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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

Jeremy Barnett, appellant, v. Happy Cab Co., 

a Nebraska corporation, 

et al., appellees.

___ N.W.2d ___

Filed May 26, 2020. No. A-19-510.

1. Pleadings: Judgments: Appeal and Error. A motion to alter or amend 

a judgment is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

3. Appeal and Error. Although an appellate court ordinarily considers 

only those errors assigned and discussed in the briefs, the appellate court 

may, at its option, notice plain error.

4. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

5. Contracts: Parties: Intent. To create a contract, there must be both an 

offer and an acceptance; there must be a meeting of the minds or a binding mutual understanding between the parties to a contract.

6. ____: ____: ____. A fundamental and indispensable basis of any enforceable agreement is that there be a meeting of the minds of the parties as 

to the essential terms and conditions of the proposed contract.

7. ____: ____: ____. A binding mutual understanding or meeting of the 

minds sufficient to establish a contract requires no precise formality 

or express utterance from the parties about the details of the proposed 

agreement; it may be implied from the parties’ conduct and the surrounding circumstances.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/26/2020 09:07 AM CDT
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

8. Contracts. It is a fundamental rule that in order to be binding, an agreement must be definite and certain as to the terms and requirements. It 

must identify the subject matter and spell out the essential commitments 

and agreements with respect thereto.

9. Compromise and Settlement. The object of Neb. Rev. Stat. § 25-901 

(Cum. Supp. 2018) is to encourage litigants to compromise their 

differences.

10. ____. In reaching a compromise, a party may make a counteroffer during negotiations. In other words, the purpose of a confessed judgment 

and its acceptance is to have the parties agree upon a final resolution, 

and this necessarily requires a meeting of the minds as to the terms of 

that resolution.

11. ____. Where an acceptance differs from an offer and is coupled with any 

condition that varies or adds to the offer, it is not an acceptance; rather, 

it is a counteroffer.

Appeal from the District Court for Douglas County: J. 

Michael Coffey, Judge. Reversed and vacated, and cause 

remanded with directions.

John C. Fowles, of Fowles Law Office, P.C., L.L.O., for 

appellant.

Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell, 

P.C., L.L.O., for appellees.

Riedmann and Bishop, Judges.

Per Curiam.

INTRODUCTION

Jeremy Barnett appeals from an order of the district court 

for Douglas County which found that a confessed judgment 

agreement was intended to apply to Happy Cab Co. (Happy 

Cab), Checker Cab Co. (Checker Cab), and Richard C. Kincaid 

(collectively appellees), rather than just Happy Cab, as the 

court had previously determined. The court granted appellees’ motion to alter or amend the court’s previous order and 

entered an “Amended Order of Judgment,” entering judgment 

in favor of Barnett and against appellees in the amount of 

$75,000. Based on the reasons that follow, we reverse the trial 
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

court’s May 9, 2019, order and vacate the May 9 “Amended 

Order of Judgment” and we remand the cause with directions 

to reverse the April 15 “Order” and vacate the order entering 

judgment on April 15.

BACKGROUND

On March 3, 2015, Barnett filed a first amended complaint 

for personal injuries and damages against appellees and John 

Doe Cab Company. Barnett alleged that on January 2, 2011, 

he was getting into a “Checker Cab” driven by Kincaid when 

the cab began moving and Barnett was injured. He also alleged 

that Kincaid was an employee of Happy Cab, Checker Cab, 

and/or John Doe Cab Company and that Kincaid’s negligence 

was imputed to Happy Cab and/or Checker Cab under the doctrine of respondeat superior.

Happy Cab and Checker Cab filed a joint answer admitting 

they were Nebraska corporations and denying Kincaid was 

their employee. Kincaid filed a separate answer denying he 

was an employee of either cab company. Both answers were 

filed by the same attorney. John Doe Cab Company was dismissed from the case on July 2, 2015.

On March 7, 2019, a few days before the scheduled jury 

trial, appellees’ counsel filed an offer to confess judgment in 

the amount of $75,000. Barnett filed his acceptance of the offer 

to confess judgment as to Happy Cab and its liability insurer, 

Paratransit Insurance Co. (Paratransit Insurance), only.

Trial on Barnett’s first amended complaint was scheduled 

for March 11, 2019. On that day, the court was advised that 

an offer to confess judgment had been filed and that Barnett 

had filed an acceptance of the offer. The issue at the hearing 

became whether the offer to confess judgment applied only to 

Happy Cab or to all appellees. Counsel for Barnett argued that 

the offer to confess judgment and acceptance thereof applied 

only to Happy Cab; counsel for appellees argued that the offer 

and acceptance applied to all appellees and that Checker Cab 

and Kincaid should be dismissed as defendants.
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

An independent contractor agreement between Happy Cab 

and Kincaid was offered and received into evidence. The court 

also took judicial notice of the first amended complaint, the 

answers of the defendants, the offer to confess judgment, and 

the acceptance of the offer.

On April 15, 2019, the trial court entered an order overruling Checker Cab’s and Kincaid’s motions to dismiss, finding 

that the offer to confess judgment did not apply to Checker 

Cab or Kincaid. The court entered an “Order” of judgment the 

same day finding that Happy Cab and Paratransit Insurance 

made and filed an offer to confess judgment in the amount 

of $75,000 and that Barnett filed an acceptance of the offer. 

The order further stated that a judgment should be entered on 

behalf of Barnett and against Happy Cab only in the amount 

of $75,000.

On April 23, 2019, appellees filed a motion to alter or 

amend, alleging that the court erred in finding that the offer 

to confess judgment did not include Checker Cab or Kincaid. 

The motion stated that Checker Cab is a trade name of 

Happy Cab and that they are “one in the same.” In regard to 

Kincaid, the motion alleged that a valid release of either the 

master or servant from liability for tort operates to release 

the other where liability is based on the doctrine of respondeat superior.

Following a hearing on appellees’ motion to alter or amend, 

the court entered an order on May 9, 2019, finding that the 

offer to confess judgment was intended to apply to all appellees and that therefore, the motion to alter or amend should 

be sustained and a judgment entered in favor of Barnett and 

against all appellees in the amount of $75,000. The court 

also entered an “Amended Order of Judgment” finding that 

appellees filed an offer to confess judgment in the amount 

of $75,000 including costs, and Barnett filed an acceptance 

of said offer, and that therefore, judgment should be entered 

on behalf of Barnett and against appellees in the amount 

of $75,000.
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

ASSIGNMENTS OF ERROR

Barnett assigns, restated, that the trial court erred in (1) 

finding that the offer to confess judgment applied to all appellees; (2) its application of the “‘intent’” rule and rebuttable 

presumption set forth in Podraza v. New Century Physicians of 

Neb., 280 Neb. 678, 789 N.W.2d 260 (2010); and (3) entering 

a confusing amended order of judgment that is unclear as to its 

effect on the prior order.

STANDARD OF REVIEW

[1,2] A motion to alter or amend a judgment is addressed to 

the discretion of the trial court, whose decision will be upheld 

in the absence of an abuse of that discretion. Breci v. St. Paul 

Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014). A 

judicial abuse of discretion exists when the reasons or rulings 

of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters 

submitted for disposition. Id.

ANALYSIS

Barnett’s first two assignments of error relate to the court’s 

granting appellees’ motion to alter or amend, thereby finding 

that the offer to confess judgment and the acceptance applied 

to all appellees, not just Happy Cab. Barnett contends that 

Happy Cab was the only appellee to make the offer to confess judgment and the only appellee from whom he accepted 

the offer.

The introductory language of the offer to confess judgment 

states: “COME NOW the Defendants, Happy Cab . . . and 

Paratransit Insurance . . . (collectively “Defendants”) . . . and 

for Defendants’ Offer to Confess Judgment . . . hereby state as 

follows: . . . Defendants offer to allow judgment to be entered 

against them on all claims . . . .” (We note here that Paratransit 

Insurance was not a named defendant in this case.) The end of 

the offer states that it is “Respectfully submitted” by Happy 

Cab, Checker Cab, and Kincaid. Barnett’s acceptance of the 
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

offer stated that he was accepting the offer “as to ‘defendants’ 

Happy Cab and Paratransit Insurance . . . only.”

The trial court initially concluded that the burden was on 

Checker Cab and Kincaid to prove the offer to confess judgment and the acceptance were specifically intended to apply 

to them and that the burden had not been met. The court held 

therefore, that the motion of Checker Cab and Kincaid to dismiss pursuant to the offer to confess judgment should be overruled and denied.

However, after the court considered appellees’ motion to 

alter or amend, it concluded in its May 9, 2019, order that the 

offer to confess judgment was intended to apply to all appellees. This conclusion was based on its determination that the 

offer to confess judgment was submitted and made on behalf 

of all appellees by counsel who represented all appellees, as 

well as the fact that counsel for appellees, upon receiving the 

limited acceptance, immediately moved to have the offer apply 

to all of his clients, and subsequently filed the motion to alter 

or amend.

[3,4] In deciding the case initially and on the motion to alter 

or amend, the trial court focused on whether appellees proved 

that they intended the offer to confess judgment to apply to 

all of them. We determine, however, that the trial court committed plain error and that this case is better analyzed as a 

contract case, which requires a meeting of the minds by both 

parties. Although an appellate court ordinarily considers only 

those errors assigned and discussed in the briefs, the appellate 

court may, at its option, notice plain error. Connelly v. City of 

Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012). Plain error 

exists where there is an error, plainly evident from the record 

but not complained of at trial, which prejudicially affects a 

substantial right of a litigant and is of such a nature that to 

leave it uncorrected would cause a miscarriage of justice or 

result in damage to the integrity, reputation, and fairness of 

the judicial process. United States Cold Storage v. City of 

La Vista, 285 Neb. 579, 831 N.W.2d 23 (2013).
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

[5-7] To create a contract, there must be both an offer and 

an acceptance; there must be a meeting of the minds or a binding mutual understanding between the parties to the contract. 

Stitch Ranch v. Double B.J. Farms, 21 Neb. App. 328, 837 

N.W.2d 870 (2013). A fundamental and indispensable basis of 

any enforceable agreement is that there be a meeting of the 

minds of the parties as to the essential terms and conditions 

of the proposed contract. Id. A binding mutual understanding or meeting of the minds sufficient to establish a contract 

requires no precise formality or express utterance from the 

parties about the details of the proposed agreement; it may be 

implied from the parties’ conduct and the surrounding circumstances. Id.

[8] It is a fundamental rule that in order to be binding, an 

agreement must be definite and certain as to the terms and 

requirements. It must identify the subject matter and spell 

out the essential commitments and agreements with respect 

thereto. Id.

Neb. Rev. Stat. § 25-901 (Cum. Supp. 2018), which pertains to offers to confess judgment prior to trial, states as 

follows:

The defendant in an action for the recovery of money 

only may, at any time before the trial, serve upon the 

plaintiff or the plaintiff’s attorney an offer in writing 

to allow judgment to be taken against the defendant for 

the sum specified therein. If the plaintiff accepts the 

offer and gives notice thereof to the defendant or the 

defendant’s attorney, within five days after the offer 

was served, the offer and an affidavit that the notice of 

acceptance was delivered in the time limited may be filed 

by the plaintiff or the defendant may file the acceptance, 

with a copy of the offer verified by affidavit. In either 

case, the offer and acceptance shall be entered upon the 

record, and judgment shall be rendered accordingly. If the 

notice of acceptance is not given in the period limited, 

the offer shall be deemed withdrawn and shall not be 
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

given in evidence or mentioned on the trial. If the plaintiff fails to obtain judgment for more than was offered by 

the defendant, the plaintiff shall pay the defendant’s cost 

from the time of the offer.

[9,10] We recognize that although Nebraska’a statute does 

not specifically provide for a counteroffer of judgment, the 

Nebraska Supreme Court has previously identified the purpose of the statute as follows: “The object of this section is to 

encourage litigants to compromise their differences.” Palmer 

v. Stiles, 78 Neb. 362, 363, 110 N.W. 1004, 1005 (1907). As a 

result, we believe it is a reasonable interpretation to conclude 

that in reaching a compromise, a party may make a counteroffer during negotiations. In other words, the purpose of a 

confessed judgment and its acceptance is to have the parties 

agree upon a final resolution, and this necessarily requires a 

meeting of the minds as to the terms of that resolution. That 

did not occur here.

The offer to confess judgment was an offer to enter into a 

contractual agreement with Barnett. However, the offer was 

unclear as to which appellees were making the offer. As previously stated, the introductory language of the offer identified 

Happy Cab and Paratransit Insurance as the parties making the 

offer, but the offer was “Respectfully submitted” by all appellees. Appellees argue that they intended for the offer to confess 

judgment to apply to all of them.

[11] Barnett’s acceptance of the offer to confess judgment 

specifically stated that he was accepting the offer as to Happy 

Cab and Paratransit Insurance only. Accordingly, if the offer 

to confess judgment was intended to include all appellees, 

Barnett’s “acceptance” was actually a counteroffer rather than 

an acceptance. See Logan Ranch v. Farm Credit Bank, 238 

Neb. 814, 472 N.W.2d 704 (1991) (where acceptance differs 

from offer and is coupled with any condition that varies or 

adds to offer, it is not acceptance; rather, it is counteroffer). 

Therefore, no contract was created, because there was no meeting of the minds.
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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

BARNETT v. HAPPY CAB CO.

Cite as 28 Neb. App. 438

An essential term of a contract would include which parties are bound by the contract. In the instant case, the parties 

never came to a mutual understanding of which appellees were 

bound by the agreement, and thus, there was never any agreement reached by the parties. Therefore, we reverse the trial 

court’s May 9, 2019, order and vacate the May 9 “Amended 

Order of Judgment.” We also note that upon entering the 

May 9 order and “Amended Order of Judgment,” the trial 

court should have reversed the April 15 “Order” and vacated 

the order entering judgment on April 15, but failed to do so. 

This resulted in the confusion about the April 15 order noted 

by Barnett on appeal. Upon remand, the trial court is also 

directed to reverse the April 15 “Order” and vacate the order 

entering judgment on April 15. Our decision places Barnett 

and appellees back in the same position they were before the 

offer to confess judgment was filed.

CONCLUSION

We conclude that the offer to confess judgment and the 

acceptance of offer did not create a contract between Barnett 

and any of the appellees, as there was no meeting of the 

minds. Accordingly, the court’s May 9, 2019, order is reversed 

and the May 9 “Amended Order of Judgment” is vacated, and 

the cause is remanded with directions to reverse the April 

15 “Order” and to vacate the order entering judgment on 

April 15.

Reversed and vacated, and cause

remanded with directions.

Pirtle, Judge, participating on briefs.