In this case, the Nebraska Court of Appeals determines that the district court abused its discretion in sentencing a defendant convicted of a IV Offense for Driving Under the Influence to Intensive Supervised Probation.
State v. Hatt, 16 Neb. App. 397 (2008)
Court of Appeals Headnotes
Sentences:
1. A sentencing court is not limited in its discretion to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. But there also must be some reasonable factual basis for imposing a particular sentence.
2. Appeal and Error. Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court’s discretion. ••• Neb. rev. Stat. § 29-2322 (reissue 1995) provides that an appellate court, upon a review of the record, shall determine whether a sentence imposed is excessively lenient, having regard for (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for the sentence imposed (a) to afford adequate deterrence to criminal conduct; (b) to protect the public from further crimes of the defendant; (c) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and (4) any other matters appearing in the record which the appellate court deems pertinent.
Judges:
1. Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
Date Filed and Case No.: February 5, 2008. No. A-07-190.
Court Appealed From: District Court for Douglas County: Marlon A. Polk, Judge.
Attorneys for the Appeal: Donald W. Kleine, Douglas County Attorney, and James M. Masteller for State of Nebraska, appellant. Christopher J. Lathrop for Gregory D. Matt, appellee.
Judges: Inbody, Chief Judge, and Irwin and Moore, Judges.
Authored By: Moore, Judge.
Summary: In an amended information filed on November 13, 2006, Gregory D. Hatt was charged with DUI, fourth offense, a Class IV felony; assault on an officer in the second degree, a Class III felony; operating a motor vehicle during a period of revocation, a Class II misdemeanor; and leaving the scene of a personal injury accident, a Class I misdemeanor. The results grew from an occurrence in the early morning hours of February 10, 2006. While on routine patrol in Omaha, a police officer’s vehicle was struck by a vehicle driven by Hatt, who immediately fled from the scene on foot. Hatt was apprehended shortly after the collision and was subjected to field sobriety tests and a breath test, which resulted in a reading of .200 of a gram of alcohol per 210 liters of his breath. Hatt admitted that he had been drinking beer for several hours during the evening preceding the accident. A check of Hatt’s record at the time of arrest revealed that his driver’s license was suspended as of November 4, 2005, for a DUI conviction and also revealed four additional DUI convictions. The police officer whose vehicle was struck sustained serious injuries as a result of the accident, resulting in fusion surgery in his spine which has caused him pain and has limited his activities and ability to work. A jury trial was held, after which the jury found Hatt guilty of all charges, except the assault charge. Following sentencing, the State of Nebraska, through the Douglas County Attorney, appealed from the sentence imposed asserting that the sentence—a 2-year period of intensive supervision probation (ISP) under specified terms and conditions—was excessively lenient.
Did the district court abuse its discretion and impose an excessively lenient sentence upon Hatt? The Nebraska Court of Appeals reminded that Hatt was convicted of DUI, fourth offense, a Class IV felony punishable by up to 5 years’ imprisonment, a $10,000 fine, or both. See Neb. rev. Stat. §§ 60-6,196 (reissue 2004) and 28-105 (Cum. Supp. 2006). Reviewing the record, the Court recited Hatt’s history of alcohol-related offenses, with the present offense being his sixth DUI conviction. Hatt was 50 years old at the time of the present offense and was divorced with two children. Hatt graduated from high school and attended 1 year of college but did not earn a degree. Hatt had been employed as a sales associate and customer service representative at Wal-Mart since April 2004. Hatt described his physical health as “‘good’” and his mental health as “ ‘improving every day.’” Hatt reported that he suffers from depression, for which he takes medication and sees a counselor one to two times a month. Reviewing the PSI, the Court found that given Hatt’s repeated pattern of alcohol-related offenses, the sentence imposed by the district court does not adequately reflect the seriousness of the offense, promote respect for the law, or provide just punishment. “Moreover,” they wrote “Hatt’s conduct posed an obvious and real threat to public safety. Hatt has not been deterred from drinking and driving in the past by either probation or license suspension. There is nothing in the record to suggest that such measures are likely to succeed now. Hatt has continued to relapse into alcohol abuse and to drink and drive, despite having obtained treatment on a number of occasions, having been fined and placed on probation, and having had his license suspended.” The Court concluded that the sentence imposed by the district court is excessively lenient.
Conclusion: The Court determined that the district court imposed an excessively lenient sentence upon Hatt. Under Neb. Rev. Stat. § 29-2323, when an appellate court determines that a sentence imposed is excessively lenient, it shall either (1) remand the cause for imposition of a greater sentence, (2) remand the cause for further sentencing proceedings, or (3) impose a greater sentence. Under § 29-2323(1)(a), they vacated the sentence and remanded the cause to the district court with instructions to impose a greater sentence. The sentence should be imposed by a different district court judge than the original sentencing judge. SENTENCE VACATED, AND CAUSE REMANDED FOR RESENTENCING.
In this appeal of an order granting attorney fees for violation of a discovery rule, the Nebraska Court of Appeals finds that there is no final order from which it might gain jurisdiction, and the collateral order doctrine does not apply.
Frederick v. Seeba, 16 Neb. App. 373 (2008)
Court of Appeals Headnotes
Judgments:
1. Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent of the lower court’s decision.
Jurisdiction:
1. Appeal and Error. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. ••• An appellate court has the independent duty to determine whether or not jurisdiction over an appeal exists.
2. Final Orders: Appeal and Error. Generally, in the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction. However, there is an exception to this rule which provides for appellate review of interlocutory orders that fall within that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.
Final Orders:
1. Appeal and Error. The test of finality of an order of judgment for the purpose of appeal is whether there was a final order entered by the tribunal from which the appeal is taken. ••• The three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered. ••• A substantial right is affected if the order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant prior to the order from which an appeal is taken. ••• There are three elements that must be met for an order to fall within the collateral order doctrine: The order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.
Words and Phrases.
1. A substantial right is an essential legal right, not a mere technical right.
Rules of the Supreme Court:
1. Pretrial Procedure: Appeal and Error. An order imposing a money judgment for attorney fees and expenses for discovery violations pursuant to Neb. Ct. r. of Discovery 37(a)(4) does not affect a “substantial right” as required by Neb. rev. Stat. § 29-1902 (reissue 1995).
Date Filed and Case No.: February 5, 2008. No. A-06-272.
Court Appealed From: District Court for Richardson County: Daniel Bryan, Jr., Judge.
Attorneys for the Appeal: John M. Guthery and Shawn P. Dontigney for John Seeba and Kita Seeba, husband and wife, doing business as J&K. Trailers and R.J.'s Mobile Power Washing, appellants. J.L. Spray and Robin L. Spady for David F. Frederick and Carol Frederick, husband and wife, and Douglas F. Merz, individually and on behalf of all former and current stockholders of Salem Grain Co., Inc. a Nebraska corporation, appellees.
Judges: Inbody, Chief Judge, and Carlson and Cassel, Judges.
Authored By: Inbody, Chief Judge.
Summary: John Seeba and Rita Seeba appealed to the Nebraska Court of Appeals from the Richardson County District Court’s award of $11,732.75 in attorney fees and expenses for discovery violations pursuant to Neb. Ct. R. of Discovery 37(a)(4) (rev. 2000).
Did the Court of Appeals have jurisdiction to review whether the district court erred in sanctioning the Seebas $11,732.75 in attorney fees and expenses for discovery violations? The Court reminded that before reaching the legal issues presented for review, it is their duty to determine whether they had jurisdiction over the matter. The test of finality of an order of judgment for the purpose of appeal is whether there was a final order entered by the tribunal from which the appeal is taken. Here the district court’s February 14, 2006, order (awarding the fees) was not an order which determined the action and prevented a judgment and was not an order made on summary application in an action after judgment had been rendered. As the Seebas conceded as much in their brief, the Court focused their discussion on whether the district court’s order is an order affecting a substantial right made during a special proceeding. In the instant case, the district court’s order entered a money judgment for $11,732.75 in favor of appellees. Such an order does not affect the subject matter of the litigation, such as diminishing a claim or defense available to the party or in any way affect the ability to advance or defend the lawsuit. Further, the filing of a direct appeal is sufficient to protect their interests. Thus, an order imposing a money judgment for attorney fees and expenses for discovery violations pursuant to Nebraska’s Discovery Rule 37(a)(4) does not affect a “substantial right” as required by § 29-1902. Consequently, the Court said that the order appealed from in this case is not a final order.
Was this matter under the collateral order doctrine? Generally, in the absence of a final order from which an appeal may be taken, the appeal must be dismissed for lack of jurisdiction. However, there is an exception to this rule which provides for appellate review of interlocutory orders that fall within “‘that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.’”(quoting Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. ed. 1528 (1949)). The Nebraska Supreme Court has stated:
The U.S. Supreme Court has set forth three elements that must be met for an order to fall within the collateral order doctrine: “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Hallie Mgmt. Co. v. Perry, 272 Neb. at 85-86, 718 N.W.2d at 535 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454, 57 L. ed. 2d 351 (1978)).
In the instant case, the Court said that the Seebas cannot meet the third condition of the collateral order doctrine, i.e., that the order is effectively unreviewable upon final judgment. Once a final determination of the merits of the case has been decided, the Seebas can appeal the imposition of attorney fees and expenses at that time, and if the appellate court determines that an error was made, the remedies available to the Seebas after appeal from a final judgment are sufficient to adequately protect their interests. Therefore, this appeal is not reviewable under the collateral order doctrine.
Conclusion: Having found that no final order existed in the instant case and the appeal is not reviewable under the collateral order doctrine, the Court ruled that it lacked jurisdiction over this appeal. Thus, the appeal is dismissed. APPEAL DISMISSED.
Here the district court’s dismissal of a protection order without prejudice is contrary to statute regarding a dismissal without prejudice, so the district court’s order is modified by the Nebraska Court of Appeals.
Holling v. Holling, 16 Neb. App. 394 (2008)
Court of Appeals Headnotes
Statutes:
1. Appeal and Error. Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below.
Courts:
1. Trial: Evidence: Dismissal and Nonsuit. After submission, a trial court has no authority to dismiss a case without prejudice on the basis that a plaintiff has failed to produce sufficient evidence to sustain his or her claims.
Date Filed and Case No.: February 5, 2008. No. A-07-065.
Court Appealed From: District Court for Dawson County: James E. Doyle IV, Judge.
Attorneys for the Appeal: Douglas Pauley and Chris A. Johnson for Tony L. Molling, appellant. No appearance for Kelli D. Molling, appellee.
Judges: Inbody, Chief Judge, and Carlson and Cassel, Judges.
Authored By: Cassel, Judge.
Summary: Kelli D. Holling, on behalf of her minor children, sought a protection order against Tony L. Holling. Kelli represented herself and both parties adduced evidence, the district court found that kelli had failed to establish that she was entitled to have a protection order issued. The court stated, “I’m going to dismiss your petition without prejudice, which means if you need to bring it up again, you can, but you’re going to have to have different proof than you did today.” Upon Tony’s objection, the court stated that when it dismissed without prejudice, it meant that costs would not be assessed against anyone. The court reiterated that Kelli would have the right to bring up additional facts that had not been presented at the hearing that day. Tony appealed to the Nebraska Court of Appeals.
Did the district court err in failing to dismiss Kelli’s action with prejudice? Tony argued that he has already been subjected to trial on Kelli’s request for a protection order and that she failed to prove her allegations. He complained that when the district court dismissed the case without prejudice after a trial on the merits, it effectively handed Kelli a second chance to pursue the identical claims against him. The Court said that § 25-601 enumerates the circumstances in which a trial court may order a dismissal without prejudice, none of which encompasses the situation presented in this case. In the absence of any of these circumstances, a trial court is clearly directed to make its decision upon the merits. “Section 25-601 is unambiguous in its terms” they wrote. “After submission, a trial court has no authority to dismiss a case without prejudice on the basis that a plaintiff has failed to produce sufficient evidence to sustain his or her claims. The district court erred in doing so in the instant case.”
Conclusion: The Court modified the judgment of the district court to dismiss Kelli’s petition with prejudice, and as so modified, affirmed. AFFIRMED AS MODIFIED.
Juvenile Court, Appeal and Error, Juvenile Review Panel
In this juvenile court appeal, the Nebraska Court of Appeals dismisses some of the matters appealed as they should have been brought before the Juvenile Review Panel and otherwise affirms a juvenile court’s termination of parental rights.
In re Interest of Hailey M.
ELaw Headnotes (Not Prepared by Court)
Juvenile Court:
1. Appeal and Error. Juvenile cases are reviewed de novo on the record, and an appellate court is required to reach a conclusion independent of the juvenile court’s findings. In re Interest of Jagger L., 270 Neb. 828, 708 N.W.2d 802 (2006); In re Interest of Vincent P., 15 Neb. App. 437, 730 N.W.2d 403 (2007). When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. Id.
a. Jurisdiction: In a juvenile case, as in any other appeal, before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. In re Interest of Dakota L. et al., 14 Neb. App. 559, 712 N.W.2d 583 (2006).
i. Juvenile Review Panel. Neb. Rev. Stat. § 43-287.03 (Reissue 2004) provides for the review of contested dispositional plans by a juvenile review panel when the court makes an order directing the implementation of a plan different from the plan prepared by the [Department] concerning the care, placement, or services to be provided to the juvenile and the department or any other party believes that the court's order is not in the best interests of the juvenile. ••• It is well established in Nebraska jurisprudence that Neb. Rev. Stat. §§ 43-287.01 through 43-287.06 (Reissue 2004) provide the exclusive means of review for juvenile court dispositional orders within the ambit of the expedited appeal process defined within those statutes. In re Interest of Laura O. & Joshua O., 6 Neb. App. 554, 574 N.W.2d 776 (1998). ••• Such review must be sought from the review panel within 10 days after disposition by the court. § 43-287.04. ••• The proper and exclusive forum for review of a juvenile court's deviation from a case plan recommended by the Department is a juvenile review panel, and a failure to timely seek such review renders this court without jurisdiction to hear an appeal in the case. In re Interest of Crystal T. et al., 7 Neb. App. 921, 586 N.W.2d 479 (1998). See In re Interest of Laura O. & Joshua O., supra. ••• To determine if a matter falls within the expedited juvenile review panel process, a two-part analysis applies. First, the contested dispositional order must implement a different plan for the juvenile than the plan proposed by the Department. Second, the appealing party must have a belief that the court-ordered plan is not in the best interests of the juvenile. In re Interest of Laura O. & Joshua O., supra.
Parental Rights:
1. Termination: In order to terminate parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in § 43-292 exists and that termination is in the child's best interests. In re Interest of Deztiny C., 15 Neb. App. 179, 723 N.W.2d 652 (2006).
a. Best Interests. Children cannot, and should not, be suspended in foster care or be made to await uncertain parental maturity. In re Interest of Phoenix L., 270 Neb. 870, 708 N.W.2d 786 (2006), disapproved on other grounds, In re Interest of Destiny A. et al., 274 Neb. 713, ___ N.W.2d ___ (2007).
Date Filed and Case No.: February 5, 2008. Nos. A-07-604, A-07-605.
Court Appealed From: Separate Juvenile Court of Lancaster County: Roger J. Heideman, Judge.
Attorneys for the Appeal: Franklin E. Miner for Theodore M., appellant. Gary Lacey, Alicia B. Henderson, Michelle A. Paxton, and Ryan M. Mick, Senior Certified Law Student, for State of Nebraska, appellee.
Judges: Inbody, Chief Judge, and Carlson and Cassel, Judges.
Authored By: Carlson, Judge.
Summary: Theodore M. appealed to the Nebraska Court of Appeals from two orders of the juvenile court of Lancaster County; both orders overruling his motion to have his daughter Hailey M. placed with his sister, and one order adjudicating Hailey to be a child within the meaning of Neb. Rev. Stat. § 43-247(3)(a) (Cum. Supp. 2006) and terminating Theodore’s parental rights to her. Hailey was born on October 29, 2005, and the State removed Hailey from her mother’s care on October 30. Hailey was placed in a foster home, where she continues to reside. The State filed a petition alleging that Hailey is a child as defined by § 43-247(3)(a) in regard to her mother and seeking termination of the mother’s parental rights (the mother’s case.) Theodore filed and was granted a motion for leave to intervene in mother’s case, stating that he is Hailey’s biological father. Theodore is incarcerated and the juvenile court found that visitation with Theodore was not in Hailey best interests. Eventually, a petition was filed adjudicating Hailey with regards to Theodore and a petition terminating Theodore’s parental rights with regard to Hailey under § 43-292(2) was filed and proved (parent has substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection.)
Did the juvenile court err in overruling Theodore’s motion requesting that Hailey be placed with his sister? Theodore first assigns that the juvenile court erred in overruling his motion requesting that Hailey be placed with his sister. Neb. Rev. Stat. § 43-287.03 (Reissue 2004) provides for the review of contested dispositional plans by a juvenile review panel when the court makes an order directing the implementation of a plan different from the plan prepared by the Department concerning the care, placement, or services to be provided to the juvenile and the department or any other party believes that the court's order is not in the best interests of the juvenile. The Court said that it is well established in Nebraska jurisprudence that Neb. Rev. Stat. §§ 43-287.01 through 43-287.06 (Reissue 2004) provide the exclusive means of review for juvenile court dispositional orders within the ambit of the expedited appeal process defined within those statutes and such review must be sought from the review panel within 10 days after disposition by the court. The placement issue here meets the two requirements under the statutes and cases, and Theodore's appeal was, therefore, subject to the expedited review by a review panel. Accordingly, a juvenile review panel was the proper and exclusive forum for review of the placement issue, and Theodore failed to timely seek review from the juvenile review panel. Thus, the Court said it had no jurisdiction to consider Theodore's appeal of the juvenile court order which deviated from the Department's plan and denied his motion for placement with his sister.
Were Theodore’s due process rights violated because the juvenile court overruled his motion for placement simultaneously with terminating his parental rights? Theodore had asked the juvenile court to rule on his motion for placement with his sister before the termination trial, but the juvenile court did not do so. Theodore contended that because the juvenile court overruled his motion for placement and terminated his parental rights at the same time, he was deprived of any meaningful review of the court’s order on placement. The Court had previously determined (see above) that the juvenile review panel was the proper forum for Theodore to challenge the juvenile court’s ruling on his motion for placement. Thus, Theodore had an avenue to challenge the placement issue, despite the court’s simultaneous ruling terminating Theodore’s parental rights. Therefore, the Court found that Theodore’s violation of due process assignment of error was without merit.
Did the juvenile court err in finding that it was in Hailey’s best interests to terminate Theodore’s parental rights? In order to terminate parental rights, the State must prove by clear and convincing evidence that one of the statutory grounds enumerated in § 43-292 exists and that termination is in the child’s best interests. Here, the juvenile court found that § 43-292(2) was proved, which provides that parental rights may be terminated if the parent has substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection. The Court determined, after a de novo review of the record, that the State proved by clear and convincing evidence that the ground for termination in § 43-292(2) existed. As to Hailey’s best interests, the evidence showed that Theodore has an extensive criminal history, since at least 1989 to the present, Theodore has committed numerous law violations resulting in repeated and extensive periods of incarceration. “Such actions demonstrate his inability to make decisions in the best interests of his children. He is either unwilling or unable to make choices that would allow him to be a parent to his children. Due to Theodore’s repeated law violations and incarceration, he has historically been unavailable to provide his children with parental care, protection, and maintenance” wrote the Court. In regard to Hailey specifically, Theodore was incarcerated at the time of Hailey’s birth and has been incarcerated continually since. Although he was going through an inpatient treatment program for his drug addiction at the time of trial, once he is released from prison in 2010 or 2013, he would have to demonstrate that he could stay drug free and not resort back to criminal activity. This would result in years of uncertainty for Hailey about her future. Hailey has been with the same foster parents since she was a day old and is doing well. Based on its de novo review of the record, the Court concluded that the juvenile court did not err in finding that terminating Theodore’s parental rights is in Hailey’s best interests.
Conclusion: The Nebraska Court of Appeals found that it had no jurisdiction over Theodore’s appeal in regard to his motion for placement of Hailey with his sister. In regard to termination of Theodore’s parental rights, they found that the ground for termination in § 42-292(2) exists and that termination is in Hailey’s best interests. Thus, they affirmed the termination of Theodore’s parental rights to Hailey. Accordingly, we dismiss Theodore’s appeal in mother’s case (A-07-605) and affirm in part, and in part dismiss Theodore’s appeal in father’s case (A-07-604).
Judgment in No. A-07-604 affirmed in part, and in part dismissed. Appeal in No. A-07-605 dismissed.
In this case, the Nebraska Court of Appeals affirms a district court’s decision that a lessee to property had an option to purchase that property.
Hongsermeier v. Devall, 16 Neb. App. 379 (2008)
Court of Appeals Headnotes
Specific Performance:
1. Equity: Appeal and Error. An action for specific performance sounds in equity, and on appeal, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent from the conclusion reached by the trial court.
2. Proof. A party seeking specific performance must show his or her right to the relief sought, including proof that the party is ready, able, and willing to perform his or her obligations under the contract.
Summary Judgment.
1. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
2. Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
3. Proof. A party moving for summary judgment must make a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence were uncontroverted at trial. ••• Once the moving party makes a prima facie case, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.
Contracts:
1. Conveyances: Real Estate: Options to Buy or Sell. A right of first refusal, rather than an option to purchase real estate, is created by an agreement which (1) contains no terms or conditions of sale; (2) fails to indicate that the party interested in purchasing real estate has an absolute right to demand conveyance of the property at any time prior to the owner’s decision to sell it; and (3) implements the word “first” to indicate that if the owner decides to sell the real estate, he or she is compelled to offer it first to the other party to the agreement.
Real Estate:
1. Vendor and Vendee:
a. Consideration: Notice:
i. Words and Phrases. A good faith purchaser of land is one who purchases for valuable consideration without notice of any suspicious circumstances which would put a prudent person on inquiry.
ii. Proof. The burden of proof is upon a litigant who alleges that he or she is a good faith purchaser to prove that he or she purchased the property for value and without notice; this burden includes proving that the litigant was without notice, actual or constructive, of another’s rights or interest in the land.
b. Equity. The general rule is that a purchaser of real estate takes subject to outstanding equitable interests in the property, which are enforceable against him to the same extent they are enforceable against the vendor, where the purchaser is not entitled to protection as a bona fide purchaser.
c. Claims: Notice. To qualify as a bona fide purchaser of land, one must actually have paid the purchase money before he or she received notice of a claim against the land.
Improvements:
1. Equity: Proof. As a general rule, in order that one may recover compensation for improvements made on another’s land, as equitable relief, three concurrent elements must be shown to exist: (1) The occupant must have made the improvements in good faith; (2) he must have been in possession, actual or constructive, adversely to the title of the true owner; and (3) his possession must have been held under color or claim of title.
2. Title: Notice. An occupant of land is not a possessor in good faith and hence is not entitled to compensation for improvements which he makes thereon after he has notice or knowledge that his title is defective, or notice or knowledge of an adverse title or claim to the property in another.
Date Filed and Case No.: February 5, 2008. No. A-06-521.
Court Appealed From: District Court for Hamilton County: Michael Owens, Judge.
Attorneys for the Appeal: Patrick A. Brock for Ronald D. Devall and Lonya L. Devall, Husband and Wife, appellants. Tanya J. Janulewicz for Jennifer Lynn Hongsermeier, appellee.
Judges: Irwin, Sievers, and Moore, Judges.
Authored By: Moore, Judge.
Summary: Ronald D. Devall and Tonya L. Devall, husband and wife, appealed to the Nebraska Court of Appeals from an order which granted summary judgment in favor of Jennifer Lynn Hongsermeier. In February 2003, Jennifer; her father, Ivan Hongsermeier; and her uncle, Wayne Hongsermeier, entered into a memorandum of understanding. The memorandum was apparently part of an agreement between Ivan and Wayne to dissolve a partnership between them. As part of the agreement, a tract of real estate that is subject to this lawsuit was conveyed to Wayne. The conveyance to Wayne was subject to a 10-year lease with Jennifer as lessee, which lease required Jennifer to pay the real estate taxes on the property. Jennifer was also granted a right of first refusal with respect to the real estate should it be sold. The court found that Jennifer had a valid right of first refusal with regard to any offer to purchase certain real property and that the Devalls were not good faith purchasers of the property in question. The court ordered the Devalls to convey the property to Jennifer upon receipt from her of consideration consistent with the terms of the right of first refusal.
Did the district court err in granting Jennifer’s motion for summary judgment?
1. Re: Jennifer’s Right of First Refusal. The Court said that the parties did not question that what was created in the memorandum of understanding and the farm lease was a right of first refusal. There was no dispute in the record that the Devalls, Beverly Hess (the real estate broker who represented the Devalls), and Wayne's real estate broker, Melvin Meyer, did not inform Jennifer of the Devall offer. Although Meyer requested a letter from Jennifer's attorney, Galen Stehlik, concerning Jennifer’s exercise of her right, the record shows that Meyer did not inform Stehlik his request was in reference to the Devall offer and shows that Stehlik did not communicate with Jennifer prior to drafting and sending out the letter. While the Devalls may have relied on Stehlik’s letter and the assurances of Meyer and Wayne in closing the transaction, without evidence that the Devall offer had been presented to Jennifer, Stehlik’s letter did not act as an effective waiver of Jennifer’s right relative to the Devall offer. The district court found no genuine issue of material fact concerning Jennifer’s entitlement to be notified of the Devall offer and the lack of notice to her, and the Court found no error in this finding.
2. Re: Devalls Were Not Good Faith Purchasers. The district court determined that the Devalls were not good faith purchasers of the real property. The burden of proof is upon a litigant who alleges that he or she is a good faith purchaser to prove that he or she purchased the property for value and without notice and this burden includes proving that the litigant was without notice, actual or constructive, of another’s rights or interest in the land. To qualify as a bona fide purchaser of land, one must actually have paid the purchase money before he or she received notice of a claim against the land. Here, the Court said it is uncontradicted that the Devalls became aware of Jennifer’s right of first refusal prior to the January 28, 2005, closing date. Accordingly, the Court found that the Devalls were not good faith purchasers and were bound by Jennifer’s right of first refusal.
3. Re: Jennifer’s Exercise of Right of First Refusal. The Court disagreed with the Devalls arguement that there are issues of material fact concerning the terms under which Jennifer could exercise her right. They wrote the record is clear that Wayne initially accepted the Devall offer to purchase the property for $181,500, but that when he was unable to buy out the farm lease held by Jennifer, he agreed to give the Devalls a credit of $21,500 at the time of closing in return for accepting the terms of the existing farm lease. (In other words, in exchange for not having to buy out the farm lease, Wayne agreed to accept a purchase price in terms of actual dollars received of $160,000.) As a result, the district court found that the terms of the Devall offer were for a purchase price of $160,000 and that Jennifer should be given the opportunity to purchase the property under those terms. The right of first refusal given to Jennifer specifies that she be given the right to purchase Wayne’s interest in the property under the same terms and conditions as those of any offer accepted by Wayne for the sale of his interest in the property. As such, even if Jennifer had been notified of the $181,500 offer and had chosen not to exercise her option relative to that offer, she still was entitled to notice of the $160,000 offer and had the right to exercise her option relative to that offer as well. The Court found find no error in the district court’s findings as to the terms under which Jennifer could exercise her right of first refusal.
4. Re: Specific Performance. The Devalls presented certain arguments as to whether there are issues of material fact concerning Jennifer’s financial ability to perform under the right of first refusal. A party seeking specific performance must show his or her right to the relief sought, including proof that the party is ready, able, and willing to perform his or her obligations under the contract and must make a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence were uncontroverted at trial. Once the moving party makes a prima facie case, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion. Here, the Devalls presented no direct evidence to contradict the assertion in Jennifer’s affidavit, only pointing to evidence that Jennifer was unable to meet the financial requisites of the Dalton offer. The Court agreed with the district court’s conclusion that Jennifer’s financial inability to purchase the property at the time of the Dalton offer under the terms of the Dalton offer was irrelevant to the question of whether in January 2005 she was financially able to complete a purchase under the terms of the Devall offer.
5. Conclusion regarding Summary Judgment. Viewing the evidence in the light most favorable to the Devalls and giving them the benefit of all reasonable inferences deducible from the evidence, the Court concluded that the district court did not err in granting summary judgment in Jennifer’s favor.
Did the district court erred in failing to consider and address the Devall’s claim that their improvements to the property unjustly enriched Jennifer? Although the court’s summary judgment order did not specifically address this claim by the Devalls, the court indicated that it was denying any request for relief not specifically granted by its order. Looking at the general rule regarding recovery for improvements made on another’s land, because the Devalls made the improvements with knowledge of the lease and right of first refusal, they were not entitled to recover on their claim. Therefore the Court found no error in the denial of the Devalls’ claim for compensation for improvements made to the property.
Conclusion: The Court found that the district court did not err in granting summary judgment in Jennifer’s favor or in denying the Devalls’ claim with respect to improvements made to the property. AFFIRMED.
