Tierney v. Four H Land Co., S–13–720.
| Court | Supreme Court of Nebraska |
| Writing for the Court | Heavican |
| Citation | 852 N.W.2d 292,288 Neb. 586 |
| Parties | James Tierney and Jeffrey Tierney, appellants, v. Four H Land Company Limited Partnership et al., appellees. |
| Docket Number | No. S–13–720.,S–13–720. |
| Decision Date | 18 July 2014 |
288 Neb. 586
852 N.W.2d 292
James Tierney and Jeffrey Tierney, appellants,
v.
Four H Land Company Limited Partnership et al., appellees.
No. S–13–720.
Supreme Court of Nebraska.
Filed July 18, 2014.
[852 N.W.2d 293]
Appeal from the District Court for Lincoln County: William T. Wright, Judge. Reversed and remanded with direction.
James J. Paloucek, of Norman, Paloucek & Herman Law Offices, for appellants.
Jay C. Elliott, of Elliott Law Office, P.C., L.L.O., for appellees Four H Land Company Limited Partnership and Western Engineering Company, Inc.
David W. Pederson, of Pederson Law Office, and Lou Jungbauer, of Yaeger, Jungbauer & Barczak, for appellees Frank Aloi and Aloi Living Trust.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Miller–Lerman, JJ.
1. Specific Performance: Equity: Appeal and Error. An action for specific performance sounds in equity, and
[852 N.W.2d 294]
on appeal, an appellate court decides factual questions de novo on the record and will resolve questions of fact and law independently of the trial court's conclusions.
2. Specific Performance: Contracts. Specific performance may be granted only where there is a valid, legally enforceable contract and the party seeking specific performance has substantially complied with the terms of that contract.
3. Contracts. Whatever the construction of a particular clause of a contract, standing alone, may be, it must be read in connection with other clauses.
4. Contracts: Words and Phrases. A contract is ambiguous when a word, phrase, or provision in the contract has, or is susceptible of, at least two reasonable but conflicting interpretations or meanings.
5. Specific Performance: Contracts: Equity. Specific performance should be granted, as a matter of course, of a written contract cognizable in equity, which has been made in good faith, whose terms are certain, whose provisions are fair, and which is capable of being enforced without hardship, where the ends of justice will be subserved thereby.
6. Specific Performance: Equity. A court's discretion to order specific performance is controlled by established principles of equity and depending upon the facts and circumstances of the particular case. It is not a discretion in the sense that it may be granted or denied at the will or pleasure of the judge. It is governed by the elements, conditions, and incidents that control the administration of all equitable remedies.
7. Specific Performance: Equity. Exoneration from specific performance may be available when specific performance would be inequitable or unjust due to hardship on the one from whom performance is sought.
8. Specific Performance: Contracts. Hardship arising from a circumstance unforeseeable at entry into a contract may excuse specific performance of a contract, provided that the hardship is not self-inflicted or caused through inexcusable neglect on the part of the person seeking to be excused or exonerated from specific performance.
9. Contracts. A contract is not invalid, nor is the obligor therein in any manner discharged from its binding effect, because the contract turns out to be difficult or burdensome to perform.
10. Contracts. If a party by his own contract creates a duty or imposes a charge on himself, he must under any and all conditions substantially comply with the undertaking.
11. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.
[852 N.W.2d 295]
Wright, J.
In 1998, James Tierney and Jeffrey Tierney entered into an agreement with Four H Land Company Limited Partnership (Four H) and Western Engineering Company, Inc. (Western), regarding operation of a sand and gravel pit on property owned by Four H. In this agreement, the Tierneys agreed to waive their right to contest the issuance of a conditional use permit (CUP) for operation of the sand and gravel pit. In return, Four H and Western accepted various conditions regarding operation of the sand and gravel pit, including reclamation of the property after expiration of the CUP.
In 2009, the Tierneys brought an action for specific performance. They alleged that Four H and Western had not fulfilled the conditions of the agreement. The district court concluded that specific performance was not an appropriate remedy and dismissed the Tierneys' action. We reverse, and remand with direction to order specific performance.
“[A]n action for specific performance sounds in equity, and on appeal, we decide factual questions de novo on the record. We will resolve questions of fact and law independently of the trial court's conclusions.” Mogensen v. Mogensen, 273 Neb. 208, 212, 729 N.W.2d 44, 50 (2007).
This case involves a parcel of real estate previously owned by Four H and currently owned by the Aloi Living Trust and its trustee. Henceforth, this real estate will be referred to as “the property.” Under county zoning, the property was located within an “A–1 Agricultural District” and historically had been a hayfield. The Tierneys own lots 3 and 4 of the Hidden Lakes subdivision in Lincoln County, Nebraska, located immediately south of the property.
In 1997, Four H applied for a CUP to operate a sand and gravel pit on the property. The application was approved by the Lincoln County Planning Commission and the Lincoln County Board of Adjustment. The Tierneys appealed approval of the 1997 CUP to the district court, and in July 1998, the 1997 CUP was set aside due to the board of adjustment's failure to follow the correct procedures for issuance of a CUP under zoning regulations.
Four H applied a second time for a CUP, and again, the Tierneys objected to the application. To resolve their dispute regarding the sand and gravel pit operation, in August 1998, Four H, Western, the Tierneys, and the owners of lots 1 and 2 of the Hidden Lakes subdivision entered into an agreement. The agreement provided that the Tierneys and the other property owners would “waive their right to appeal ... the issuance of the [CUP] for the sand and gravel pit operation.” In return, Four H and Western accepted various conditions to the operation of the sand and gravel pit.
Four H's application for a CUP was thereafter approved. The 1998 CUP was to be effective for a period of 10 years, terminating on October 31, 2007. The agreement integrated the terms of the 1998 CUP, “except to the extent they [were] contrary to or less restrictive than the terms” of the agreement, in which case the agreement would control.
[852 N.W.2d 296]
The relevant terms of the agreement provided:
As the operation in one phase is completed and the operation moves to the next phase, [Four H] and [Western] shall reclaim the land in the phase of prior operations by filling to at least its approximate original topography, covered with a minimum of four (4) inches of top soil and seeded with appropriate native grasses to prevent erosion and to visually restore the site, except the area to be used for a lake. This shall be done within one (1) year of termination of operations on the phase.... In any event, reclamation and restoration of the property shall be completed by October 31, 2008. Restoration shall be the joint and several obligation of Four H ..., Western ..., and any other operator of the sand and gravel pit.
The relevant provision of the 1998 CUP provided:
At the close of each phase of the sand and gravel pit operation the area shall be leveled to its original topography within one year of termination of each phase. The areas not covered by water shall then be covered with four inches (minimum) of topsoil and seeded with appropriate native grasses to prevent erosion of the soil.
This condition was incorporated into the 1998 CUP from the original 1997 CUP. This was required by the agreement, which provided that the 1998 CUP “shall include, at a minimum, the terms and conditions contained in the [CUP] approved by the Lincoln County Planning Commission on September 9, 1997, on the initial application of [Four H].”
In April 2009, the Tierneys filed an action for specific performance against Four H (prior owner of the property), Western (operator of the sand and gravel pit), and the Aloi Living Trust and its trustee (current owners of the property). The Tierneys alleged that Four H and Western had “failed to meet the requirements of the [ 1998 CUP]” or “their obligations under the agreement.” In particular, the Tierneys claimed that
[u]nder the [1998 CUP] and the agreement, Four H and Western were required to, and agreed that they would, no later than October, 2008, return the area of the mining operation to its original topography. Instead, Four H and Western have raised the ground level of the majority of the area of the mining operation to approximately six feet to eight feet higher than the original topography.
The Tierneys prayed for an order requiring Four H and Western to specifically perform.
Four H and Western denied that they had failed to meet their obligations under the 1998 CUP or the agreement. They claimed to have “substantially complied with and performed the obligations and requirements of the ‘Agreement’ dated August 11, 1998.” The Aloi Living Trust and its trustee also alleged that Four H and Western had complied with the 1998 CUP and the agreement.
All parties filed motions for summary judgment. After a hearing at which evidence was received, the district court entered summary judgment in favor of Four H, Western, and the Aloi Living Trust and its trustee. The Nebraska Court of Appeals affirmed the judgment. See Tierney v. Four H Land Co., No. A–10–103, 2010 WL 4354243 (Neb.App. Nov. 2, 2010) (selected for posting to court Web site). We granted further review and reversed the judgment, because we determined that the district court judge should have...
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