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Griffith v. Drew's LLC

Supreme Court of Nebraska

March 27, 2015

THOMAS R. GRIFFITH AND HEATHER GRIFFITH, APPELLEES,
v.
DREW'S LLC, APPELLANT

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Appeal from the District Court for Custer County, Karin L. Noakes, Judge, on appeal thereto from the County Court for Custer County, Tami K. Schendt, Judge. Judgment of District Court affirmed.

Matthew S. McKeever, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for appellant.

Christopher P. Wickham, of Sennett, Duncan, Jenkins & Wickham, P.C., L.L.O., for appellees.

Heavican, C.J., Wright, Connnnolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

OPINION

Page 755

[290 Neb. 511] Cassel, J.

INTRODUCTION

After two buyers closed on their purchase of a building that had formerly been leased as a dental clinic, they discovered that the interior doors had been removed. They sued the seller. The county court entered judgment for the buyers and awarded damages based on the cost they paid for replacement doors. The district court affirmed. Upon further appeal, we conclude that the doctrine of merger did not bar their claim and that the doors were fixtures rather than trade fixtures. We affirm.

BACKGROUND

For ease of understanding, we generally refer to the parties as " the buyers" and " the seller" throughout this opinion. But for the sake of completeness, we identify the respective parties. The buyers, Thomas R. Griffith and Heather Griffith, purchased the real estate from the seller, Drew's LLC. The seller's sole member was Andrew Solomon. Although we recognize that this business entity is a legal entity separate and distinct from its member, for purposes of this opinion, we will refer to the business entity and its member interchangeably as " the seller." The buyers and the seller signed a purchase agreement on February 8, 2012.

The seller had previously renovated the building for use as a dental clinic. Through May 2012, the seller leased the property to a dental practice owned by the seller's wife (former tenant). The former tenant

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began operating at a new location in January 2012.

The buyers planned to transform the building into their personal residence. The buyers first viewed the interior of [290 Neb. 512] the property with the seller in approximately November 2011. At that time, the dental practice was still operating in the building.

The buyers also viewed the property after the dental practice had relocated. The buyers could not recall the exact date of the visit, but one of the buyers testified that " [i]t was between the February date and the closing date." Presumably, " the February date" referred to the date of the purchase agreement. Although the dental equipment was no longer in the building, the interior doors remained.

The parties never discussed whether the interior doors would stay with the property. At no time did the seller state that the doors were excluded from the purchase agreement. The seller and the former tenant removed the doors on Memorial Day 2012.

The parties closed on the property on June 1, 2012. The buyers did not inspect the property within the 24-hour period immediately before the closing, even though the purchase agreement would have permitted them to do so. After closing, one of the buyers discovered that the interior doors had been ...


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