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.
___:___. An appellate court independently reviews questions
of law decided by a lower court.
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.
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.
Contracts: Intent. If the parties'
conduct is sufficient to show an implied contract, it is just
as enforceable as an express contract.
from the District Court for Lancaster County: Andrew R.
K. Barber, of Barber & Barber, P.C., L.L.O., for
Neb. 862] No appearance for appellee.
appearance for intervenor-appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and
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.
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