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Donut Holdings, Inc. v. Risberg

Supreme Court of Nebraska

September 30, 2016

Donut Holdings, Inc., appellant,
v.
William Risberg, appellee, and Risberg Stores, L.L.C., Intervenor-Appellee.

         1. Judgments: Appeal and Error. In a bench trial of a law action, the trial court's factual findings have the effect of a jury verdict and will not be disturbed on appeal unless clearly wrong.

         2. ___:___. An appellate court independently reviews questions of law decided by a lower court.

         3. Actions: Default Judgments: Proof. In Nebraska, where a defendant has filed an answer, the fact that the defendant does not appear for trial does not entitle the plaintiff to a judgment without proof of the facts constituting the plaintiff's cause of action, unless the facts admitted by the defendant in the answer make out a prima facie case in the plaintiff's favor.

         4. Contracts: Parties: Intent. An implied in fact contract arises where the intention of the parties is not expressed in writing but where the circumstances are such as to show a mutual intent to contract. The determination of the parties' intent to make a contract is to be gathered from objective manifestations-the conduct of the parties, language used, or acts done by them, or other pertinent circumstances surrounding the transaction.

         5. Contracts: Intent. If the parties' conduct is sufficient to show an implied contract, it is just as enforceable as an express contract.

         Appeal from the District Court for Lancaster County: Andrew R. Jacobsen, Judge.

          Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellant.

         [294 Neb. 862] No appearance for appellee.

          No appearance for intervenor-appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and Funke, JJ.

          Kelch, J.

         NATURE OF CASE

         This case presents the issue of whether a franchisor has a breach of contract claim against a "holdover franchisee"-a franchisee who continues to receive the benefits of an expired franchise agreement, but fails to make payments to the franchisor per the agreement.

         BACKGROUND

         Donut Holdings, Inc. (DHI), is the Nebraska parent corporation of LaMar's Donuts International, Inc. (LaMar's). LaMar's is a franchise company with nine franchisees, including one in Springfield, Missouri. In 2002, the Springfield store was purchased by Risberg Stores, L.L.C., a Missouri entity. At that time, the store was operating under the terms of a 1994 franchise agreement entered into by Risberg Store's predecessor. This case arises from DHI's claim against William Risberg, the owner of Risberg Stores, and Risberg Stores, as intervenor (collectively Risberg Stores), for royalty and marketing fees accruing after June 2009. In Risberg Store's answer to DHI's complaint, Risberg Stores took the position that it did not owe DHI any fees because the parties' written agreement ...


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