Summary
The Nebraska Supreme Court reviewed an appeal from summary judgment in a dispute involving an exclusive real estate listing agreement for the sale of a feedyard. The court addressed the timeliness of summary judgment, continuance requests, brokerage commissions and protection periods, tortious interference, civil conspiracy, damages, and attorney fees for frivolous litigation. The judgment was affirmed in part and reversed and remanded in part with directions.
Topics
Practice areas
Questions Presented
- Whether the district court abused its discretion by denying GCE additional time to conduct depositions before ruling on defendants' summary-judgment motions.
- Whether GCE specifically preserved and argued a material factual dispute sufficient to challenge summary judgment.
- Whether GCE's breach-of-contract claim concerning the listing and protection-period provisions was frivolous.
- Whether GCE's conspiracy and tortious-interference claim was frivolous or pursued after GCE should have known it could not prevail.
- Whether the district court properly awarded and allocated attorney fees under Neb. Rev. Stat. § 25-824.
- Whether the cross-appeal concerning disqualification of GCE's counsel was moot.
- Whether the district court abused its discretion by refusing to impose joint and several fee liability on GCE's attorneys.
Holdings
- The district court did not abuse its discretion by denying GCE's request for additional time to take depositions because GCE failed to establish good cause and had been dilatory in pursuing discovery.
- GCE failed to preserve a substantive challenge to summary judgment because it did not specifically assign and argue any material factual dispute.
- GCE was not entitled to a commission because it did not produce a buyer who was ready, willing, and able to purchase during the listing period on the listing terms or on terms acceptable to Oshkosh Feedyard.
- The protection-period clause did not entitle GCE to a commission because no contract, sale, transfer, exchange, or conveyance occurred during the two-month protection period.
- GCE waived the provision requiring Oshkosh Feedyard to refer prospective buyers and refrain from negotiating directly with them.
- GCE failed to show that any alleged breach proximately caused its claimed commission damages.
- The conspiracy claim depended on an underlying tort, and GCE failed to present evidence of an agreement, intentional unjustified interference, or proximate causation; however, the claim was not frivolous for purposes of attorney fees.
- The award was proper as to the frivolous breach-of-contract claim against Jessen and Oshkosh Feedyard, but improper as to the conspiracy claim and as to defendants who were sued only on that claim.
- The cross-appeal concerning disqualification of GCE's counsel was moot because Jessen and Oshkosh Feedyard prevailed on summary judgment and did not seek to relitigate that result.
- The district court did not abuse its discretion by assessing the attorney fees solely against GCE rather than imposing joint and several liability on GCE's attorneys.
Key quotations
“As a prerequisite for a continuance, additional time, or other relief, a party is required to submit an affidavit stating a reasonable excuse or good cause for the party’s inability to oppose a summary judgment motion.” (at 801)
“A civil conspiracy is actionable only if the alleged conspirators actually committed some underlying misconduct.” (at 813-814)
“Frivolous for the purposes of § 25-824 is defined as being a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant’s position in the lawsuit.” (at 816)
“Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question.” (at 817)
Factual background
George Clift Enterprises entered into a 12-month exclusive listing agreement with Oshkosh Feedyard to sell a feedyard for $4.5 million, including a two-month protection period after termination. Potential purchasers contacted both GCE's agent and the seller, but during the listing period they were still exploring properties and made no offer; the eventual sale to an entity formed by the purchasers occurred in December 2014, after both contractual periods had expired. GCE's agent knew of the purchasers' direct communications with the seller and encouraged them to continue negotiating directly, stating that the owner and agent would resolve the listing agreement. GCE later sued the seller, its president, and the purchasers for breach of contract, tortious interference, and conspiracy.
Procedural history
GCE initially sued Oshkosh Feedyard in 2014, but that action was dismissed without prejudice for lack of prosecution in 2017. GCE filed a new action in September 2017 and amended its complaint in February 2018. The district court denied or resolved various discovery motions, denied a requested continuance, granted defendants' motions for summary judgment, and awarded attorney fees. The Nebraska Supreme Court affirmed summary judgment, reversed the attorney-fee award in part, held the disqualification issue moot, and remanded for reassessment of fees owed to Jessen and Oshkosh Feedyard.
Remand instructions
Reassess the amount of attorney fees awarded to Jessen and Oshkosh Feedyard, limiting fees to those incurred in defending the first cause of action. No attorney fees may be awarded for the second cause of action or to Betley, Braun, Matzke, and Oshkosh Heifer Development, who were sued solely on that cause of action.