Griffith v. Drew's LLC
| Decision Date | 27 March 2015 |
| Docket Number | No. S–14–456,S–14–456 |
| Citation | 860 N.W.2d 749 |
| Parties | Thomas R. Griffith and Heather Griffith, appellees, v. Drew's LLC, appellant. |
| Court | Nebraska Supreme Court |
Matthew S. McKeever, of Copple, Rockey, McKeever & Schlecht, P.C., L.L.O., for appellant.
Christopher P. Wickham, of Sennett, Duncan, Jenkins & Wickham, P.C., L.L.O., for appellees.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
1. Appeal and Error.To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the party's brief.
2. Courts: Appeal and Error.The district court and higher appellate courts generally review appeals from the county court for error appearing on the record.
3. Judgments: Appeal and Error.When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Judgments: Appeal and Error.In instances when an appellate court is required to review cases for error appearing on the record, questions of law are nonetheless reviewed de novo on the record.
5. Trial: 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, which an appellate court will not disturb on appeal unless clearly wrong. And an appellate court does not reweigh the evidence but considers the judgment in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party.
6. Real Estate: Property: Annexation.Whether an article annexed to the real estate has become a part thereof is a mixed question of law and fact.
7. Damages.While the amount of damages presents a question of fact, the proper measure of damages presents a question of law.
8. Rules of Evidence.In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility.
9. Judges: Evidence: Appeal and Error.The exercise of judicial discretion is implicit in determining the relevance of evidence, and a trial court's decision regarding relevance will not be reversed absent an abuse of discretion.
10. Deeds: Merger.The rule or doctrine of merger is that upon the delivery and acceptance of an unambiguous deed, all prior negotiations and agreements are deemed merged therein. This rule is equally applicable where prior oral negotiations result in a written contract.
11. Deeds: Merger: Fraud.The doctrine of merger does not apply where there has been fraud or mistake.
12. Fraud.Where one has a duty to speak, but deliberately remains silent, his or her silence is equivalent to a false representation.
13. Fraud.In fraudulent concealment cases, existence of a duty to disclose the fact in question is a matter for the determination of the court, although, if there are disputed facts bearing upon the existence of the duty, they are to be determined by the trier of fact under appropriate instructions as to the existence of the duty.
14. Fraud.Justifiable reliance must be decided on a case-by-case basis.
15. Actions: Fraud.Where ordinary prudence would have prevented a deception, an action for the fraud perpetrated by such deception will not lie.
16. Real Estate: Property: Words and Phrases.Fixtures are usually thought of as personal property which has become a part of the real estate, but a trade fixture is defined as personalty.
17. Real Estate: Property: Appurtenances: Words and Phrases.Trade fixtures are articles annexed to the realty by a tenant for the purpose of carrying on trade and are ordinarily removable by him during his term.
18. Real Estate: Property: Appurtenances.In determining whether an article annexed to real estate has become a part of the real estate, a court should consider (1) actual annexation to the realty or something appurtenant thereto; (2) appropriation to the use or purpose of that part of the realty with which it is connected; and (3) the intention of the party making the annexation to make the article a permanent accession to the freehold, said intention being inferred from the nature of the articles affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made.
19. Real Estate: Property: Appurtenances.The second component of the test to determine whether an article annexed to real estate has become a part of the real estate focuses on whether a chattel is specific to the type of business conducted on realty, or on whether it is the type of property that would generally be found on realty and that would have utility to a hypothetical purchaser of the underlying realty.
20. Courts: Real Estate: Property: Words and Phrases.It is incumbent on the court to define a fixture, but whether an article of property is a fixture in a particular instance depends upon the facts of that case.
21. Real Estate: Property: Damages.The rule that the measure of damages for fixtures is the difference in value of the real property before and after the removal of the articles is not an exclusive rule.
22. Real Estate: Sales: Property: Valuation: Damages.Fixtures ordinarily have a value separate and apart from the realty to which they are attached. That value may properly be submitted to the fact finder to enable it to more accurately determine a loss suffered by a purchaser.
23. Evidence: Words and Phrases.Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
24. Evidence: Proof.For evidence to be relevant, all that must be established is a rational, probative connection, however slight, between the offered evidence and a fact of consequence.
25. Trial: Testimony.The weight to be given a witness' testimony is a question for the trier of fact.
26. Trial: Evidence: Records: Appeal and Error.The erroneous admission of evidence in a bench trial is not reversible error if other relevant evidence, properly admitted, sustains the trial court's necessary factual findings; in such case, reversal is warranted only if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence.
After two buyers closed on their purchase of a building that had formerly been leased as a dental clinic, they discovered that the interior doors had been removed. They sued the seller. The county court entered judgment for the buyers and awarded damages based on the cost they paid for replacement doors. The district court affirmed. Upon further appeal, we conclude that the doctrine of merger did not bar their claim and that the doors were fixtures rather than trade fixtures. We affirm.
For ease of understanding, we generally refer to the parties as “the buyers” and “the seller” throughout this opinion. But for the sake of completeness, we identify the respective parties. The buyers, Thomas R. Griffith and Heather Griffith, purchased the real estate from the seller, Drew's LLC. The seller's sole member was Andrew Solomon. Although we recognize that this business entity is a legal entity separate and distinct from its member, for purposes of this opinion, we will refer to the business entity and its member interchangeably as “the seller.” The buyers and the seller signed a purchase agreement on February 8, 2012.
The seller had previously renovated the building for use as a dental clinic. Through May 2012, the seller leased the property to a dental practice owned by the seller's wife (former tenant). The former tenant began operating at a new location in January 2012.
The buyers planned to transform the building into their personal residence. The buyers first viewed the interior of
the property with the seller in approximately November 2011. At that time, the dental practice was still operating in the building.
The buyers also viewed the property after the dental practice had relocated. The buyers could not recall the exact date of the visit, but one of the buyers testified that “[i]t was between the February date and the closing date.” Presumably, “the February date” referred to the date of the purchase agreement. Although the dental equipment was no longer in the building, the interior doors remained.
The parties never discussed whether the interior doors would stay with the property. At no time did the seller state that the doors were excluded from the purchase agreement. The seller and the former tenant removed the doors on Memorial Day 2012.
The parties closed on the property on June 1, 2012. The buyers did not inspect the property within the 24–hour period immediately before the closing, even though the purchase agreement would have permitted them to do so. After closing, one of the buyers discovered that the interior doors had been removed. Although the buyers requested that the doors be returned, the seller refused.
The buyers commenced a small claims action against the seller. They alleged that the interior doors were fixtures included in the purchase, and they sought damages or the return of the property. The seller transferred the matter to the regular civil docket of the county court. In an answer, the seller asserted that the items of property were trade fixtures. The seller also affirmatively alleged that the claim was barred by the doctrine of merger.
The county court, without a jury, conducted a trial. Evidence established that the doors were commercial, 60–minute–rated fire doors. The former tenant had purchased and installed the interior doors in 2004. The seller testified that the doors were in good, used condition and that the...
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Fernwood Realty, LLC v. Aerocision, LLC.
...quotation marks omitted.) Slosberg v. Callahan Oil Co., 125 Conn. 651, 653, 7 A.2d 853 (1939) ; see also Griffith v. Drew's LLC, 290 Neb. 508, 518, 860 N.W.2d 749 (2015) (“[t]rade fixtures are articles annexed to the realty by a tenant for the purpose of carrying on trade and are ordinarily......
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...upon a proper and timely application.47 AFFIRMED .1 Al–Ameen v. Frakes, 293 Neb. 248, 876 N.W.2d 635 (2016).2 Griffith v. Drew's LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).3 Id.4 Id.5 Neb. Rev. Stat. § 25–302 (Reissue 2016).6 See OB–GYN v. Blue Cross, 219 Neb. 199, 205, 361 N.W.2d 550, 554 (1......
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Pierce v. Landmark Mgmt. Grp., Inc.
...Services, 512 F.3d 488 (8th Cir.2008).35 Brief for appellants at 24, citing 29 C.F.R. § 825.106 (2015).36 See Griffith v. Drew's LLC, 290 Neb. 508, 860 N.W.2d 749 (2015).37 R & B Farms v. Cedar Valley Acres, 281 Neb. 706, 798 N.W.2d 121 (2011).38 In re Estate of Clinger, 292 Neb. 237, 872 N......
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Fernwood Realty, LLC v. Aerocision, LLC
...quotation marks omitted.) Slosberg v. Callahan Oil Co., 125 Conn. 651, 653, 7 A.2d 853 (1939); see also Griffith v. Drew's LLC, 290 Neb. 508, 518, 860 N.W.2d 749 (2015) ("[t]rade fixtures are articles annexed to the realty by a tenant for the purpose of carrying on trade and are ordinarily ......