Bachman v. Easy Parking of America, Inc.

• Decision Date: 24 April 1997
• Docket Number: No. S-95-178,S-95-178
• Citation: 252 Neb. 325,562 N.W.2d 369
• Parties: John Q. BACHMAN, Trustee, Appellant, v. EASY PARKING OF AMERICA, INC., a Nebraska corporation, Appellee.
• Court: Nebraska Supreme Court

Page 369

562 N.W.2d 369

252 Neb. 325

John Q. BACHMAN, Trustee, Appellant, v. EASY PARKING OF AMERICA, INC., a Nebraska corporation, Appellee.

No. S-95-178.

Supreme Court of Nebraska.

April 24, 1997.

Syllabus by the Court

1. Breach of Contract: Damages: Appeal and Error. A suit for damages arising from breach of contract presents an action at law. 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. Contracts. A contract is viewed as a whole in order to construe it.

3. Contracts. Contract language is to be accorded its plain and ordinary meaning as ordinary, average, or reasonable persons would understand it.

4. Contracts. Generally, the unilateral mistake of one party does not relieve that party from its obligation under a contract absent a showing of fraud, misrepresentation, or other inequitable conduct.

5. Breach of Contract: Damages. The proper measure of damages in a contract action is the losses sustained by reason of a breach.

6. Landlord and Tenant: Damages: Abandonment. A landlord has a duty to relet the premises in order to mitigate damages Michael D. Nelson, of Nelson Law Office, Omaha, for appellant.

when a tenant abandons the premises prior to the expiration of a lease.

Scott H. Rasmussen, of Brown & Brown, P.C., Omaha, for appellee.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and BUCKLEY, D.J.

BUCKLEY, District Judge.

This is an action for the recovery of alleged damages incurred by the appellant-lessor, John Q. Bachman, resulting from the breach of a commercial real estate lease of a surface parking lot by the appellee-lessee, Easy Parking of America, Inc. (Easy Parking).

BACKGROUND

The facts are essentially undisputed. Bachman was at all relevant times the trustee for the owners of real estate described as the south 54 feet of Lot 1, and all of Lot 8, Block 91, City Lots, Original City of Omaha, Douglas County, Nebraska. Easy Parking is a subsidiary of Allright Parking and is a Nebraska corporation with its principal place of business in Omaha.

In March 1991, Bachman and Vincent Smith discussed the possibility of Bachman's leasing the parking lot located at 1102 Dodge Street in Omaha to Easy Parking. Smith was the president of Easy Parking and had been employed for 9 years by Easy Parking's parent company, Allright Parking. Smith's duties included the securing of leases for parking lots.

On or about March 22, 1991, Bachman offered to lease the said surface parking lot for $500 per month to Easy Parking. Easy Parking accepted the offer on or about April 1. The parties utilized Easy Parking's standard lease form, with Bachman supplying the legal description of the property. The lease was ultimately executed on May 31.

The description of the property leased was "[t]he surface parking lot located on the south 54 feet of Lot 1 and all of Lot 8, Block 91, City [L]ots, Original City of Omaha, Douglas County, Nebraska, commonly known as 1102 Dodge." The term of the lease was from June 1, 1991, through May 31, 1996, unless earlier terminated, for a total rent of $30,000, payable in monthly payments of $500, due on the first day of each month.

Bachman did not indicate that a building was located on any portion of the property; however, a building occupied most of Lot 8. Bachman testified that Lot 8 was included because the north side of the building, which abutted Lot 1, had parking space numbers affixed to it and the gravel parking lot went right up to the north end of the building.

As soon as the lease was executed, Smith mistakenly had flyers placed upon cars in a parking lot located on Lot 7, informing the owners of their new management. Smith was informed on the next day, June 1, that Bachman did not own or have title to the parking lot located on Lot 7 but had the parking lot immediately to the north of the building on Lot 8.

Andrew Travis, Easy Parking's legal counsel, sent a letter to Bachman, antedated May 31, 1991, claiming that the lease agreement was null and void by reason of mistake and failure of mutuality. Bachman responded by letter dated June 3, 1991, stating that he was not mistaken as to the surface lot which was leased and expressing his expectation of receiving rent as per the lease agreement. Bachman sent another letter dated July 22, 1991, regarding Easy Parking's failure to pay the July 1991 rent and to otherwise comply with the terms of the lease agreement. Travis responded with a letter dated July 26, 1991, again restating Easy Parking's refusal to accept possession of the surface parking lot. Easy Parking at no time took possession of any of the property or made any payments under the lease agreement.

Bachman attempted to re-lease the property, resulting in a lease with Campbell Soup Company to commence December 1, 1992. In order to obtain this lease, Bachman had the existing building on Lot 8 torn down and had the entire area resurfaced. This lease Bachman filed this action prior to the lease with Campbell Soup Company. Upon the execution of the lease with Campbell Soup Company, Bachman amended his petition to reflect lost rent of $9,000 for the 18 months the surface parking lot had remained vacant at the agreed-upon rate of $500 per month. Until then, Bachman had not relieved Easy Parking of its obligation under the lease agreement. Easy Parking counterclaimed to have a rescission of the written lease agreement on the grounds of mutual mistake of fact and failure of mutuality.

was for an initial rental period of 24 months, at a rate of $1,500 per month, for a total rental of $36,000. This lease was for a period of time that was within the entire term of the original lease between Bachman and Easy Parking.

The case was tried to the district court on October 27, 1993. By written order dated January 4, 1995, the district court found that both parties were mistaken as to the lease agreement for different reasons, that Bachman had no damages, and that it would be unconscionable to allow Bachman to recover. Whereupon, the court dismissed both Bachman's petition and Easy Parking's counterclaim. Bachman's motion for new trial was overruled, and this appeal followed. Easy Parking did not appeal the trial court's dismissal of its counterclaim.

We transferred the case to this court's docket pursuant to Neb.Rev.Stat. § 24-1106 (Reissue 1995), which permits us to regulate the caseloads of the Nebraska Court of Appeals and this court.

ASSIGNMENTS OF ERROR

Bachman assigns as error the court's findings that (1) Bachman was mistaken as to the inclusion of the building as part of the leased parking area, (2) Bachman had no damages, and (3) it would be unconscionable to allow Bachman to recover damages.

STANDARD OF REVIEW

A suit for damages arising from breach of contract presents an action at law. 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. Production Credit Assn. v. Eldin Haussermann Farms, 247 Neb. 538, 529 N.W.2d 26 (1995).

ANALYSIS

Bachman first assigns as error the trial court's finding that he was mistaken as to the inclusion of the building as part of the leased surface parking area. In order to determine if this error has merit, it is necessary to examine the contract. We have stated that we view a contract as a whole in order to construe it. Baker's Supermarkets v. Feldman, 243 Neb. 684, 502 N.W.2d 428 (1993); Porter v. Smith, 240 Neb. 928, 486 N.W.2d 846 (1992); T.V. Transmission v. City of Lincoln, 220 Neb. 887, 374 N.W.2d 49 (1985). Contract language is also to be accorded its plain and ordinary meaning as ordinary, average, or reasonable persons would understand it. Daehnke v. Nebraska Dept. of Soc. Servs., 251 Neb. 298, 557 N.W.2d 17 (1996); Rains v. Becton, Dickinson & Co., 246 Neb. 746, 523 N.W.2d 506 (1994); Murphy v. City of Lincoln, 245 Neb. 707, 515 N.W.2d 413 (1994).

When viewed as a whole, it is clear that the parties intended to lease a surface parking lot, not a building. This intent is evidenced by the language throughout the lease identifying the property to be leased as "the surface parking lot." The lease remains silent as to the mention of any building. Similarly, paragraph 4.1 of the lease provides that "premises are leased for use only as a commercial automobile parking facility." Further, common sense dictates that a rental price of $500 per month is not reasonable if the building were to be included as well as the surface lot.

Again, the property leased was "[t]he surface parking lot located on the south 54 feet of Lot 1 and all of Lot 8...." (Emphasis supplied.) There is no comma between "Lot 1" and "and all of Lot 8," which would have lent weight to the claim that the surface parking lot was located only on Lot 1 and not on Lot 8.

Bachman testified that he never intended to include the building on Lot 8 in the lease. In response to the question, "As of May 31 There was a gravel parking lot located on what I would consider the north portion of the parcel. And when I say "the parcel," I mean the south 54 feet of Lot 1 and Lot 8. A survey was never done so I could not tell you exactly where the parking lot--gravel...