sale contract was
executed, he began taking steps to deal with the “feedlot per-
mit” provision of the contract. Stitch hired an environmental
consultant to assist in obtaining and transferring the necessary
permit. The evidence adduced at trial indicates that a variety
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332 21 NEBRASKA APPELLATE REPORTS
of proposed transfers, “demands” for completion of transfer
forms, and other correspondence were exchanged between
the parties.
(i) Proposed Transfer
to Daron Huyser
Phil testified that he understood that DBJ intended to imme-
diately resell the Dawson County property to another party,
Daron Huyser. Phil testified that he understood that DBJ
wanted the permit transferred in Huyser’s name.
On December 23, 2010, the real estate broker e-mailed
DBJ’s counsel and forwarded a Form D transfer request, indi-
cating a proposal to transfer a permit from Triple 7 to Huyser.
On the form, the box next to “Construction and Operating
Permit” was checked, the current owner or operator was listed
as Triple 7, and the name of the proposed owner or operator
was listed as “Huyser Cattle Co.” Huyser declined to sign any
such form.
(ii) First “Demand” by Stitch
On January 5, 2011, Stitch’s counsel sent a letter, a Form C
applicant disclosure, and a Form D transfer request to DBJ’s
counsel. In the letter, Stitch’s counsel requested that DBJ
sign the forms and return them by January 10. The Form C
applicant disclosure listed the name of the animal feeding
operation applying for a DEQ permit as DBJ. On the Form D
transfer request, the box next to “Construction and Operating
Permit” was checked, the current owner or operator was listed
as Triple 7, and the name of the proposed owner or operator
was listed as DBJ. The form included a line for the date of
the “[c]urrent” permit to be transferred, but that line was left
blank. The Form D transfer request also included the certifica-
tion that the applicant (DBJ) had “personally examined and
[was] familiar with the permit(s) or construction approval for
[the] animal feeding operation.” DBJ did not sign and return
the forms.
Blake testified that DBJ did not sign the Form D transfer
request for a variety of reasons. He testified that the real estate
sale contract was with Stitch, not with Triple 7, but that the
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 333
Cite as 21 Neb. App. 328Form D transfer request was from Triple 7. He testified that
the form also did not indicate any date of a current permit to
be transferred, “so [DBJ] had no idea which permit it was or
if [Stitch] even had a permit.” Finally, the form was not signed
by the purported transferor. He also testified that the certifica-
tion on the form required him to sign and attest he had person-
ally examined and was familiar with the permit, but that Stitch
had not provided an actual permit.
On January 7, 2011, DBJ’s counsel sent a letter to Stitch’s
counsel, in which he iterated that the real estate sale contract
required Stitch to obtain and transfer a “feedlot permit,” that
there had been no indication Stitch had ever obtained a feedlot
permit, and that the Form D transfer request sent by Stitch’s
counsel showed the transferor to be Triple 7. DBJ’s counsel
asked for clarification.
(iii) Second “Demand” by Stitch
On January 13, 2011, Stitch’s counsel sent another letter,
a copy of a DEQ 2010 annual permit fee invoice, a Form C
applicant disclosure, and a Form D transfer request to DBJ’s
counsel. In the letter, Stitch’s counsel represented that the
Dawson County property “currently [held] a permit . . . in
the name of R & J Cattle, Inc.,” and represented that “[t]his
‘feedlot permit’ [would] be transferred” to DBJ “through a
series of two transfers,” with the first being a transfer from
“R & J Cattle, Inc.” (hereinafter R&J Cattle), to Triple 7 and
the second being a transfer from Triple 7 to DBJ. Stitch’s
counsel indicated that “[t]he transfer requests [could] be filed
. . . contemporaneously.”
Stitch’s counsel indicated that he was including copies
of the forms necessary to transfer the DEQ permit held by
R&J Cattle to Triple 7. He indicated that transfer of the per-
mit from Triple 7 to DBJ would be accomplished through
DBJ’s executing the forms attached to the January 5, 2011,
correspondence.
The annual permit fee invoice indicated that on February
1, 2010, R&J Cattle had owed DEQ for an annual permit
fee. The invoice specifically referenced a “National Pollutant
Discharge Elimination System (NPDES) permit” (i.e., a
Decisions of the Nebraska Court of Appeals
334 21 NEBRASKA APPELLATE REPORTS
“pollution permit”). It did not reflect payment and did not
indicate the status of any permit as of January 2011. The
Form C applicant disclosure listed the name of the animal
feeding operation applying for a DEQ permit as Triple 7. On
the Form D transfer request, the box next to “Construction and
Operating Permit” was checked, the current owner or operator
was listed as “Ryan and Jeff Cattle Co.,” and the name of the
proposed owner or operator was listed as Triple 7. The form
included a line for the date of the “[c]urrent” permit to be
transferred, but that line was left blank.
On January 20, 2011, DBJ’s counsel sent a letter to Stitch’s
counsel, in which letter DBJ’s counsel indicated that he had
learned that “there is apparently no feedlot permit presently in
place” for the Dawson County property. DBJ’s counsel asked
Stitch’s counsel what he knew “about that issue.”
(iv) Third “Demand” by Stitch
On January 27, 2011, Stitch’s counsel sent another letter
to DBJ’s counsel. In the letter, Stitch’s counsel indicated that
the person who had informed DBJ’s counsel that there was no
permit in place on the property “does not have the authority to
speak on behalf of Stitch . . . , particularly as it relates to com-
plex issues involving” DEQ. Stitch’s counsel did not otherwise
respond to the assertion that there was then no existing permit
on the property. Stitch’s counsel also, again, indicated that to
close, DBJ needed to execute the previously proffered Form C
applicant disclosure and Form D transfer request.
Stitch’s counsel also noted that the parties were then “nearly
a month and a half past” the date of closing specified in the
contract, and asserted that “[a]s a general matter, time is of the
essence in all real estate dealings.” Stitch’s counsel then set “a
deadline of Tuesday, January 31, 2011 at 3:00 p.m. for receipt
of the executed” forms. Stitch’s counsel concluded the letter
by indicating that “[i]f the forms are not received by that time,
Stitch . . . will have no choice but to conclude that [DBJ] has
declined to consummate the purchase with the attendant rem-
edies available to Stitch . . . under the Contract.”
On January 31, 2011, DBJ’s counsel responded with a let-
ter. DBJ’s counsel took issue with Stitch’s counsel’s assertions
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 335
Cite as 21 Neb. App. 328that the contract called for closing on a specific date, pointing
out the contract indicated closing was to be “‘on or about’” a
particular date, and that time is generally of the essence, citing
authority in Nebraska indicating that time is generally not of
the essence unless so provided in the instrument. DBJ’s coun-
sel iterated DBJ’s assertion that Stitch had not, as of that time,
obtained “any feedlot permit whatsoever” and had not assigned
“any feedlot permit whatsoever.”
DBJ’s counsel asked Stitch to identify “[w]hat feedlot per-
mit or permits [it] claim[ed] or contend[ed] [were then] in
force and effect in connection with the Dawson County land,”
and requested a “full, complete and genuine copy of each one.”
DBJ’s counsel then noted that the documents previously for-
warded by Stitch included references to a “‘Construction and
Operating’” permit (i.e., the various Form C applicant disclo-
sure and Form D transfer request forms attached to the January
5 and 13, 2011, letters) and a pollution permit (i.e., the annual
permit fee invoice attached to the January 13 letter).
DBJ’s counsel again represented that it had received infor-
mation, this time from DEQ, indicating that there was then “no
feedlot permit in effect.” DBJ’s counsel indicated that “‘Ryan
and Jeff Rogers Cattle Co.’” had previously been issued a
pollution permit in 1993, but that it had expired in 1998 and
was not a permit that was transferable at all. DBJ’s counsel
indicated that the only construction and operating permit ever
issued in connection with the property had been issued in 1973,
in the name of “‘Sarnes & Son.’”
(v) Fourth “Demand” by Stitch
On February 3, 2011, Stitch’s counsel responded with another
letter to DBJ’s counsel. Stitch’s counsel indicated that “[w]e all
agree what the Contract states in relevant part. The Feedlot
Permit cannot be transferred without [DBJ’s] signature” on the
forms previously forwarded. Stitch’s counsel specifically rep-
resented that the contract did not obligate Stitch to transfer any
pollution permit, “only a ‘Feedlot Permit.’”
On February 4, 2011, DBJ’s counsel responded with another
letter to Stitch’s counsel. DBJ’s counsel indicated that DBJ had
scheduled closing for February 9 at the closing agent’s office.
Decisions of the Nebraska Court of Appeals
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DBJ’s counsel again asked Stitch to forward “a copy of what-
ever document(s) it is/are that constitute(s) the ‘feedlot permit’
[Stitch] was contractually obligated ‘to obtain,’” as well as “a
copy of whatever document(s) it is/are that constitute(s), when
completed by [Stitch], the assignment of such feedlot permit
to [DBJ].”
(vi) Fifth “Demand” by Stitch
On February 8, 2011, DBJ’s counsel sent another letter,
enclosing a variety of documents related to the closing sched-
uled for the next day, and again requesting copies of the “‘feed-
lot permit’” that Stitch was purporting to possess and transfer.
The same day, Stitch’s counsel responded with another let-
ter in anticipation of the closing scheduled for the next day.
Stitch’s counsel included another copy of the Form C applicant
disclosure and Form D transfer request that had been previ-
ously forwarded for DBJ’s completion. Stitch’s counsel iter-
ated, again, that the forms “are all that is required to transfer
the ‘Feedlot Permit’ to [DBJ].” Stitch’s counsel represented
that “[s]imilar forms [had] already been filed with [DEQ]
to transfer the ‘Feedlot Permit’ to Triple 7 . . . .” Stitch’s
counsel also included a draft of a release, which he indicated
Stitch would require to close and which indicated that the
forms previously provided by Stitch fulfilled Stitch’s contrac-
tual responsibilities.
On February 9, 2011, DBJ provided the closing agent with a
check slightly in excess of $1,150,000, as well as other docu-
ments necessary to close on the purchase. DBJ also provided
the closing agent with instructions that DBJ did not authorize
closing unless Stitch tendered a “presently effective feedlot
permit in the name of Stitch” and a “written assignment of the
above-described feedlot permit from [Stitch] to [DBJ].” DBJ
represented to the closing agent that, to its knowledge, Stitch
“ha[d] not obtained a feedlot permit” related to the Dawson
County property.
Ashley testified that at the February 9, 2011, closing, Stitch
presented to DBJ the same Form C applicant disclosure and
Form D transfer request documents previously sent to DBJ and
requested, again, that DBJ sign the forms. She testified that
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 337
Cite as 21 Neb. App. 328DBJ, again, did not sign the forms. The closing did not occur
on February 9.
(vii) Sixth “Demand” by Stitch
On February 10, 2011, DBJ’s counsel sent a letter to Stitch’s
counsel. In the letter, DBJ’s counsel indicated that DBJ felt that
it was “in a position to seek relief in a specific performance
lawsuit.” DBJ’s counsel proposed negotiations “in an effort to
resolve the matter.”
On February 17, 2011, Stitch’s counsel responded with a
letter to DBJ’s counsel. Stitch’s counsel attached copies of
documents showing that DEQ had authorized transfer of a
“‘Feedlot Permit’” to Triple 7, including a letter from DEQ
and a copy of a construction and operating permit issued
to Triple 7. Stitch’s counsel again requested, “for the final
time,” that DBJ complete the Form C applicant disclosure and
Form D transfer request documents previously forwarded to
DBJ. Stitch’s counsel represented that DBJ’s failure to sign the
forms in response would entitle Stitch to retain the $50,000
earnest money deposit and would constitute an abandonment
by DBJ of any claims to the property.
The letter from DEQ attached to Stitch’s counsel’s letter
indicated that DEQ had received from Stitch a Form D transfer
request “requesting a transfer of the [pollution] permit previ-
ously issued to” R&J Cattle. DEQ advised, however, that the
pollution permit had expired and was not able to be transferred,
and advised that DEQ could transfer an operating permit “pre-
viously issued to Sarnes & Son on November 6, 1973.”
This information from DEQ was consistent with represen-
tations DBJ made to Stitch in the January 31, 2011, letter
responding to Stitch’s third “demand” for DBJ to sign the
forms. In addition, it is apparent from the record that the con-
struction and operating permit issued to Triple 7 and referenced
in the DEQ letter, dated February 15, 2011, was the first permit
actually issued to Stitch or Triple 7.
On February 18, 2011, DBJ’s counsel responded to Stitch’s
counsel’s letter. DBJ’s counsel indicated that DBJ did not
“agree with [Stitch’s] threatened assumption nor the legal
claims and conclusions contained in [Stitch’s counsel’s] letter.”
Decisions of the Nebraska Court of Appeals
338 21 NEBRASKA APPELLATE REPORTS
DBJ’s counsel indicated that he would meet with DBJ and be
in touch with Stitch’s counsel.
On February 21, 2011, DBJ’s counsel sent another letter
to Stitch’s counsel. DBJ’s counsel indicated that “the feed-
lot permit which is required, by the contract’s terms, to be
assigned to [DBJ] includes [a pollution] permit.” DBJ’s coun-
sel indicated that Stitch “has pretty much conceded the point in
[Stitch’s counsel’s] letters (and relevant enclosures, if any) . . .
of January 13, 2011, February 3, 2011, and February 8, 2011,
and in [Phil’s] engineer’s letter . . . and enclosures, sent to the
[DEQ].” DBJ’s counsel then proposed settlement terms.
4. Litigation
On February 22, 2011, Stitch’s counsel sent an e-mail to
DBJ’s counsel. In the e-mail, Stitch’s counsel represented that
DBJ’s offer to settle was rejected and inquired whether DBJ
would file a voluntary appearance to the complaint Stitch
intended to file. A complaint was filed in the district court for
Dawson County the same day.
On February 23, 2011, DBJ’s counsel responded with an
e-mail. In that e-mail, DBJ’s counsel represented that DBJ
“ha[d] decided to proceed with closing at the $1.2 million
figure, based on the present feedlot permit status.” As noted,
however, by this time, the complaint had already been filed.
(a) Complaint
In its complaint, Stitch alleged that Stitch and DBJ had
entered into a real estate sale contract. Stitch alleged that the
contract included a provision requiring Stitch to obtain and
transfer a “feedlot permit” and that the contract specifically
contemplated that the “feedlot permit” would be transferred
after closing.
Stitch then alleged that the property “currently [held] a
‘Feedlot Permit’” from DEQ and that attached and incorpo-
rated was the 2010 annual permit fee invoice related to” R&J
Cattle. Stitch then alleged that “[t]his ‘Feedlot Permit’ was
to be transferred to [DBJ] through a series of two transfers”
and alleged that the first transfer was to be to Triple 7 and
the second was to be from Triple 7 to DBJ. Stitch alleged that
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 339
Cite as 21 Neb. App. 328the required Form C applicant disclosure and Form D transfer
request documents had been forwarded to DBJ on January 5
and 13, 2011, and that several demands had been made by
Stitch to DBJ for completion of the forms.
Stitch alleged that it “stood ready, willing and able to close
the sale but could not do so until [DBJ] signed the [f]orms”
and that DBJ “declined to consummate the purchase.”
Stitch alleged that on February 15, 2011, DEQ “granted
the transfer of the ‘Feedlot Permit’ to Triple 7” and that on
February 17, Stitch made another demand on DBJ to sign and
return the forms needed to transfer the permit from Triple 7
to DBJ.
Stitch alleged that DBJ breached the contract and that Stitch
was entitled to liquidated and general monetary damages.
Stitch also sought a declaratory judgment that it had complied
with the “feedlot permit” provision in the contract and that
DBJ had failed to consummate the purchase, entitling Stitch to
retain the earnest money deposit. Finally, Stitch sought, in the
alternative, an order rescinding and canceling the contract due
to the “mutual mistake of the parties” by using the term “feed-
lot permit” in the contract.
(b) Answer
In its answer, DBJ essentially denied the vast majority of
Stitch’s assertions. For example, Stitch alleged in its com-
plaint the following: “11. Under Miscellaneous Provisions,
the Contract states: Seller agrees to obtain a feedlot permit on
Dawson County property and to assign permit to Purchaser
by January 1, 2011.” A review of the second page of the
contract indicates that the asserted language appears, word
for word, under the heading “Miscellaneous Provisions,” in
the real estate sale contract. Nonetheless, in its answer, DBJ
responded to this assertion as follows: “11. Denies, except that
[DBJ] admits that the Sale Contract speaks for itself as to its
terms.” DBJ made similar “denials,” with the limitation that
the contract “speaks for itself” with respect to other assertions
by Stitch that the contract included specific language which a
review of the contract reveals it did, in fact, include exactly as
represented by Stitch.
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340 21 NEBRASKA APPELLATE REPORTS
DBJ specifically denied that Stitch had complied with the
“feedlot permit” provision of the contract. DBJ also spe-
cifically denied that the parties had made a mutual mistake by
using the term “feedlot permit” in the contract.
DBJ also asserted a counterclaim, requesting the district
court to “enter a decree of specific performance, requiring
[Stitch] to specifically perform its obligations under the Sale
Contract.” DBJ also requested an accounting of rents and prof-
its from the properties from and after February 9, 2011.
(c) Trial
The primary issue litigated in this case was the meaning
of the “feedlot permit” provision in the real estate sale con-
tract. To litigate that issue, the parties adduced more than 450
pages of testimony and presented nearly 280 exhibits, some
of which comprised three-ring binders containing as many
as 80 different documents. Trial was held over the course of
2 days.
At trial, Stitch argued that the term “feedlot permit” in the
contract meant an operating permit, not both an operating
permit and a pollution permit. Stitch argued that the only way
to transfer a permit to DBJ was for DBJ to sign the tendered
Form C applicant disclosure and Form D transfer request docu-
ments, that Stitch presented those documents and requested
DBJ’s signature on multiple occasions, and that DBJ had
refused to consummate the contract. Stitch also argued that
accomplishing the transfer by use of Triple 7, instead of Stitch
itself, was not a problem.
At trial, DBJ argued that Stitch never obtained or trans-
ferred any feedlot permit to DBJ. DBJ argued that the Form C
applicant disclosure and Form D transfer request documents
presented to it from Stitch were ineffective for a variety of
reasons, including that they did not include dates of any per-
mits proposed to be transferred. DBJ argued that it had asked
Stitch on multiple occasions to identify what permit was being
proposed to be transferred to DBJ, but that Stitch repeatedly
failed to do so. DBJ argued that Stitch had represented on
some occasions it intended to transfer a permit previously
held by R&J Cattle, but that R&J Cattle only ever possessed
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 341
Cite as 21 Neb. App. 328a pollution permit and that Triple 7 never obtained a pollution
permit and obtained only an operating permit.
Stitch adduced testimony, inter alia, from Phil and Ashley,
Brian and Blake, and the real estate broker. DBJ adduced
testimony from Phil and Ashley and from Brian and Blake.
That testimony, and the documentary evidence proffered
by the parties, establishes the timeline of correspondence
detailed above.
Phil testified that prior to Stitch’s ever purchasing the
Dawson County property, he performed “due diligence” and
learned that there was an operating permit in the name of
“Sarnes & Son.” He testified that the paperwork needed to
transfer the permit from Sarnes & Son to R&J Cattle had never
been completed. Phil testified that he never provided Stitch’s
counsel with a copy of the Sarnes & Son permit to be provided
to DBJ. He acknowledged having seen letters from DBJ’s
counsel to Stitch’s counsel requesting to see copies of the
“feedlot permit” that Stitch was proposing would be transferred
by completion of the Form C applicant disclosure and Form D
transfer request documents, and acknowledged that after seeing
the requests from DBJ, he did not forward a copy of the Sarnes
& Son permit to Stitch’s counsel.
Brian testified that he and Blake were also directors in
another corporation. He testified that in 2005, that corpora-
tion went through the process with DEQ to obtain both a con-
struction and operating permit and coverage under a pollution
permit, in association with operating a feedlot. He testified
that he spoke with Blake about the language in the “feedlot
permit” provision in the real estate sale contract at issue in
this case, but that he did not specify whether Stitch was to
obtain a construction and operating permit, a pollution permit,
or both.
Blake testified that DBJ declined to sign the Form C appli-
cant disclosure and Form D transfer request documents prof-
fered by Stitch for a variety of reasons, including that the
forms did not specify what permit Stitch was purporting would
be transferred. He testified that DBJ was not contending that
the term “feedlot permit” in the real estate sale contract actu-
ally meant “feedlot permits, plural.”
Decisions of the Nebraska Court of Appeals
342 21 NEBRASKA APPELLATE REPORTS
Also introduced in evidence was the deposition of the envi-
ronmental consultant hired by Stitch to assist in obtaining and
transferring the required “feedlot permit.” In his deposition,
the consultant testified that he informed Stitch’s counsel in
November 2010 that he could not find a “‘current’” pollution
permit for the property. He testified that the pollution per-
mit had, at that time, expired. He testified that he forwarded
Form C applicant disclosure and Form D transfer request docu-
ments to Stitch’s counsel to request the transfer of the previous
pollution permit from R&J Cattle to Triple 7.
The environmental consultant also testified that he, on
behalf of Stitch and Triple 7, forwarded documents to DEQ
for Triple 7 to obtain a feedlot permit. He testified that on the
documents he forwarded, he had “checked” the boxes next to
both “Construction and Operating Permit” and “[pollution]
permit.” He testified that DEQ eventually issued Triple 7 an
operating permit.
Also introduced in evidence was the deposition of a supervi-
sor from DEQ. The supervisor was asked if he would consider
Stitch’s counsel to be “more or less of an expert in the cattle
feedlot area of the law,” and he indicated that he would so con-
sider Stitch’s counsel. The supervisor testified about the history
of permits on the property, including that Sarnes & Son had
been issued an operating permit in 1973, that R&J Cattle had
been issued a pollution permit in 1993, and that R&J Cattle’s
pollution permit expired in 1998 and was never transferable to
any other entity. He confirmed that Stitch never held any DEQ
permit concerning the property.
The DEQ supervisor was specifically asked about whether
the paperwork could have been submitted simultaneously for
Triple 7 to obtain a permit and to transfer it to DBJ. He
acknowledged that for DEQ’s “permitting process,” a party
has to have a permit to be able to transfer that permit to
another party. When asked if the paperwork could have been
submitted simultaneously, he first answered, “My assessment
would say no because . . . there wouldn’t be a permit to trans-
fer yet.” He acknowledged, however, that the paperwork could
be reviewed “with the thought of a transfer [that] couldn’t be
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 343
Cite as 21 Neb. App. 328simultaneous but with a transfer after the transfer [was] made
to Triple 7.”
(d) District Court’s Judgment
The district court found that “the evidence clearly and
convincingly prove[d] the parties attached different meanings
to the term ‘feedlot permit’ as used in the [real estate sale]
contract.” The court found that Stitch “held the belief that
its obligation under the contract was to transfer a construc-
tion and operating permit,” while DBJ “held the belief that
[Stitch] was required to obtain and ‘assign’ to it a ‘feedlot
permit’ which included a [pollution] permit.” The court held
that the “beliefs on the part of the parties as to the meaning
and effect attached to the wording in the contract constituted
a mistake, i.e., each party held a reasonable, but materially
different understanding of the meaning” of the term “feed-
lot permit.”
The court held that it was “not possible to resolve the differ-
ences in meaning in a manner clearly fair to both parties.” The
court held that it could not “determine the intent of the parties
under the contract to know whether the reference to ‘feedlot
permit’ referred to just one or all of the permits required [to
operate] a feedlot.” The court held that “[i]t is uncertain and
unclear whether the parties intended that only one or all neces-
sary permits were required.”
The court also held that “[t]he mistake” was “so substantial
and fundamental that it defeats the object of the parties in mak-
ing the agreement.” The court held that the parties “attached
substantially different meanings to a fundamental term in the
contract which could not be reconciled and such difference in
meanings defeats the object of the contract.”
The court concluded that it could not find that either party
had breached the contract, because each had attached a dif-
ferent meaning to the term “feedlot permit.” Similarly, the
court concluded that it could not “issue a declaratory ruling to
declare the rights and obligations of the parties under the con-
tract,” because each party’s rights and obligations were “sub-
ject to reasonable, but materially and substantially different,
interpretations.” Finally, the court concluded that it could not
Decisions of the Nebraska Court of Appeals
344 21 NEBRASKA APPELLATE REPORTS
order specific performance of the contract, again because of
the reasonable but substantially different meanings each party
attached to the term “feedlot permit.”
The court ultimately held that the contract between the par-
ties “should be cancelled on the grounds of mistake.” The court
further held that the “mistake” was fundamental in nature,
making the contract voidable, and ordered the contract voided
and canceled, and the parties restored as nearly as possible to
the positions they held before entering the contract.
The district court entered a decree of cancellation and rescis-
sion. The court ordered the contract “cancelled, annulled, and
rendered void ab initio.” The court also ordered the return of
the earnest money deposit to DBJ. This appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, DBJ has assigned several errors, including that
the district court erred in finding that the parties attached dif-
ferent meanings to the term “feedlot permit,” in finding that
there was a “mistake” by the parties in using the term “feedlot
permit,” and in canceling the real estate sale contract between
the parties.
Stitch has asserted a cross-appeal, asserted only in the
event this court finds merit to DBJ’s direct appeal, assigning
as error the district court’s failure to find that DBJ breached
the contract.
IV. ANALYSIS
1. DBJ’s Direct Appeal
DBJ has assigned several errors challenging the district
court’s conclusion that the contract should be canceled. DBJ
challenges the court’s finding that the parties attached differ-
ent meanings to the term “feedlot permit” and that there was
a “mistake” by the parties in using that term. We find that the
evidence adduced at trial demonstrates there was never a meet-
ing of the minds between the parties concerning the meaning
of the term “feedlot permit” and that the court did not err in
canceling the contract.
[1-3] The basic principles of law governing this case have
long been established. To create a contract, there must be both
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 345
Cite as 21 Neb. App. 328an offer and an acceptance; there must also be a meeting of
the minds or a binding mutual understanding between the par-
ties to the contract. City of Scottsbluff v. Waste Connections of
Neb., 282 Neb. 848, 809 N.W.2d 725 (2011). A fundamental
and indispensable basis of any enforceable agreement is that
there be a meeting of the minds of the parties as to the essen-
tial terms and conditions of the proposed contract. Peters v.
Halligan, 182 Neb. 51, 152 N.W.2d 103 (1967). A binding
mutual understanding or meeting of the minds sufficient to
establish a contract requires no precise formality or express
utterance from the parties about the details of the proposed
agreement; it may be implied from the parties’ conduct and
the surrounding circumstances. City of Scottsbluff v. Waste
Connections of Neb., supra.
[4-7] In limited circumstances, the parties’ failure to spec-
ify an essential term does not prevent the formation of a con-
tract. Id. “The Restatement (Second) of Contracts provides
that ‘the actions of the parties may show conclusively that
they have intended to conclude a binding agreement, even
though one or more terms are missing or are left to be agreed
upon.’” City of Scottsbluff v. Waste Connections of Neb., 282
Neb. at 861, 809 N.W.2d at 740. Sometimes, a court can also
ascertain the meaning of a party’s promise by referring to the
parties’ course of dealing with each other, or a general reason-
ableness standard. City of Scottsbluff v. Waste Connections of
Neb., supra. The circumstances must still show that the parties
manifested an intent to be bound by a contract. Their mani-
festations are usually too indefinite to form a contract if the
essential terms are left open or are so indefinite that a court
could not determine whether a breach had occurred or provide
a remedy. Id.
[8] It is a fundamental rule that in order to be binding, an
agreement must be definite and certain as to the terms and
requirements. It must identify the subject matter and spell out
the essential commitments and agreements with respect thereto.
MBH, Inc. v. John Otte Oil & Propane, 15 Neb. App. 341,
727 N.W.2d 238 (2007); Wells v. Wells, 3 Neb. App. 117, 523
N.W.2d 711 (1994).
Decisions of the Nebraska Court of Appeals
346 21 NEBRASKA APPELLATE REPORTS
(a) Evidence of Stitch’s
Interpretation of Term
It appears that throughout the course of these proceed-
ings, Stitch’s interpretation of the term “feedlot permit” was
inconsistent. The evidence adduced at trial demonstrates that
Stitch sometimes operated as if the term meant an “operating
permit,” sometimes operated as if the term meant a “pollu-
tion permit,” and sometimes operated as if the term meant
both permits.
Phil testified that prior to Stitch’s ever purchasing the
Dawson County property at issue in this case, he performed
“due diligence” and learned that there was an “operating
permit” in the name of Sarnes & Son. He testified that the
paperwork had never been completed to transfer that permit
to R&J Cattle, although other evidence indicates that R&J
Cattle did, at one time, possess a “pollution permit” related to
the property.
The first correspondence from Stitch’s counsel to DBJ’s
counsel concerning transfer of a permit was a January 5, 2011,
letter. In that letter, Stitch’s counsel included partially com-
pleted Form C applicant disclosure and Form D transfer request
documents. On those documents, Stitch had checked a box
indicating that the permit to be transferred was a “Construction
and Operating Permit.” The form did not, however, include any
date information to identify a then-existing permit.
On January 13, 2011, Stitch’s counsel sent another corre-
spondence to DBJ’s counsel concerning transfer of a permit. In
that letter, Stitch’s counsel referenced the prior forms—which
referred to a “Construction and Operating Permit”—but also
referenced a plan to transfer a permit held by R&J Cattle to
Triple 7 and then to DBJ. Stitch’s counsel included docu-
ments to demonstrate the paperwork necessary to transfer R&J
Cattle’s permit to Triple 7, and also included a copy of an
invoice for the permit allegedly held by R&J Cattle. That
invoice, and other evidence adduced at trial, indicated that
R&J Cattle had at one time possessed a “pollution permit.”
There was evidence adduced that R&J Cattle never possessed
an operating permit, only ever possessed a pollution permit,
and did not possess a permit that could actually be transferred
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 347
Cite as 21 Neb. App. 328to anyone. The paperwork sent by Stitch’s counsel on this date
again did not include any date information to identify a then-
existing permit.
On January 20, 2011, DBJ’s counsel expressed concern to
Stitch’s counsel that there was no then-existing feedlot permit
on the property.
On January 27, 2011, Stitch’s counsel again represented
that DBJ needed to complete the forms first forwarded to
DBJ’s counsel on January 5, which referenced a “Construction
and Operating Permit” and not a “pollution permit.” Stitch’s
counsel again did not provide any date information or other
information to identify any then-existing permit that Stitch was
intending to transfer.
On January 31, 2011, DBJ’s counsel specifically represented
to Stitch’s counsel that his prior correspondence had varyingly
referenced a “Construction and Operating Permit” and a “pol-
lution permit,” and again requested Stitch to identify precisely
what permit it was intending to transfer. DBJ’s counsel also
specifically represented to Stitch’s counsel that R&J Cattle
did not possess a then-existing permit, having previously pos-
sessed a “pollution permit,” which had expired, and that the
only “operating permit” had been issued in 1973 in the name
of Sarnes & Son.
On February 3, 2011, Stitch’s counsel again represented
that DBJ needed to complete the forms previously forwarded
to DBJ’s counsel—which referenced only a “Construction and
Operating Permit.” Stitch’s counsel specifically represented
that Stitch was not required to transfer a “pollution permit.”
Stitch’s counsel again did not provide any date information
or other information to identify a then-existing permit on the
property that it intended to transfer.
On February 8, 2011, Stitch’s counsel again represented
that DBJ needed to complete the forms previously forwarded
to DBJ’s counsel—which referenced only a “Construction
and Operating Permit.” Stitch’s counsel also indicated
that Stitch would require DBJ to execute a release provid-
ing that the forms provided by Stitch—referencing only a
“Construction and Operating Permit”—fulfilled Stitch’s con-
tractual obligation.
Decisions of the Nebraska Court of Appeals
348 21 NEBRASKA APPELLATE REPORTS
Evidence adduced at trial demonstrated that the environ-
mental consultant, on behalf of Stitch, eventually forwarded
documents to DEQ for Triple 7 to obtain a feedlot permit. The
documents he forwarded to DEQ indicated that Triple 7 was
seeking both a “Construction and Operating Permit” and a
“pollution permit.”
On February 17, 2011, Stitch’s counsel forwarded docu-
ments showing that DEQ had then issued a construction and
operating permit to Triple 7. Stitch’s counsel again repre-
sented that DBJ needed to complete the forms previously for-
warded to DBJ’s counsel. The paperwork related to Triple 7’s
permit, however, demonstrated that Stitch had requested DEQ
transfer the “pollution permit” previously possessed by R&J
Cattle, but that DEQ informed Stitch that the permit had
expired and that the only existing permit which could be
transferred was the 1973 operating permit issued to Sarnes
& Son.
On February 22, 2011, Stitch filed a complaint in the district
court. In that complaint, Stitch again referenced the permit that
had previously been held by R&J Cattle—which the evidence
demonstrates was only a “pollution permit”—and specifically
alleged that “[t]his ‘Feedlot Permit’ was to be transferred” to
DBJ. Stitch also alleged that it was ready, willing, and able to
transfer the permit DEQ had issued to Triple 7—a “construc-
tion and operating permit”—to DBJ.
At trial, Stitch argued that the term “feedlot permit” in the
real estate sale contract meant an “operating permit,” and not
both an “operating permit” and a “pollution permit.” In addi-
tion, despite the evidence that Stitch was inconsistent about its
representations and interpretations of the term, evidence was
adduced indicating that a supervisor from DEQ considered
Stitch’s counsel to be an expert in this area of law.
Thus, the evidence adduced in this case demonstrates that
Stitch has acted inconsistently with the term “feedlot per-
mit,” meaning at various times a “construction and operating
permit,” a “pollution permit,” and both a “construction and
operating permit” and a “pollution permit.” Despite Phil’s
knowledge before purchasing the property that the “operating
permit” was in the name of Sarnes & Son and despite Stitch’s
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 349
Cite as 21 Neb. App. 328counsel’s being informed during the course of correspondence
that R&J Cattle possessed only an expired “pollution permit,”
Stitch acted to transfer the R&J Cattle permit, applied for
both a “construction and operating permit” and a “pollution
permit,” made assertions in its complaint suggesting that it
believed it was obligated to transfer the R&J Cattle “pollu-
tion permit,” and argued at trial that it was never obligated
to transfer a “pollution permit.” This evidence demonstrates
that Stitch was not consistent in its own representations
about what it believed the term “feedlot permit” was intended
to mean.
(b) Evidence of DBJ’s
Interpretation of Term
Similarly, it appears that throughout the course of these pro-
ceedings, DBJ’s interpretation of the term “feedlot permit” was
inconsistent. The evidence adduced at trial demonstrates that
DBJ often made no representation about what it believed the
term meant but, at other times, made representations suggest-
ing it believed that the term meant both an “operating permit”
and a “pollution permit,” and at still other times, that the term
meant only an “operating permit.”
Brian testified that he and Blake—principals in DBJ—were
also directors in another corporation, and that in 2005, they
went through the process with DEQ to obtain both a “construc-
tion and operating permit” and a “pollution permit” concern-
ing an unrelated parcel of property. Blake, along with the real
estate broker, was the one who included the language “feedlot
permit” in the provision at issue, and Brian testified that he and
Blake spoke about the language but did not specify whether it
was intended to mean a “construction and operating permit,” a
“pollution permit,” or both.
Throughout most of the correspondence between the par-
ties, DBJ did not object to completing the forms forwarded
by Stitch on the basis that they appeared to refer only to an
“operating permit” and not also a “pollution permit.” Rather,
DBJ’s counsel repeatedly inquired of Stitch what permit it was
intending to transfer, but did not explicitly represent that a
“pollution permit” or both permits were required.
Decisions of the Nebraska Court of Appeals
350 21 NEBRASKA APPELLATE REPORTS
It was not until February 21, 2011, that DBJ first explicitly
represented to Stitch that the term “feedlot permit” in the real
estate sale contract included a “pollution permit.” DBJ pro-
posed settlement to Stitch even without a “pollution permit” if
Stitch would reduce the purchase price. Then, once Stitch filed
a complaint, DBJ represented that it would proceed with clos-
ing based on the then-existing permit status—with Triple 7’s
possessing and proposing to transfer only a “construction and
operating permit.”
At trial, Brian testified that DBJ did not contend that the
term “feedlot permit” in the real estate sale contract required
more than one permit.
Thus, although DBJ’s representations and actions throughout
have arguably been less inconsistent, the evidence adduced
demonstrates that DBJ did not specifically indicate to Stitch
whether DBJ required only a “pollution permit,” only a “con-
struction and operating permit,” or both permits. DBJ vari-
ously indicated that a “pollution permit” was required, but also
offered to accept only the “construction and operating permit,”
and Brian testified that DBJ did not allege that more than one
permit was required.
(c) Application and Resolution
In the present case, there was substantial evidence adduced
at trial concerning the “feedlot permit” provision in the real
estate sale contract, including the correspondence and testi-
mony outlined above in the background section of this opinion.
Although there were other ancillary issues between the par-
ties related to performance and closing on the real estate sale
contract, the “feedlot permit” provision was the primary issue
between the parties that resulted in the fact that the contract
was never closed and litigation was pursued.
Among other assertions, Stitch alleged in its complaint that
the use of the term “feedlot permit” was a mutual mistake by
the parties. The district court ultimately concluded that each
party attached materially different meanings to the term and
that such constituted a “mistake” sufficient to justify cancella-
tion of the contract.
Decisions of the Nebraska Court of Appeals
STITCH RANCH v. DOUBLE B.J. FARMS 351
Cite as 21 Neb. App. 328[9-11] A mutual mistake is a belief shared by the parties,
which is not in accord with the facts. R & B Farms v. Cedar
Valley Acres, 281 Neb. 706, 798 N.W.2d 121 (2011). A mutual
mistake is one common to both parties in reference to the
instrument, with each party laboring under the same miscon-
ception about the instrument. See id. A mutual mistake exists
where there has been a meeting of the minds of the parties and
an agreement actually entered into, but the agreement in its
written form does not express what was really intended by the
parties. Id.The record in the present case does not demonstrate a
mutual mistake, because it is clear that there was no shared
belief or common misunderstanding about the term “feedlot
permit,” as used in the real estate sale contract. Indeed, the
record demonstrates quite the opposite and indicates that there
was no common understanding or shared belief about what the
term was intended to mean.
In this case, the evidence adduced at trial demonstrates that
there was never any meeting of the minds concerning the term
“feedlot permit” and what DEQ permit or permits had to be
obtained and transferred by Stitch to satisfy the contract. The
term was not defined in the contract, and the evidence indi-
cates that each party’s actions and representations throughout
the proceedings suggested changing interpretations of the term;
there is no evidence that the parties ever actually discussed
exactly what was intended by the term.
The parties’ conduct and surrounding circumstances in this
case demonstrate that it is impossible to determine whether the
term “feedlot permit” was intended to require an “operating
permit” or a “pollution permit” or both permits. Stitch’s contin-
ued references to the R&J Cattle permit (which was only ever
a “pollution permit”) while simultaneously arguing that only an
“operating permit” was ever required, even through the course
of this appeal, demonstrate that Stitch never had an understand-
ing of what permit was required. DBJ’s varying representa-
tions about needing a “pollution permit,” DBJ’s being willing
to accept only an “operating permit,” and testimony that the
term was not intended to require multiple permits, similarly
Decisions of the Nebraska Court of Appeals
352 21 NEBRASKA APPELLATE REPORTS
demonstrate a lack of clarity concerning DBJ’s belief and
understanding. The term “feedlot permit” is so indefinite that
the court could not determine whether a breach had occurred or
provide a remedy. See City of Scottsbluff v. Waste Connections
of Neb., 282 Neb. 848, 809 N.W.2d 725 (2011).
[12,13] In Turbines Ltd. v. Transupport, Inc., 19 Neb. App.
485, 808 N.W.2d 643 (2012), this court recognized that relief
by way of rescission of a contract could be warranted on the
basis of a unilateral mistake when the mistake is of so fun-
damental a nature that it can be said that the minds of the
parties never met and that the enforcement of the contract
as made would be unconscionable. See, also, Turbines Ltd.
v. Transupport, Inc., 285 Neb. 129, 825 N.W.2d 767 (2013).
Similarly, in In re Estate of Potthoff, 6 Neb. App. 418, 573
N.W.2d 793 (1998), we recognized that an instrument may
be canceled on the ground of a mistake of fact and noted
that where the parties have apparently entered into a contract
evidenced by a writing, but owing to a mistake their minds
did not meet as to all essential elements of the transaction, a
court of equitable jurisdiction could interpose to rescind and
cancel the apparent contract and to restore the parties to their
former positions.
In the present case, the district court concluded that the par-
ties did not attach the same meaning to the term “feedlot per-
mit” in their real estate sale contract. As demonstrated by the
evidence discussed above, we agree with this conclusion—in
fact, the evidence suggests that each individual party did not
consistently attach the same meaning to the term, let alone
attach the same meaning as the other party. As a result, their
minds did not meet as to this term, which nobody has asserted
was a nonessential term. We therefore affirm the court’s can-
cellation of the contract and restoration of the parties to their
former positions.
2. Stitch’s Cross-Appeal
Stitch asserted error in the district court’s judgment by way
of a cross-appeal. Stitch asserted, however, that the cross-
appeal was being brought “[o]nly in the alternative” and only if
this court found error in the district court’s cancellation of the
Decisions of the Nebraska Court of Appeals
IN RE ROLF H. BRENNEMANN TESTAMENTARY TRUST 353
Cite as 21 Neb. App. 353contract. Brief for appellee on cross-appeal at 29. Inasmuch as
we have affirmed the court’s cancellation of the contract, we
need not further address Stitch’s cross-appeal.
V. CONCLUSION
We find that the evidence adduced at trial demonstrates
that there was never a meeting of the parties’ minds concern-
ing the meaning of the term “feedlot permit” in the real estate
sale contract. We affirm the district court’s cancellation of
the contract.
Affirmed.
In re Rolf H. Brennemann Testamentary Trust.
Kim Abbott, beneficiary, appellant, v.
John E. Brennemann et al.,
Trustees, appellees.
___ N.W.2d ___
Filed October 1, 2013. No. A-12-1029.
1. Trusts: Equity: Appeal and Error. Absent an equity question, an appellate
court reviews trust administration matters for error appearing on the record; but
where an equity question is presented, appellate review of that issue is de novo
on the record.
2. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision awarding
or denying attorney fees will be upheld absent an abuse of discretion.
3. ____: ____. When an attorney fee is authorized, the amount of the fee is
addressed to the discretion of the trial court, whose ruling will not be disturbed
on appeal in the absence of an abuse of discretion.
Appeal from the County Court for Grant County: James J.
Orr, Judge. Affirmed.
David A. Domina and Jeremy R. Wells, of Domina Law
Group, P.C., L.L.O., for appellant.
Neil E. Williams and Nathaniel J. Mustion, of Lane &
Williams, P.C., L.L.O., for appellees.
Inbody, Chief Judge, and Moore, Judge.