Raymond J. O'Connor and Jennifer S. O'Connor. HUSBAND AND WIFE, APPELLEES,
KEARNY Junction, L.L.C., a Nebraska limited LIABILITY COMPANY, APPELLANT.
Specific Performance: Equity: Appeal and
Error. An action for specific performance sounds in
equity, and on appeal, an appellate court tries factual
questions de novo on the record and, as to questions of both
fact and law, is obligated to reach a conclusion independent
from the conclusion reached by the trial court.
Equity: Appeal and Error. On appeal from an
equity action, when credible evidence is in conflict on
material issues of fact, the court considers and may give
weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over another.
Actions: Final Orders: Appeal and Error. The
law-of-the-case doctrine reflects the principle that an issue
litigated and decided in one stage of a case should not be
relitigated at a later stage. The doctrine requires a final
order. A party is not bound by a court's findings in an
order that it was not required to appeal.
Summary Judgment: Final Orders. Partial
summary judgments are usually considered interlocutory. They
must ordinarily dispose of the whole merits of the case to be
Estoppel. When a party has unequivocally
asserted a position in a proceeding and a court accepts that
position, judicial estoppel can bar that party's
inconsistent claim against the same or a different party in a
6. __ .
Judicial estoppel should be applied with caution within a
Contracts: Specific Performance. In an
action where specific performance is decreed, courts
ordinarily attempt to place the parties in [295 Neb. 982] the
same position in which they would have been if the contract
had been performed at the time agreed upon.
Damages: Proof. While damages need not be
proved with mathematical certainty, neither can they be
established by evidence which is speculative and conjectural.
__ . Mitigation of damages is an affirmative defense, as to
which the defendant has the burden of proof.
Vendor and Vendee: Specific Performance. The
general rule is that from the time when a contract of sale of
land should be performed the land is in equity the property
of the vendee held by the vendor in trust for him, and the
purchase price is the property of the vendor held in trust
for him by the vendee, and that upon specific performance the
vendor is liable to account for the rents and profits and the
vendee for the interest on the purchase price.
Equity. Equity treats things agreed to be
done as actually performed.
Courts: Equity. Where a situation exists
which is contrary to the principles of equity and which can
be redressed within the scope of judicial action, a court of
equity will devise a remedy to meet the situation.
from the District Court for Buffalo County: Mark J. Young,
Judge. Affirmed as modified.
Kenneth F. George and Luke M. Simpson, of Ross, Schroeder
& George, L.L.C., for appellant.
R. Baack, of Leininger, Smith, Johnson, Baack, Placzek &
Allen, for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
assignees of a purchase option in a lease of real estate
sought specific performance. The landlord initially resisted,
asserting that a condition precedent had not been fulfilled.
The landlord later moved for specific performance, which was
ordered, but now appeals from a judgment awarding equitable
monetary relief for lost rentals. We conclude that based on
the content of the motion and the resulting order, the
landlord [295 Neb. 983] was judicially estopped from
asserting the condition precedent in avoidance of equitable
monetary relief. Because we also conclude that the landlord
was entitled to offset the monetary award with the interest
on the unpaid purchase price, we modify that part of the
judgment. As so modified, we affirm the court's judgment.
Junction, L.L.C. (Landlord), leased commercial real estate to
a third party (Tenant), who was not a party to this suit. The
lease agreement provided an option to purchase
"conditional upon [Tenant's] full and faithful
performance of all of [Tenant's] duties and obligations
under the Lease." These words created a condition
2007, Tenant assigned this purchase option to Raymond J.
O'Connor and Jennifer S. O'Connor, husband and wife
(Assignees). At the time, Tenant had fully performed all
obligations under the lease.
several years after the assignment, Tenant paid less than the
full amount of the rent. The parties disputed who discovered
the underpayment. But Landlord conceded that it had agreed
Tenant could pay the delinquent rent and continue the lease.
Tenant did so and thereafter paid the full monthly rental
Assignees' Attempt to Exercise Option
October 2013, Assignees attempted to exercise the purchase
option. At the time of the attempted exercise, no rent was
past due. Nonetheless, Landlord rebuffed their attempt,
returning their tendered downpayment. Landlord maintained
that because of the rental underpayments, Tenant had failed
to satisfy the condition precedent. Further, Landlord
maintained that the condition precedent could never be met.
objected and argued that the default had been cured. But
Landlord contended that with respect to the purchase option,
the acceptance of rent did not waive the default.
Neb. 984] 2. Settlement Negotiations and Lawsuit
and Landlord attempted to resolve the dispute by negotiating
through counsel. After these negotiations were unsuccessful,
Assignees filed a complaint in March 2014 and sought (1) a
declaratory judgment determining that they had a valid
purchase option and had duly exercised that option to
purchase and (2) specific performance of the purchase option
and costs associated with the action. Landlord filed an
answer that asserted the option was lost and forfeited upon
the default in rent.
its stated position, Landlord offered in October 2014 to sell
the property to Assignees and value the property pursuant to
the terms of the purchase option by averaging three
appraisals. However, a disagreement arose as to the selection
of the three appraisers and the negotiations apparently
November 2014, Assignees obtained permission to amend their
complaint. Before they filed their amended complaint,
Landlord filed a motion. The district court treated it as a
motion for ...