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Bauermeister Deaver Ecology Land Use Dev., LLC v. Waste Management Co. of Nebraska, Inc.

Supreme Court of Nebraska

May 15, 2015

BAUERMEISTER DEAVER ECOLOGY LAND USE DEVELOPMENT, LLC, AS SUCCESSOR IN INTEREST TO DOROTHY L. BAUERMEISTER, INDIVIDUALLY, ET AL., APPELLANT,
v.
WASTE MANAGEMENT CO. OF NEBRASKA, INC., APPELLEE

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[Copyrighted Material Omitted]

Page 133

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge.

David A. Domina and Christopher A. Mihalo, of Domina Law Group, P.C., L.L.O., for appellant.

Thomas A. Grennan, Adam J. Wachal, and Abbie M. Schurman, of Gross & Welch, P.C., L.L.O., for appellee.

HEAVICAN, C.J., CONNOLLY, MCCORMACK, and MILLER-LERMAN, JJ., and IRWIN, Judge. WRIGHT, STEPHAN, and CASSEL, JJ., not participating.

OPINION

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HEAVICAN, J.

[290 Neb. 900] INTRODUCTION

This case was originally docketed as an action for specific performance and an accounting. The two actions were severed, with this court and the Nebraska Court of Appeals finding for Dorothy Bauermeister and the other plaintiffs[1] with respect to the specific performance action. On remand, Waste Management Co. of Nebraska, Inc. (WMN), was ordered to, and did, convey title of the disputed property to the plaintiffs, subject to specified exceptions.

[290 Neb. 901] The accounting action then proceeded. The district court found primarily for WMN. Bauermeister Deaver Ecology Land Use Development, LLC (BDELUD),

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successor in interest to the plaintiffs, appeals. We affirm.

FACTUAL BACKGROUND

Fred and Dorothy Bauermeister and Richard and Clara Deaver entered into an agreement with WMN on March 22, 1989, for the sale of 280 acres of farmland. WMN intended to build a landfill on this property. This agreement provided that WMN, as the purchaser, pay on a monthly basis to the Bauermeisters and the Deavers, as sellers, $3,000 in base rent and another $1, later adjusted to $1.15, per ton of refuse added to the landfill (referred to as the " royalty fee" or " royalty payment" ).

As relevant to this appeal, paragraph 6 of the agreement, dealing with the construction of improvements, provided:

Purchaser, at its cost, shall have the right to make any alternations, modifications or improvements to the Premises including, without limitation: (a) the demolition of existing facilities without replacement thereof and renovation of existing facilities; (b) the right to construct roads, berms, ditches, stream diversions, embankments, temporary waste holding and storage facilities, office and garage facilities[,] laboratories, equipment shelters and any and all other facilities or land improvements necessary or required for Purchaser's operations (including storage and maintenance of Purchaser's waste collection vehicles); (c) the right to excavate, extract and, except as otherwise provided herein, relocate on the Premises for any purpose, gravel, soil, clay and all other minerals, materials and substances of any nature whatsoever (whether solid, liquid or gaseous) produced at or under the Premises or emanating therefrom or incident to the utilization of the Premises as a Landfill (title to all of such substances being, upon extraction thereof from the Premises, the sole and exclusive property of Seller[s], except that the title to any gas generated by the Refuse shall remain the sole and exclusive property of [290 Neb. 902] Purchaser); (d) the right to drill and establish water wells, install utilities, such as, but not limited to, electric lines, sewer lines, gas lines, underground storage tanks and telephone lines; (e) the right to carry out all gasification, waste handling, storage, treatment, disposal and similar operations, including, but not limited to, ponding, cover stock piling, fill and cover placement and compaction, drainage, pollution and nuisance prevention; and (f) the right to deposit subject to applicable permit within the Premises, all manner and form of solid and liquid waste materials. Seller[s] reserve[] for themselves, their successors, heirs and assigns, all insitu oil, gas and mineral deposits located on the Premises, and the right to extract from the Premises such deposits so long as such extraction in no way interferes with the conduct of Purchaser's Landfill operations.

Paragraph 10 of the agreement, entitled " Taxes," stated:

Purchaser covenants that it will promptly pay, as and when they become due, all real estate taxes and assessments against the Premises, and all levies and impositions of any nature relating to or imposed upon the Premises. Purchaser's obligations to pay real estate taxes shall continue beyond closure of the Landfill site and remain until such time as the Premises no longer require post-closure monitoring as provided in Paragraph 17 hereof.

Paragraph 14, regarding the removal of improvements, provided:

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The parties hereto understand and agree that title to all buildings, equipment and other improvements (collectively, " Improvements" ) installed, constructed or located by Purchaser upon the Premises shall remain in Purchaser and the same shall at all times remain Purchaser's personal property regardless of the nature of fixation to the Premises. Should Seller[s] exercise their option to purchase contained in Paragraph 30 hereof, Purchaser shall remove, unless otherwise agreed to in writing by Purchaser and Seller[s], all such Improvements that Purchaser has installed, constructed or located upon the [290 Neb. 903] Premises, except those Improvements required or necessary to protect the environment, provided the same shall be removed within sixty (60) days after the termination or cancellation of this Agreement, or any extension thereof, for any reason. Title to any Improvements not so removed by Purchaser shall vest in Seller[s].

Paragraph 16 provided for closure and postclosure monitoring of the landfill:

After termination of this Agreement and the exercise of Seller[s] of their option contained in Paragraph 30 hereof, for any reason, Seller[s] shall not disturb the integrity of the cover materials placed over the Premises in any manner, whether through excavation, cultivation, boring, regrading or otherwise, nor construct any structures on the Premises (except that paving shall be permitted), nor alter any venting wells, vegetation or drainage then existing at the Premises unless Purchaser expressly consents to such activity until such time as the Premises no longer require post-closure monitoring. . . .
After the termination of this Agreement and the exercise of Seller[s] of their option contained in Paragraph 30 hereof, for any reason, Purchaser shall be granted access to the Premises to conduct such post-operation care, maintenance and monitoring of the Premises as it deems advisable, and/or shall be required by the then regulating government agency responsible for the oversight of the operation of sanitary landfills, and Purchaser shall continue to care for, maintain and monitor the Landfill site for the greater of a period of ten (10) years or until such regulating government agency determines that such post-closure care is no longer required.

Finally, paragraph 30 provided for the sellers' option to buy:

If Seller(s), their successors or heirs so choose, Seller(s) shall have the option to repurchase all or any portion of the Premises from Purchaser in consideration for the sum of One Dollar ($1.00), at the termination, for any reason, of this Agreement, and Purchaser shall be obligated to [290 Neb. 904] sell the Premises to Seller(s), their successors or heirs, if they so choose. Seller[s'] option may be exercised from the date of termination of the ...

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