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298 Nebraska Report

HERITAGE BANK v. GABEL

Cite as 298 Neb. 961

Heritage Bank, Trustee of the Chares

Gabel Revocable Trust, appell

v. James L. Gabel et al.

appellants

___ N.W.2d ___

Filed February 9, 2018. No. S-17-363.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to any material 

facts 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.

2. Judgments: Words and Phrases. According to Neb. Rev. Stat. 

§ 25-1301(1) (Reissue 2016), a judgment is the final determination of 

the rights of the parties in an action.

3. Judgments. A judgment must be sufficiently certain in its terms to be 

able to be enforced.

Appeal from the District Court for Polk County: Rach

A. Daugherty, Judge. Reversed and remanded for furthe

proceedings.

John C. Hahn, of Wolfe, Snowden, Hurd, Luers & Ahl, 

L.L.P., for appellants.

Kent E. Rauert and Samuel R. O’Neill, of Svehla Law 

Offices, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, 

Funke, J

Nebraska Supreme Court Online Library

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

03/23/2018 08:13 AM CDT
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HERITAGE BANK v. GABEL

Cite as 298 Neb. 961

Kelch, 

INTRODUCTION

Heritage Bank, as trustee of the Charles L. Gabel Revocable 

Trust (Trust), brought an action for forcible entry and detainer 

against James L. Gabel (James), C.J. Land & Cattle, L.P., and 

MCGFF, LLC (collectively Appellants), after James failed to 

pay rent on farmland in accordance with a lease agreement. 

The district court for Polk County granted summary judgment in favor of Heritage Bank, and Appellants now appeal. 

Upon our review of the record, we discern genuine issues 

of material fact. Therefore, we reverse, and remand for further proceedings.

FACTS

Charles L. Gabel (Charles) owned various parcels of farmland in Polk County. He and his son, James, farmed the land 

together for at least 30 years.

On February 8, 2008, Charles established the Trust and 

transferred the farmland to the Trust. The Trust named Charles 

as the initial trustee and James as the successor trustee. Charles, 

as trustee, leased the farmland to C.J. Land & Cattle, of which 

James was the general partner, for a term of 20 years. Payment 

due under the lease was 30 percent of the crops produced on 

the land each year, to be delivered no later than March 1 of the 

following year.

On May 5, 2010, C.J. Land & Cattle, through James as its 

general partner, assigned all of its rights under the lease to 

MCGFF. On March 1, 2011, the Trust leased the land directly 

to MCGFF, under the same terms as the prior lease, including 

the 30-percent crop-share provision.

On September 11, 2012, Charles resigned as trustee. 

Although not specifically appointed, James assumed the duties 

as successor trustee. On May 1, 2013, James, as a member of 

MCGFF, assigned all of MCGFF’s rights under the March 1, 

2011, lease to himself. As a result, James is the current tenant 

of the land.
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HERITAGE BANK v. GABEL

Cite as 298 Neb. 961

Charles amended the Trust various times before his death. 

As his health began to decline, proceedings were initiated in 

the county court for Cass County for a guardianship and conservatorship for Charles. In addition, a separate proceeding 

was brought in Cass County by James for administration of 

the Trust. On August 26, 2014, Heritage Bank, by stipulation 

of James, was appointed as trustee through the proceedings for 

administration of the Trust.

Charles died on November 18, 2015. James later filed a petition to determine the validity of a subsequent Trust of Charles 

in the county court for Cass County. The county court found 

that it lacked jurisdiction to hear the petition, because the 

subsequent Trust was associated with a will contest pending 

before the district court for Cass County. At the time of this 

appeal, that proceeding was apparently still ongoing.

Meanwhile, James failed to deliver the 2015 crop payment 

to Heritage Bank by March 1, 2016. Rather than providing 

written notice of default, Heritage Bank served James with 

a written notice to vacate the property within 3 days. When 

James failed to do so, Heritage Bank filed an amended complaint against James, C.J. Land & Cattle, and MCGFF. The 

first cause of action alleged that the leases and assignments 

were invalid for various reasons, while the second cause of 

action was for forcible entry and detainer. It alleged that even 

if the leases and assignments were valid, James had not paid 

rent to the Trust as required by the terms of the lease and 

was in unlawful possession of the land following receipt of 

the notice to vacate. It sought restitution of the land to the 

Trust, as well as damages and costs. Appellants answered that 

James was the rightful trustee and that thus, Heritage Bank 

lacked standing to bring this action, particularly following 

Charles’ death.

On January 20, 2017, Heritage Bank filed a motion for 

summary judgment as to its second cause of action for forcible entry and detainer. The evidence presented at the hearing 

showed that James had failed to deliver the Trust’s share of 
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the 2015 crops by March 1, 2016. The president of Heritage 

Bank provided an affidavit stating that he made numerous 

demands to James and his attorneys, both in person and 

via email, including several communications instructing them 

where the crops were to be delivered.

In his affidavit, James stated that he was willing and able 

to deliver the crops as required under the lease at all times, 

but was awaiting instruction on where to deliver them. James 

further stated that under terms of the lease, the tenant must 

be given a written notice of default for unpaid rents and a 

reasonable amount of time to correct any such default, neither of which was given to him. The evidence showed that 

James eventually deposited two checks with the clerk of the 

Polk County Court containing 30 percent of the 2015 crop 

proceeds. However, those checks were not delivered to that 

court until October 27, 2016. James stated that any default 

was cured by delivery of the checks and that any harm 

suffered by the Trust was due to Heritage Bank’s failure 

as trustee.

On March 13, 2017, the district court issued a written order 

granting summary judgment in favor of Heritage Bank. It 

concluded that Heritage Bank was the trustee, because it was 

the only entity that had been issued letters of trustee. It noted 

that although James believed he should have been appointed 

trustee pursuant to the Trust documents, he had not been so 

appointed and the proceeding to determine the validity of the 

various Trust documents was still ongoing. It found the undisputed evidence established that Appellants did not deliver 

the 2015 crop payment to the trustee by March 1, 2016. 

Regarding the required notice of default, the district court 

found that Appellants had notice they were not in compliance with the terms of the lease after James was served with 

a notice to vacate, a complaint, and an amended complaint. 

The district court found that the defect was not cured within a 

reasonable amount of time, because Appellants did not submit 

checks for the crop proceeds to the clerk of the district court 
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until October 27, 2016, which was approximately 6 months 

after he was served in this matter.

The granting of the judgment on the second cause of action 

implicitly dismissed the first cause of action, the dismissal of 

which was later formalized by the parties. Appellants have now 

filed this appeal.

ASSIGNMENTS OF ERROR

Appellants assign that the district court erred in finding that 

there was no genuine issue of material fact as to (1) whether 

or not Heritage Bank is the proper trustee and the real party in 

interest, (2) whether or not James breached the lease agreement 

by failing to deliver the trust crops on time, (3) whether or 

not Heritage Bank complied with the lease agreement, and (4) 

whether or not James cured any breach of the lease agreement 

within a reasonable time.

STANDARD OF REVIEW

[1] We will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there 

is no genuine issue as to any material facts 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. 

O’Brien v. Cessna Aircraft Co., ante p. 109, 903 N.W.2d 

432 (2017).

ANALYSIS

Before proceeding with the assigned errors, we note that the 

order of the district court stated in conclusion that the motion 

for summary judgment was sustained, but it did not set forth 

any further recitation as to what the order granted as a judgment. One would need to view both the motion for summary 

judgment and the amended complaint in conjunction with the 

court’s order to determine the relief granted.

[2,3] Our concern with this type of order is twofold. First, 

Neb. Rev. Stat. § 25-1301(1) (Reissue 2016) states, “A judgment is the final determination of the rights of the parties in an 
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HERITAGE BANK v. GABEL

Cite as 298 Neb. 961

action.” Second, the general rule of law is that a judgment must 

be sufficiently certain in its terms to be able to be enforced. 

Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015). 

The judgment must be in such a form that a clerk is able to 

issue an execution upon it which an officer will be able to 

execute without requiring external proof and another hearing. 

Id. Here, the order simply stated, “The [m]otion for [s]ummary 

[j]udgment is [s]ustained.” It is difficult to find that this order 

fully determined the rights of the parties without further defining the judgment granted and that a clerk could issue an execution without having to make his or her own determination of 

what the order entailed. We urge trial courts to fully set forth 

the exact judgment being granted so that litigants, clerks, and 

sheriffs are able to proceed without any additional inquiry. 

Nonetheless, since the remaining issues in the instant case may 

arise on remand, we shall proceed with the analysis, assuming 

without deciding that the order actually granted the forcible 

entry and detainer judgment sought.

Appellants initially claim that the district court erred in 

finding that there is no issue of material fact as to whether 

or not Heritage Bank is the proper trustee of the Trust and 

the real party in interest. Appellants explain this position in 

their brief:

Since Charles’ death Heritage [Bank] has continued 

to act as though it is the Trustee based on the August 

26, 2014 Appointment. The Appellants argue that this 

has been improper and that the appointment of Heritage 

[Bank] as Conservator and Trustee only applied prior 

to Charles’ death. Upon the death of Charles, the Trust 

became irrevocable and the Successor Trustee named 

therein, James, became trustee. . . . The death of Charles 

created a vacancy in trusteeship. See Neb. Rev. Stat. 

§30-3860(a)(5). That vacancy should have been filled by 

James, the person designated to serve as successor trustee 

according to the Trust. See Neb. Rev. Stat. §30-3860(c).

Brief for appellant at 13.
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Cite as 298 Neb. 961

However, the record presented to this court reflects that 

James initiated an action to administer the Trust in the county 

court for Cass County. During the pendency of the trust administration proceeding, James stipulated to the appointment of 

Heritage Bank as trustee. The order following the stipulation 

is not in the record before us, but the record does contain 

the letters of trustee issued to Heritage Bank on October 7, 

2014, naming it as trustee prior to Charles’ death. Further, the 

record does not contain any entry whereby Heritage Bank was 

removed as trustee.

In this instance, Charles’ death does not control whether 

Heritage Bank is the trustee. The conservatorship and trust 

administration were docketed separately and are two separate 

proceedings. One is to determine whether a conservator is 

needed over the business affairs of an alleged incapacitated 

person, and the other action is a request for the county court to 

administer a trust. Even if the conservatorship terminated upon 

the death of Charles, Heritage Bank was the court-appointed 

trustee prior to his death and, as a separate legal banking entity, 

it continued as such after his death, absent removal by order of 

the court. Consequently, the record before this court supports 

the district court’s finding that Heritage Bank was the trustee 

and had standing to bring this action. Appellants’ assignment of 

error on this issue has no merit.

Appellants’ remaining assignments of error are intertwined 

and shall be addressed together. Appellants contend that the 

district court erred in finding that there is no issue of material fact as to whether James breached the lease agreement by 

failing to deliver the Trust crops on time, whether Heritage 

Bank complied with the lease agreement, and whether James 

cured any breach of the lease agreement within a reasonable time.

First, Appellants claim that the evidence is in dispute as to 

whether James was properly directed concerning a location 

for crop delivery and, therefore, could not timely deliver the 

crops. They point to the first paragraph of the lease, which 
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HERITAGE BANK v. GABEL

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states in part that the agreed payment was “30% of the crops 

produced on said real estate on an annual basis delivered at 

Tenant’s expense to an elevator within 15 miles of the farms 

as Owner shall direct.” James, by affidavit, stated that he 

requested a delivery location from Heritage Bank but that 

Heritage Bank failed to provide a delivery site. In countering 

this, Heritage Bank points to an exhibit which it claims sets 

forth that numerous demands were made for delivery of the 

crops to a location within 15 miles from the leased property. 

However, that exhibit, an affidavit of the president of Heritage 

Bank, sets forth only that “numerous demands” for delivery of the crops were made on James but does not disclose 

where Heritage directed the delivery location to occur. Thus, 

the record contains conflicting evidence concerning whether 

Heritage complied with the lease.

Next, Appellants claim that Heritage Bank never provided 

James with a notice of default, as required by the lease. They 

argue that such notice would have allowed James 30 days 

to cure the alleged breach. Heritage Bank contends that its 

requests for delivery of the crops and the notice to vacate, 

along with service of the amended complaint, acted as sufficient notice of default. The district court agreed.

The lease agreement states, in relevant part:

In the event Lessee fails to make the payment of rent or 

if default is made in the performance of any other term 

or condition thereof by Lessee, the lease, at the option of 

Lessor, shall terminate and be forfeited and Lessor may 

re-enter the premises and remove all persons in possession therefrom. Lessee shall be given written notice of 

any such default or breach and forfeiture of said lease 

shall not result if, within 30 days of such written notice, 

Lessee has corrected the default or has taken action reasonably likely to correct this default within a reasonable 

time thereafter.

The plain language of the lease required Heritage Bank to 

provide written notice of the default or breach to James which, 
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Cite as 298 Neb. 961

in turn, would allow him 30 days to cure. The title of a particular document forwarded to James does not control whether he 

was given the proper notice. Rather, we must review the content of each document sent to James to determine whether he 

received proper notice. Here, the terms of the lease that James 

allegedly breached were not specifically set forth within the 

notice to vacate. Further, the record does not contain any evidence that Heritage Bank set forth the alleged breaches in any 

other written communications. That is, there is no evidence 

that James had any way to cure those breaches within 30 days 

as allowed by the lease. Further, any notice of the alleged 

breaches given to James by way of service of the complaint 

would not allow James adequate time to cure, since litigation 

of the matter had already commenced. Nor would the district 

court’s order to pay the crop proceeds into that court constitute a notice of default and right to cure. Either the parties 

complied with the terms of the lease prior to the court action 

or they did not. Even if James had paid the crop proceeds into 

the district court within 30 days of the court order, that would 

not have barred Heritage Bank from proceeding with the forcible entry and detainer action.

Accordingly, upon our review of the record, we conclude 

that genuine issues of material fact precluded summary judgment in this instance. See O’Brien v. Cessna Aircraft Co., ante

p. 109, 903 N.W.2d 432 (2017).

CONCLUSION

The judgment of the district court is reversed, and the matter is remanded for further proceedings.

 Reversed and remanded

further proceeding

Wright, J., not participating.