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Dylan R. Isham, appellant, v.

Billy C. Jack, appellee.

___ N.W.2d ___

Filed February 13, 2024. No. A-22-880.

1. Specific Performance: Equity: Appeal and Error. An action for specific performance sounds in equity, and on appeal, an appellate court 

tries factual questions de novo on the record and, as to questions of both 

fact and law, is obligated to reach a conclusion independent from the 

conclusion reached by the trial court.

2. Replevin: Judgments: Appeal and Error. In a replevin action tried 

without a jury, the findings and disposition of the trial court have the 

effect of a jury verdict and will not be disturbed unless clearly wrong.

3. 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.

4. Options to Buy or Sell: Real Estate: Contracts: Sales. An option 

to purchase realty in and of itself does not create a binding obligation 

to either sell or purchase the realty; however, once an option to purchase is exercised, it becomes a contract for the purchase and sale of 

the realty.

5. Waiver: Words and Phrases. Waiver is a voluntary and intentional 

relinquishment or abandonment of a known existing legal right or such 

conduct as warrants an inference of the relinquishment of such right.

6. Contracts: Waiver: Proof. A written contract may be waived in whole 

or in part, either directly or inferentially, and the waiver may be proved 

by express declarations manifesting the intent not to claim the advantage, or by so neglecting and failing to act as to induce the belief that it 

was the intention to waive.

7. Replevin: Proof. In a replevin case, the plaintiff has the burden to 

prove by a preponderance of the evidence that at the time of the commencement of the action (1) the plaintiff was the owner of the property 

Nebraska Supreme Court Online Library

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

02/20/2024 09:06 AM CST
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sought, (2) the plaintiff was entitled to immediate possession of the 

property, and (3) the defendant wrongfully detained it.

8. Replevin: Abandonment. Abandonment is a complete defense to a 

replevin action.

9. Abandonment: Proof: Words and Phrases. Abandonment is the voluntary and intentional relinquishment of a right to property, and the 

evidence proving abandonment must be clear and convincing.

Appeal from the District Court for Butler County: Christina 

M. Marroquin, Judge. Affirmed.

George H. Moyer, of Moyer, Moyer & Lafleur, for appellant.

Billy C. Jack, pro se.

Riedmann, Bishop, and Welch, Judges.

Bishop, Judge.

INTRODUCTION

Dylan R. Isham appeals the decision of the Butler County 

District Court that denied his complaint against Billy C. Jack 

regarding possession of a garage after finding that Isham had 

abandoned the garage and that it would be inequitable to allow 

him to remove the garage. We affirm.

BACKGROUND

On July 8, 2021, Isham filed a complaint against Jack 

regarding possession of a garage owned by Isham. Isham 

alleged that on May 11, 2019, he and Jack contracted and 

agreed to exchange manufactured/mobile homes. Specifically, 

Isham agreed to trade his “1973 Shar-Lo manufactured home” 

for Jack’s “1988 Skamper 305F mobile home,” and each party 

accepted the other’s manufactured/mobile home “‘as is’”; 

“the trade was even, ‘no money exchanged.’” Isham alleged 

that there was a “frame two-car garage” attached to his manufactured home, which garage was expressly excluded from 

the trade, but that Jack was given the option to purchase the 

garage for $3,000 and could exercise that option any time 

prior to and including May 11, 2020. Isham alleged that Jack 
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failed to exercise the option and that when Isham attempted 

to remove the garage, Jack claimed it was his and called 

law enforcement. In his complaint, Isham sought “specific 

performance of the agreement” between Isham and Jack, asked 

the district court to “decree that [Isham] is entitled to possession of the two-car garage and issue a writ of assistance to 

place [Isham] in possession thereof, for damages for wrongful 

detention, for his costs expended and such other and further 

relief as equity requires.”

In his pro se response, Jack claimed that he sent Isham a 

text message on June 3, 2019, notifying Isham that he did 

not want to purchase the garage and asking Isham to remove 

the garage. Isham did not respond to Jack’s text message, and 

after several months, Jack considered the garage abandoned 

and proceeded with repairs to the garage. Jack alleged that he 

did not receive any communication from Isham until February 

25, 2021—more than 20 months after Jack notified Isham to 

remove the garage and 9 months after the final option date 

stated in the parties’ contract. Isham demanded full payment 

or the immediate removal of the structure, but Jack notified 

Isham that the property was abandoned and that he had proceeded with repairs and integrated the garage into the existing 

manufactured home. Jack alleged that he received a demand 

letter from Isham’s attorney on June 10, demanding $5,000 

“for the structure and ‘rent,’” but after Jack contacted Isham’s 

attorney to explain that Isham had abandoned the property, 

Jack received notification of the lawsuit on July 25. Jack asked 

the district court to dismiss Isham’s lawsuit because “[Isham] 

is asking for relief from the court that is a direct cause of 

his own negligence.” Jack alleged that “[i]t is reasonable to 

assume that after 12 months of waiting [Isham] no longer had 

any interest in [the] structure and was abandoning [it].”

Trial was held on August 16, 2022. Isham appeared with 

counsel, and Jack appeared pro se. Isham testified in his 

own behalf and called two witnesses to testify on his behalf. 

Several exhibits were also received into evidence. Jack did 
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not testify, nor did he call any witnesses to testify, but he did 

elicit evidence through his cross-examination of Isham and 

the witnesses called by Isham.

Wendy Isham (Wendy), Isham’s mother, testified that she 

purchased the manufactured home, including the garage, in 

2014. She said she received a title for the manufactured home 

and a purchase agreement for the garage. Wendy never lived 

in the manufactured home, but her son did live there. Isham 

testified that he moved into the manufactured home in early 

to mid-2014, and his mother transferred title of the property, 

including the garage, to him “[w]hen [he] got done paying 

her back for it,” which took him “something like two years.” 

According to Wendy, the manufactured home is titled like 

a motor vehicle. Wendy said, “The title would have been 

recorded, and the transfer of the property would have been 

recorded also because it included the garage.”

Subsequently, in 2019, Isham traded the manufactured 

home to Jack for a mobile home. Isham testified that a friend 

of his knew he was looking to get out of the manufactured 

home and purchase a different house. That friend introduced 

Isham to Jack, who was living in a small fifth-wheel trailer 

but needed a bigger space for his family. In addition to having some face-to-face conversations, Isham and Jack began 

communicating through text messages and Facebook, and 

eventually, they agreed to trade homes. Isham testified that 

“I wanted to buy a bigger home for myself, so I thought this 

camper, I can move to my parents’ property and still have the 

space for myself while I save money for my own home,” and 

that “I thought in the process, if I can help somebody else out, 

so be it.”

Wendy testified that she helped Isham draft the “Purchase 

Agreement,” which was received into evidence and states:

I . . . Isham trade my 1973 SHAR-LO MFGD home 

VIN# . . . “ AS IS” located at . . . Lakeside Estates to 

. . . Jack for his 1988 Skamper 305F mobile home VIN# 

. . . “AS IS” and removed from Lakeside Estates. An 
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even trade for my MFGD home and the mobile home is 

agreed with no money exchanged.

. . . Jack will be responsible for the lot rent charged by 

Lakeside Estates beginning May 1, 2019[.]

**This trade of MFGD home and mobile home 

excludes the MFGD home’s attached 2 car garage owned 

by . . . Isham located at . . . Lakeside Estates. . . . Jack 

has the option to purchase the attached 2 car garage 

for the amount of $ 3000.00 until May 11, 2020. If the 

attached 2 car garage is not purchased and paid in full 

by May 11, 2020, . . . Isham will remove the attached 2 

car garage from . . . Lakeside Estates.

(Emphasis in original.) The purchase agreement was signed 

by Isham and Jack on May 11, 2019. Wendy testified that 

it was her understanding that Jack had a deadline to pay for 

the garage if he wanted it, but “we did not have a deadline to 

remove the garage.”

Jack sent Isham a text message on June 3, 2019, stating, 

“Hey I’m gonna pass on the garage with the price and what 

it will take to fix it I think it’s just to much..I need to get it 

moved out soon tho so I can get other stuff done.” Isham testified that he remembered seeing the text message “at some 

point,” but he “did not see it June 3rd.” When asked when he 

saw the message, Isham responded, “I would say sometime 

within a month.”

Isham was asked if he tried to contact Jack about moving 

the garage after the option to purchase it expired on May 11, 

2020. Isham said, “I remember I looked him up on Facebook, 

because a lot of [the original] messages . . . were through 

Facebook, [but] I couldn’t find a profile anymore,” so “I 

assumed he had blocked me.” When asked again if he tried to 

contact Jack, Isham said, “Yes,” “[t]hrough Facebook.” When 

asked if he went over and knocked on Jack’s door, Isham 

said, “[N]o, I did not go to his home; I didn’t feel like that 

would be appropriate.”
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Isham testified that in 2020, he contacted William Scribner 

of “Scrib’s House Moving” “probably three or four times” and 

his mother contacted Scribner multiple times about moving 

the garage, but Scribner always responded that he was not 

available to move the garage because he could not find labor 

due to the COVID-19 pandemic. When asked if he waited for 

Jack’s option to purchase to expire, Isham responded, “I had 

talked to . . . Scribner before I think it totally expired,” but 

“I think at that point I couldn’t afford it.” When his counsel 

asked, “Well, what I’m getting at here is . . . Jack [had] an 

option to purchase the garage . . . until May 11, 2020[, so] 

what was your intention with respect to that option?” Isham 

replied, “To get it moved as soon as I could.”

Scribner testified that he owns “Scrib’s Moving and Heavy 

Hauling.” Scribner stated that he was contacted by Isham’s 

mother and father “about two or three” different times in 2020 

about moving the garage. However, Scribner was not able to 

move the garage at that time because of an eye injury; he did 

not have trouble with employees because of the pandemic, 

he “stayed busy.” Scribner did not have a signed contract, so 

he “never took the option to move [the garage].” On crossexamination, Jack asked Scribner if he would have been 

able to undertake the job if the Ishams had told him in May 

2020 that they wanted to go ahead and get the garage moved. 

Scribner responded, “I would have. At that point I would 

have sent my crew to do it; I would not personally have been 

there.” According to Scribner, it would have taken 2 to 3 days 

to get the garage moved, and most of that time would have 

been getting the city permit and the required signatures from 

the utilities.

Isham testified that in February 2021, he had someone lined 

up to move the garage and contacted Jack via Facebook; “I was 

able to find his profile at that point.” The messages between 

Isham and Jack were received into evidence. A message from 

Isham dated February 25, 2021, stated:
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Hey been meaning to get ahold of you for a little 

while now. I was looking over our agreement and 5/11 

comes up on 2 years. If u can’t get me paid we’ll be 

removing the garage asap. Parents got a new farm property and my garage is better served there. Lmk[.]

Jack’s responding messages stated:

Idk how to proceed but I messaged you in June 2019 

and let you know that I wasn’t interested in it and I had 

never heard anything back..I have since made repairs and 

put money into it.

. . . .

I’m sure we can work something out but I don’t think 

it will be $3k and moving the garage now isn’t really 

an option.

After some back and forth on the price, a message from Isham 

stated:

Honestly I’m gonna have to have a discussion with 

my parents before I do anything because they have it in 

mind to get the building to their place. Cutting the price 

in half is a heavy hit. I’ll get back to you in a day or 2.

Jack responded:

Ok..half of the garage is completely finished and is 

our living room so moving it at this point is completely 

out of the question. I did let you know shortly after we 

got it that we were not interested and I had not heard 

anything back so I assumed you were not interested in 

it any further..I would like to work something out with 

you tho.

On February 26, Isham messaged Jack that the price for the 

garage was “3k,” with “1500 . . . tomorrow” and the rest later. 

Jack responded, “I’m not gonna be able to do anything more 

on it..I have talked with a lawyer this morning about it and 

you were notified and I heard nothing for well more than a 

year.” Jack sent another message stating, “I’m sorry..I notified you on June 3rd, 2019 and you have since forfeited with 

no response.” Isham messaged Jack that he would be there 
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“tomorrow” to take measurements, and Jack responded, “I 

will call the sheriff if you show up.”

Isham was asked about pictures that were received into 

evidence. Isham testified that exhibit 4 was a picture that his 

mother took “probably” in April 2021. Isham stated that the 

picture depicted “an addition” that was being built “between 

the garage and the trailer that connected it all.” Exhibits 6 and 

7 were pictures taken by Isham’s mother in “late fall, 2021,” 

or “early winter 2022”; Isham agreed when his counsel stated 

that “it looks like now the breezeway has been sided and connected to the garage.” Isham stated, “And also, beyond that, 

in this picture the garage is now sided.” Isham confirmed that 

exhibits 6 and 7 accurately reflect what the unit looked like at 

the time of trial.

On cross-examination, Jack noted that Isham previously 

testified that he did not see the message Jack sent on June 3, 

2019, right away. Jack asked Isham why he did not just send 

him a message once he read the message from June 3 and let 

Jack know that he was trying to get ahold of Scribner or that 

he was still interested in getting the garage. Isham responded, 

“Because I was under the impression that that was your attempt 

to get one over on me when I went out of my way to help 

you, and I didn’t have the words for it right away. . . . I have 

never been in a situation like this. So I made mistakes along 

the way.” Jack then asked, “So you didn’t have no words for 

me for 21 months?” And Isham responded, “I just was trying it 

[sic] find somebody to move it. And within [sic] I found somebody that could is within [sic] I contacted you.”

In its order entered on August 31, 2022, the district court 

stated that Isham sought to enforce the specific term of the 

parties’ contract allowing him to remove the two-car garage. 

However, the court said it did not agree that the term was 

enforceable because the facts demonstrate a “clear abandonment” of any interest Isham had in the garage. The court 

found that Isham demonstrated an intent to abandon the 

garage when: (1) he failed to communicate with Jack after 
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Jack indicated he would not be purchasing the garage (and 

the court found that Isham’s testimony that he did not know 

how to get in touch with Jack following that message was not 

credible), (2) he was not the party to make arrangements to 

acquire the garage from the property, and (3) he was solely 

motivated to obtain the garage for his parents’ property.

Additionally, the district court stated:

It would be inequitable for the Court to enforce a right 

that . . . Isham has neglected himself to timely enforce 

to the clear detriment of . . . Jack. The Court acknowledges that the owner of the garage is . . . Isham. While 

[Isham] contends that the focus is not on due diligence, 

the law does require that individuals act on their rights. 

Diligence in exercising one’s rights to ownership impact 

the rights of others. Here, under [Isham’s] theory of the 

case, [he] is the rightful owner of the garage, . . . Jack 

has never paid the $3000, therefore [Isham] could return 

at any future time and seek of [sic] writ of assistance 

for removal. Such an outcome is precluded by equitable 

theories of justice. What if [Isham’s] parents had purchased their new farm in the year 2030? [Isham] cannot 

sit in waiting on his right and spring into action when it 

is most convenient; certainly not when it has prejudiced 

the other party.

The court found that for 20 months Isham took no action to 

exercise his right to remove the garage, which is now attached 

to the residential property by a roofline and siding; “[r]emoval 

of the garage from the property would now require detachment from the residential property and improvement[s] have 

been made.” The court denied Isham’s complaint, as well as 

his subsequent motion for new trial.

Isham appeals.

ASSIGNMENTS OF ERROR

Isham assigns that the district court erred by (1) refusing 

him specific performance, (2) finding he had abandoned the 
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garage, (3) failing to issue process commanding the sheriff 

of Butler County to assist him in obtaining possession of the 

garage, and (4) permitting Jack to retain and keep Isham’s 

garage. Jack did not submit a responsive brief on appeal.

STANDARD OF REVIEW

[1] An action for specific performance sounds in equity, and 

on appeal, an appellate court tries factual questions de novo 

on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent from the conclusion 

reached by the trial court. Walters v. Sporer, 298 Neb. 536, 905 

N.W.2d 70 (2017).

[2] In a replevin action tried without a jury, the findings 

and disposition of the trial court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Alford v. 

Neal, 229 Neb. 67, 425 N.W.2d 325 (1988).

ANALYSIS

Isham’s complaint “pray[ed] for specific performance of 

the agreement” between the parties and asked the court to 

“decree that [Isham] is entitled to possession of the two-car 

garage” and to “issue a writ of assistance to place [Isham] 

in possession thereof” and “for damages for wrongful detention.” We read Isham’s complaint as seeking relief under two 

theories of recovery—one under contract principles (specific 

performance under the contract) and one under property principles (right to possession of property). We will address each 

claim in turn.

No Right to Specific Performance 

Under Contract

[3,4] Specific performance is a remedy for breach of contract actions. See Tierney v. Four H Land Co., 288 Neb. 586, 

852 N.W.2d 292 (2014) (specific performance may be granted 

only where there is valid, legally enforceable contract and 

party seeking specific performance has substantially complied 

with terms of contract). Here, both parties exchanged their 
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manufactured/mobile homes as set forth in the contract. There 

was no breach of contract in that regard. The remaining portion of the agreement related to Jack’s option to purchase the 

garage for a certain amount within a certain timeframe. If 

the option were exercised by Jack, both parties would have 

been obligated to the terms agreed upon. See, Struempler v. 

Peterson, 190 Neb. 133, 136, 206 N.W.2d 629, 631 (1973) 

(“[w]hile it may be said that an option to purchase does not 

in itself create an interest or estate in real estate, there is no 

question but that upon exercise it becomes a contract for the 

purchase and sale of the property”); Marathon Realty Corp. v. 

Gavin, 224 Neb. 458, 398 N.W.2d 689 (1987) (option in and 

of itself does not create binding obligation to either sell or 

purchase realty; however, once option to purchase is exercised, 

it becomes contract for purchase and sale of realty); Widick 

v. Price, No. A-18-467, 2019 WL 1779505 (Neb. App. Apr. 

23, 2019) (selected for posting to court website) (option to 

purchase property does not ripen into contract for purchase of 

property unless and until option is exercised).

In this case, the option was not exercised, and instead, 

Jack specifically declined the option by a text message sent 

to Isham within a matter of weeks of signing the agreement; 

Isham acknowledged seeing the text “within a month.” Under 

the contract, if the option was not exercised, Isham “will 

remove the attached 2 car garage” from the property. Although 

no specific deadline was stated for that removal, Isham was 

nevertheless obligated to remove the garage and had an 

implied legal right to enter the premises to do so. However, 

due to the lengthy delay by Isham in responding to Jack about 

when he would act upon that right, such delay resulted in the 

conclusion by Jack that Isham was no longer interested in 

the garage and had forfeited his right to it. The district court 

noted that Isham was seeking to enforce the specific term of 

the contract allowing him to remove the garage, but it found 

that the term was not enforceable because the facts demonstrated a “clear abandonment” of any interest Isham had in 
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the garage and that “the law does require that individuals act 

on their rights.” We construe the district court’s reasoning to 

mean Isham waived his right to enforce the removal of the 

garage because he neglected to timely take action to do so to 

the “clear detriment of . . . Jack.”

[5,6] Waiver is a voluntary and intentional relinquishment 

or abandonment of a known existing legal right or such conduct as warrants an inference of the relinquishment of such 

right. Jelsma v. Scottsdale Ins. Co., 231 Neb. 657, 437 N.W.2d 

778 (1989). A written contract may be waived in whole or in 

part, either directly or inferentially, and the waiver may be 

proved by express declarations manifesting the intent not to 

claim the advantage, or by so neglecting and failing to act as 

to induce the belief that it was the intention to waive. Id.

We agree with the district court that Isham was not entitled 

to specific performance because he waived his implied contractual right to enter the premises to remove the garage due 

to his lengthy delay in responding to Jack. Jack sent Isham 

a text message on June 3, 2019, notifying Isham that he 

did not want to purchase the garage and requesting that the 

garage be removed. Isham did not timely respond to the message even though it had been sent to the same phone number 

used when the parties were formulating their agreement. And 

although Isham acknowledged receiving the message “within 

a month” of when Jack sent it, Isham nevertheless waited for 

over 20 months to respond to Jack’s message. Isham’s neglect 

and failure to act can be construed as inducing a belief in 

Jack that it was Isham’s intention to waive his implied right 

to enter the premises to remove the garage. See Jelsma v. 

Scottsdale Ins. Co., supra.

No Right to Possession of Garage 

Under Property Principles

Isham’s complaint also asked the court to “decree that 

[Isham] is entitled to possession of the two-car garage” and 

“for damages for wrongful detention.” Therefore, separate 
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from his claim under the contract, Isham sought relief under 

a claim of property ownership and right to possession of the 

same under replevin principles. See Zelenka v. Pratte, 300 

Neb. 100, 912 N.W.2d 723 (2018) (object of replevin action is 

to recover specific personal property).

[7-9] In a replevin case, the plaintiff has the burden to prove 

by a preponderance of the evidence that at the time of the 

commencement of the action (1) the plaintiff was the owner of 

the property sought, (2) the plaintiff was entitled to immediate 

possession of the property, and (3) the defendant wrongfully 

detained it. Id. At trial, Isham claimed that he was the owner 

of the garage and was entitled to immediate possession of 

the garage, but that Jack had wrongfully detained the garage. 

Jack’s defense was that Isham had abandoned the garage. In 

its order, the district court found that Isham was the owner of 

the garage, but that he was not entitled to possession of the 

garage because he had abandoned the garage. Abandonment 

is a complete defense to a replevin action. See 66 Am. Jur. 2d 

Replevin § 32 (2021). See, also, Graff v. Triple B Development 

Corp., 622 S.W.2d 755 (Mo. App. 1981) (abandonment, if 

proved, is complete defense to action for replevin and precludes recovery; to constitute abandonment, owner must act 

with conscious intent neither to use nor retake possession of 

property). Abandonment is the voluntary and intentional relinquishment of a right to property, and the evidence proving 

abandonment must be clear and convincing. See Mueller v. 

Bohannon, 256 Neb. 286, 589 N.W.2d 852 (1999).

The evidence at trial established that less than 1 month after 

the parties executed the May 2019 contract, which included 

an option to purchase the garage, Jack specifically declined to 

exercise the option to purchase the garage in a message sent 

to Isham on June 3, 2019. Jack’s message stated: “Hey I’m 

gonna pass on the garage with the price and what it will take 

to fix it I think it’s just to much..I need to get it moved out 

soon tho so I can get other stuff done.” Isham, who acknowledged receiving the message “within a month” after it was 
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sent, did not respond to Jack’s message or make any attempt 

to remove the garage at that time. Although Scribner testified 

that Isham’s parents contacted him in 2020 about moving the 

garage, Isham did not make any contact with Jack about the 

garage until February 25, 2021. And the timing of that contact, the district court concluded, was “when [Isham’s] parents 

bought a farm,” and “another indication” that Isham “was not 

intending on exercising his rights of ownership” to the garage 

was that Scribner communicated with Isham’s parents, not 

Isham, about possibly moving the garage. The court found 

the facts “demonstrate a clear abandonment of any interest 

in the two-car garage.” Based on the record, this finding by 

the district court was not clearly wrong. See Alford v. Neal, 

229 Neb. 67, 425 N.W.2d 325 (1988) (in replevin action tried 

without jury, findings and disposition of trial court have effect 

of jury verdict and will not be disturbed unless clearly wrong). 

See, also, Block v. Fisher, 103 A.2d 575 (D.C. 1954) (finding 

that appellant abandoned property he left in appellees’ yard 

for 8 months); Fleming’s Flower Fields v. Schroeder/Klein 

Investments, No. A-06-1344, 2008 WL 1747004 *2 (Neb. App. 

Apr. 8, 2008) (selected for posting to court website) (“[w]here 

a contract does not provide a time for performance, a reasonable time for performance will by implied by law”; appellants’ 

failure to remove plants for more than 1 year showed their 

intent to abandon their property).

As stated previously, abandonment is a complete defense to 

a replevin action. See 66 Am. Jur. 2d, supra. See, also, Graff v. 

Triple B Development Corp., supra. Because Isham abandoned 

the garage, he was not entitled to recover the garage and his 

remaining assignments of error are moot.

CONCLUSION

For the reasons set forth above, we affirm the district court’s 

order denying Isham’s complaint.

Affirmed.