Vowers & Sons, Inc. v. Strasheim

• Court: Supreme Court of Nebraska
• Citation: 254 Neb. 506,576 N.W.2d 817
• Docket Number: No. S-96-1154,S-96-1154
• Parties: VOWERS AND SONS, INC., a Nebraska corporation, Appellant and Cross-Appellee, v. Jerry STRASHEIM, Appellee and Cross-Appellant.
• Decision Date: 23 April 1998

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576 N.W.2d 817 254 Neb. 506 VOWERS AND SONS, INC., a Nebraska corporation, Appellant and Cross-Appellee,
v.
Jerry STRASHEIM, Appellee and Cross-Appellant. No. S-96-1154. Supreme Court of Nebraska. April 23, 1998.

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Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most

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favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

3. Summary Judgment: Final Orders: Appeal and Error. Although the denial of a motion for summary judgment, standing alone, is not a final, appealable order, when adverse parties have each moved for summary judgment and the trial court has sustained[254 Neb. 507] one of the motions, the reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct such further proceedings as it deems just.

4. Election of Remedies. In general, election of remedies may be applied to require a party to choose between inconsistent remedies for redress of a single injury. It is considered a harsh rule which should not be applied in an oppressive manner.

5. Election of Remedies. Election of remedies can be applied to bar a claim only if there are two coexisting remedies which are so inconsistent that a party cannot logically choose one without renouncing the other.

6. Election of Remedies. The doctrine of election of remedies is applicable only where inconsistent remedies are asserted against the same party or persons in privity with such party.

7. Estoppel. Inconsistent claims against different parties may be barred by the doctrine of judicial estoppel.

8. Estoppel. The doctrine of judicial estoppel holds that one who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding. The doctrine protects the integrity of the judicial process by preventing a party from taking a position inconsistent with one successfully and unequivocally asserted by the same party in a prior proceeding.

9. Estoppel. Judicial estoppel may be applied even if detrimental reliance or privity does not exist.

10. Estoppel. The doctrine of judicial estoppel is to be applied with caution so as to avoid impinging on the truth-seeking function of the court, because the doctrine precludes a contradictory position without examining the truth of either statement.

11. Estoppel. Absent judicial acceptance of the inconsistent position, application of the rule of judicial estoppel is unwarranted because no risk of inconsistent results exists.

12. Estoppel: Words and Phrases. Judicial acceptance requires not that a party prevail on the merits, but only that the first court has adopted the position urged by the party, either as a preliminary matter or as part of a final disposition.

13. Breach of Contract: Real Estate: Damages. The measure of the seller's damages for breach of a contract to purchase real estate is the difference between the contract price and the fair market value of the property at the time of the breach.

14. Breach of Contract: Damages. In a breach of contract case, the ultimate objective of a damages award is to put the injured party in the same position he would have occupied if the contract had been performed, that is, to make the injured party whole.

15. Damages. As a general rule, a party may not have double recovery for a single injury, or be made "more than whole" by compensation which exceeds the actual damages sustained.

16. Actions. Where several claims are asserted against several parties for redress of the same injury, only one satisfaction can be had.

17. Breach of Contract: Pleadings: Proof. In order to recover for breach of contract, a plaintiff must plead and prove the existence of a promise, its breach, damage, and compliance with any conditions precedent that actuate the defendant's duty.

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[254 Neb. 508] Jerald L. Ostdiek, of Nichols, Douglas, Kelly, and Meade, P.C., Scottsbluff, for appellant.

Robert G. Simmons, Jr., of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

STEPHAN, Justice..

In this action, Vowers and Sons, Inc. (Vowers & Sons), alleges that Jerry Strasheim breached a contract to purchase real estate. We previously reversed an order sustaining Strasheim's demurrer and dismissing the case and remanded the cause to the district court for Kimball County for further proceedings. Vowers & Sons, Inc. v. Strasheim, 248 Neb. 699, 538 N.W.2d 756 (1995). Following remand, the district court entered summary judgment in favor of Strasheim, based upon a finding that Vowers & Sons made a binding election of remedies when it brought a professional negligence action against the real estate agent who had prepared the purchase agreement and accepted the benefit of a settlement of that action. Vowers & Sons appeals this order, as well as the denial of its motion for summary judgment. We conclude that the doctrine of election of remedies is inapplicable to claims asserted against different parties and that genuine issues of material fact preclude summary judgment for either party. We, therefore, reverse, and remand to the district court for further proceedings.

BACKGROUND

In May 1992, Strasheim signed an agreement to purchase certain real estate in Kimball County owned by Vowers & Sons. The agreement identified two additional buyers, but they did not sign the document. Merle Vowers, president of Vowers & Sons, signed the purchase agreement in his own name without naming the corporation or indicating his capacity as a corporate officer. Id. When closing did not occur, Vowers & Sons filed this action against Strasheim, alleging breach of the purchase agreement and requesting general damages, loss of bargain damages of $50,000, consequential damages, and costs. Id. The district court sustained Strasheim's demurrer on the grounds that there [254 Neb. 509] were defects of parties and a failure to state facts constituting a cause of action. Vowers & Sons appealed, and we reversed the order and remanded the cause to the district court for further proceedings. Id.

In March 1994, prior to our decision in Vowers & Sons, Inc., Vowers & Sons filed an action in the district court for Kimball County against Sheila Newell, doing business as Newell Realty and Auction. Vowers & Sons alleged that Newell, acting as its agent in the transaction with Strasheim, was negligent in failing to obtain the signatures of the other two purported buyers, failing to require Vowers to sign the agreement in his capacity as a corporate officer of Vowers & Sons, and in "not prepar[ing] and arrang[ing] a purchase agreement which is enforceable." Vowers & Sons further alleged that "[e]ntirely because of [Newell's] negligence and lack of skill in drafting and preparation of said purchase agreement, said purchase agreement has been held unenforceable." Vowers & Sons prayed for loss of bargain damages in the amount of $50,000, general and consequential damages in unspecified amounts, and costs and attorney fees. In an amended petition, the prayer for loss of bargain damages was increased to $95,775.30. Newell subsequently paid an unspecified amount to Vowers & Sons to settle the claim, and the action against Newell was dismissed with prejudice pursuant to a stipulation of the parties.

Following issuance of the mandate in Vowers & Sons, Inc., Strasheim filed an answer to the second amended petition in which he alleged that by commencing the action against Newell and receiving the benefit of the settlement, Vowers & Sons had made an election of remedies and was "barred and estopped from requesting a double recovery and proceeding further herein." Strasheim prayed for dismissal of the action and attorney fees and expenses pursuant to Neb.Rev.Stat. §§ 25-824 to 25-824.03 (Reissue 1995).

Both parties filed motions for summary judgment. On October 17, 1996, the district

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court denied Vowers & Sons' motion and entered summary judgment in favor of Strasheim. The court determined that Vowers & Sons elected to pursue a remedy against Newell which was inconsistent with its claim against Strasheim in that the claim against Newell alleged that [254 Neb. 510] the purchase agreement with Strasheim was unenforceable, whereas the claim against Strasheim was an attempt to enforce the agreement. Concluding that Vowers & Sons "pursued one remedy and received benefit thereby and is not entitled to another recovery," the district court dismissed the action but did not award attorney fees to Strasheim.

Vowers & Sons appeals the order of the district court denying its motion for summary judgment and granting Strasheim's motion for summary judgment. Strasheim cross-appeals, claiming that he was entitled to recovery of attorney fees because the claim against him was frivolous.

ASSIGNMENTS OF ERROR

Vowers & Sons contends that the district court erred in sustaining Strasheim's motion for summary judgment and overruling its motion for summary judgment. Strasheim cross-appeals, contending that the district court erred in failing to award attorney fees.

STANDARD OF REVIEW

In reviewing an order granting a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party...