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304 Nebraska Reports

TNT CATTLE CO. v. FIFE

Cite as 304 Neb. 890

TNT Cattle Company, Inc., appellee, 

v. Dianna Fife, appellant.

___ N.W.2d ___

Filed January 31, 2020. No. S-18-1067.

1. Declaratory Judgments. An action for declaratory judgment is sui 

generis; whether such action is to be treated as one at law or one in 

equity is to be determined by the nature of the dispute.

2. Declaratory Judgments: Appeal and Error. In appellate review of 

an action for a declaratory judgment in a law action, factual findings by the trier of fact will not be set aside unless such findings are 

clearly erroneous.

3. Breach of Contract: Leases. An action for breach of a lease agreement 

is an action at law.

4. Jurisdiction: Pleadings: Appeal and Error. Factual findings in a 

court’s determination of a factual challenge to subject matter jurisdiction 

are reviewed under a clearly erroneous standard.

5. Parties: Words and Phrases. An indispensable party to a suit is one 

whose interest in the subject matter of the controversy is such that the 

controversy cannot be finally adjudicated without affecting the indispensable party’s interest, or which is such that not to address the interest 

of the indispensable party would leave the controversy in such a condition that its final determination may be wholly inconsistent with equity 

and good conscience.

6. Parties: Waiver. Neb. Rev. Stat. § 25-323 (Reissue 2016) deprives a 

court of the authority to determine a controversy absent all indispensable 

parties and cannot be waived.

7. Parties. The burden of procuring the presence of all indispensable parties is on the plaintiff.

8. Breach of Contract: Time: Words and Phrases. An anticipatory 

breach of contract is one committed before the time has come when 

there is a present duty of performance and is the outcome of words or 

acts evincing an unequivocal repudiation of the contract.

Nebraska Supreme Court Online Library

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

03/20/2020 09:08 AM CDT
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9. Breach of Contract: Time. When there is an anticipatory breach, the 

promisee has the option to treat the contract as ended so far as further 

performance is concerned and maintain an action immediately rather 

than await the promisor’s time for performance.

10. Pleadings: Evidence: Trial. A party may at any and all times invoke the 

language of his opponent’s pleadings on which the case is being tried on 

a particular issue as rendering certain facts indisputable.

11. Pleadings: Evidence: Waiver. The pleadings in a cause are not a means 

of evidence, but a waiver of all controversy, so far as the opponent 

may desire to take advantage of them, and therefore, a limitation of 

the issues.

12. Pleadings. Statements in pleadings remain binding only until the pleading is amended.

13. Pleadings: Evidence. Matters contained in superseded pleadings 

are simple admissions that are admissible as evidence of the facts 

alleged therein and may be introduced and considered the same as any 

other evidence.

14. Pleadings. A judicial admission does not extend beyond the intendment of the admission as clearly disclosed by its context and must be 

unequivocal, deliberate, and clear, and not the product of mistake or 

inadvertence.

15. Property: Contracts: Leases. A transferor of an interest in leased 

property, who immediately before the transfer is obligated to perform 

an express or implied promise of the lease resting on privity of contract, 

continues to be obligated after the transfer.

16. Landlord and Tenant: Leases: Liability. A landlord who has transferred his or her interest in the land remains liable under a lease agreement, on the implied promise of quiet enjoyment, for disturbances of the 

tenant by the former landlord himself or herself or by someone whose 

conduct is attributable to the former landlord.

17. Leases: Evidence: Intent. Where the terms of a written lease appear 

to be ambiguous and uncertain as to the intended length of the tenancy 

or the beginning or end of the term, then, as in other cases of ambiguity, parol evidence may properly be resorted to for the purpose of 

resolving the uncertainty and explaining the parties’ true intentions in 

that respect.

18. Contracts. Instruments made in reference to and as part of the same 

transaction are to be considered and construed together.

19. Contracts: Intent: Appeal and Error. When a document is ambiguous, 

it is for the trier of fact to determine the intent of the parties from all 

the facts and circumstances, and such findings will be upheld on appeal 

unless they are clearly erroneous.
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20. Contracts: Rescission: Words and Phrases. A “rescission” amounts to 

the unmaking of a contract.

21. Contracts. A modification continues the original contract with some 

changes.

22. Contracts: Rescission. In determining whether a rescission took place, 

courts look not only to the language of the parties but to all the 

circumstances.

23. Contracts: Rescission: Intent. Mutual rescission of a contract must be 

clear, positive, unequivocal, and decisive, and it must manifest the parties’ actual intent to abandon their contract rights.

24. 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 the injured party would have occupied if the contract had 

been performed, that is, to make the injured party whole.

25. ____: ____. One injured by a breach of contract is entitled to recover 

all its damages, including the gains prevented as well as the losses sustained, provided the damages are reasonably certain and such as might 

be expected to follow the breach.

26. Damages: Proof. While damages need not be proved with mathematical 

certainty, neither can they be established by evidence which is speculative and conjectural.

27. ____: ____. Uncertainty as to the fact of whether damages were sustained at all is fatal to recovery, but uncertainty to amount is not if the 

evidence furnishes a reasonably certain factual basis for computation of 

the probable loss.

28. Damages: Appeal and Error. The amount of damages to be awarded 

is a determination solely for the fact finder, and the fact finder’s decision will not be disturbed on appeal if it is supported by the evidence 

and bears a reasonable relationship to the elements of the damages 

proved.

Appeal from the District Court for Buffalo County: William 

T. Wright, Judge. Affirmed.

Jack W. Besse, of Parker, Grossart & Bahensky, L.L.P., for 

appellant.

Siegfried H. Brauer, of Brauer Law Office, for appellee.

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

Papik, and Freudenberg, JJ.
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Freudenberg, J.

I. NATURE OF CASE

This appeal involves a dispute between an out-of-state landlord and her tenant as to the duration of their farm lease 

agreement. Two writings were considered by the court as 

embodying their agreement, one which stated that the “lease 

period will go from January 2007 until December 2017 a ten 

year period” and the other providing that “[t]he land will be 

maintained . . . from January 2007 until December 2017.” The 

court found for the tenant that there was an 11-year lease and 

awarded damages for breach of contract. The landlord argues 

on appeal that the lower court lacked jurisdiction to issue the 

judgment, because title to the farmland was transferred into 

a trust before the tenant was evicted, and that therefore, the 

landlord in her capacity as sole trustee of the trust was an 

indispensable party. On the underlying merits, the landlord 

asserts that the lease was for 10 years and that, in any event, 

an oral modification replaced the written agreement such that 

an oral year-to-year lease governed when she gave notice of 

termination. The landlord also argues that the district court’s 

calculation of the tenant’s damages was based on speculative 

and conjectural evidence. We affirm the judgment below.

II. BACKGROUND

Rowland Trampe is the sole owner and president of TNT 

Cattle Company, Inc. (TNT). He entered into a long-term 

lease agreement with Dianna Fife to lease farmland located 

at “Section Twenty-Six (26), Township Ten (10) North, 

Range Seventeen (17), West of the 6th P.M., Buffalo County, 

Nebraska” (Fife farm). When Fife indicated to Trampe that he 

should vacate the Fife farm before the end of the lease term 

as understood by Trampe, TNT sued Fife. The fundamental 

disagreement between TNT and Fife was whether their written agreement provided that the lease period would end in 

December 2016 or in December 2017 and, further, whether a 

subsequent oral agreement to change the crops grown on the 

Fife farm rescinded the written agreement such that they were 
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operating under an oral year-to-year lease when Fife advised 

Trampe the tenancy would be ending.

TNT’s original complaint was filed on April 19, 2017, and 

relied on a singular document containing the parties’ notarized signatures and stating that the “lease period will go from 

January 2007 until December 2017 a ten year period.” An 

amended complaint claimed that this document in conjunction 

with another document executed at the same time constituted 

the written agreement between the parties. The other document, containing the notarized signatures of the parties dated 

the same as the first document, described that “[t]he land will 

be maintained by TNT . . . from January 2007 until December 

2017,” without mention of a “ten year period.”

TNT alleged in its original complaint filed on April 19, 

2017, that “[Fife] has forwarded certain communications to 

[TNT] within the last few months that taken together indicate 

that [Fife] intends to breach the Lease and deny [TNT] possession of and access to the [Fife f]arm for the 2017 crop year.” 

More specifically, TNT alleged Fife had asserted that the lease 

would terminate as of December 31, 2016, and that she had 

the right to exclude TNT after that date. TNT sought injunctive relief from any action by Fife to terminate the lease or 

dispossess TNT from the Fife farm before December 31, 2017; 

declaratory judgment that the lease ran through December 31, 

2017; and damages for anticipatory breach of the lease. In 

the amended complaint, filed on September 14, 2017, TNT 

repeated the allegations of the original complaint, alleging still 

that TNT’s “anticipated dispossession” for the 2017 crop year 

would cause TNT irreparable harm and that in the event TNT 

is not granted injunctive relief, it would suffer damages for lost 

profits from the 2017 crop year.

Fife, in her answers, alleged that the parties had agreed that 

the lease term would end on December 31, 2016, and that any 

reference to “December 2017” was a mistake that should be 

construed against TNT, which she alleged was the scrivener. 

She alleged that, in any event, the long-term lease agreement 
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was no longer controlling, because it was subsequently modified to an oral year-to-year lease. Fife counterclaimed against 

TNT for an accounting of her crop share during the course of 

their lease agreement, intentional interference with the contractual relationship with a lease agreement between “defendant” 

and a new tenant, and trespass, when Trampe allegedly allowed 

his cattle to graze on stalks on the Fife farm in the fall and 

winter of 2009 through 2012. TNT did not file any pleading in 

response to the counterclaim.

After a pretrial hearing, the court found the evidence insufficient to warrant a temporary injunction, reasoning that TNT 

had failed to establish a clear right to an injunction by virtue 

of the lease agreement, because that agreement was ambiguous. A bench trial was held on permanent injunctive relief and 

the underlying claims of declaratory judgment and breach of 

contract, bifurcating the trial on the underlying merits of these 

claims from a determination of any damages. Trial on Fife’s 

counterclaim was postponed until after the court’s determination on Fife’s claims. The court ultimately found that injunctive relief was moot, but found in favor of TNT for breach of 

contract and awarded TNT damages.

1. Oral Year-to-Year Lease 

From 2003 to 2008

The evidence at trial demonstrated that Fife had purchased 

the Fife farm in January 2003 and that from that time until 

2008, Trampe farmed the land under an oral year-to-year 

arrangement. Prior to Fife’s acquisition, Trampe had been 

farming the land for the previous landlord.

2. Long-Term Written Lease 

Agreement for Row Crop

Trampe testified that in the summer of 2007, he and Fife 

began discussing putting an irrigation pivot on the Fife farm 

in order to utilize all the approved irrigated acres and thereby 

not lose the Fife farm’s designation with the U.S. Department 

of Agriculture Farm Service Agency. Trampe noted that the 
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dry hay was “becoming older hay and was going to fizzle 

out” anyway.

Trampe offered to assist at his own expense with some of 

the “dirt work” necessary for installation of a pivot so long as 

he could recoup that investment through a 10-year lease. The 

pivot was installed and began operation in 2008 for the 2008 

farm year.

According to Trampe, he understood that the 10-year lease 

period would commence once the pivot was in place. Trampe 

explained that when negotiating the new arrangement, he was 

aware that the pivot would not be installed until the spring of 

2008. Thus, he understood that the duration of the new lease 

would be for one final year of dryland hay production plus 10 

years of irrigated row crop production.

Fife acknowledged multiple telephone conversations with 

Trampe generally pertaining to installation of pivot irrigation, 

but she could not recall “anything at all” with respect to what 

was said.

(a) Exhibits 3 and 4

Trampe testified that after discussing the matter at length 

over the telephone, Fife mailed a lease document to him with 

the crops and percentages left blank. The original draft lease 

agreement sent by Fife with items left blank was entered into 

evidence as exhibit 4. Trampe explained that he had found the 

document the night before the trial.

The document as sent by Fife originally provided: “The land 

will be maintained by TNT Cattle Co, . . . from January 2007 

until December 20__.” Further, several lines of the document 

described that “[c]rop percentage will be __% for the sale of 

[specified crop],” alternating “for TNT Cattle Co.” and “for 

Dianna S. Fife Trust.” These lines specified alfalfa, soybeans, 

and corn. Four similar lines following left the crop blank. The 

document provided that “None of Dianna S. Fife heirs may 

contest this contract.”

The forwarding letter, exhibit 3, which Trampe had also 

located the evening before trial, stated in relevant part:
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Cite as 304 Neb. 890

I am enclosing a rough draft of a contract for us to 

sign. See what you think and let me know. If you like 

it, just fill in the number of years in the blank and the 

percentage of crops etc. You can re-type it if you like. I 

think you will need to initial the % areas when you go to 

a Notary. I will have to do the same so they know we both 

agree on it. You can go to a Notary and then send them to 

me and I will sign them in front of a Notary. I will send 

your copy back to you and I will keep a copy. I have no 

problem with the number of years you want to work the 

land. I don’t plan to sell it for a long time.

Fife did not recall the letter, but acknowledged that her signature was on it.

The blank for the end date of the lease period in exhibit 4 

was filled in by Trampe as 2017. Trampe filled in the percentages for the sale of alfalfa as 50 percent to TNT and 50 percent 

to the “Dianna S. Fife Trust.” Trampe filled in the blanks for 

the lines pertaining to soybeans and corn as 66.7 percent to 

TNT and 33.3 percent to the “Dianna S. Fife Trust.” The four 

other lines were simply left blank. Trampe then signed the 

agreement in the presence of a notary.

Fife objected to the admission of exhibits 3 and 4 on the 

grounds of foundation and unfair surprise. The court overruled 

the objections and admitted exhibits 3 and 4 into evidence.

(b) Exhibit 1

Trampe testified that based on the letter and exhibit 4, he 

had created another document, exhibit 1, which provided in 

full:

Rowland Trampe owner and operater of TNT Cattle 

Co. Inc. agrees to rent the farm ground from Dianna Fife 

in section 26 T-10-N-R-17-W in Grant township. The 

lease period will go from January 2007 until December 

2017 a ten year period. The ground will be rented on 

shares in corn and soybeans 66.7 percent to TNT Cattle 

Co. and 33.3 percent to Dianna Fife. Dianna will pay 

her share of the Fertilizer and TNT Cattle Co. will pay 
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his share of Fertilizer plus 100 percent of the herbicides 

and insecticides. Dianna will pay all bills for the repairs 

of the wells the pumps gear heads the pivot and her 

well motor.

(c) Exhibits 1 and 4 Signed 

Simultaneously

Trampe testified that he signed both exhibit 1 and exhibit 4 

in front of a notary on January 16, 2007, and the exhibits so 

reflect. Trampe testified that he mailed both documents to Fife 

together. Fife subsequently returned both documents to Trampe 

via the postal service, after signing them both in the presence 

of a notary on February 7, 2007.

Fife signed exhibit 1 “Dianna Fife,” but signed exhibit 4 as 

“Dianna S. Fife Trust.”

Fife could not specifically recall preparing or signing exhibit 

4, but she verified that it was her signature on the document. 

Trampe testified that he received the signed documents back 

from Fife sometime around mid-February 2007.

3. Change of Crop to 

Organic Alfalfa

The lease arrangement continued without incident until 

2015. Before the 2015 growing season commenced, Fife 

approached Trampe, expressing the desire to switch from the 

genetically modified row grain crop that was being grown 

on the Fife farm to organic alfalfa. Further, Fife expressed to 

Trampe that she no longer wished to contribute to any of the 

farming expenses.

Trampe explained that alfalfa seed is an expensive perennial 

and that switching to alfalfa from the row crops required more 

fieldwork and water. Furthermore, the first year of an alfalfa 

crop does not yield a good harvest. After the first year, the 

perennial crop produces a good yield for about 6 years.

Trampe testified that he believed he had at least 3 more 

years under the lease agreement to recoup his investment. In 

other words, they were simply modifying the agreement to 
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change the crop and the percentage shares of costs and profits, 

not the lease term. Trampe testified that he expected to have 

at least three cuttings of alfalfa in 2015 and four in 2016 and 

2017. He would not have planted such an expensive crop at his 

own expense for only a 2-year lease.

Trampe proposed that they could split the profits 50-50 if 

Fife paid half of the farming expenses. If, on the other hand, 

Fife did not contribute to any of the farming expenses, she 

could receive one-third of the profits, while Trampe would 

retain two-thirds. According to Trampe, Fife told him that 

she wished to enter into the one-third arrangement where she 

would not incur any farming expenses.

TNT replowed and reconfigured the ground to allow for the 

production of alfalfa, planting the first new crop in the spring 

of 2015. Thereafter, TNT made three cuttings of alfalfa in 2015 

and four in 2016, keeping two-thirds for himself and allocating the remaining one-third of the yield to Fife. The evidence 

was undisputed that Fife received one-third of the profits from 

these harvests.

4. Termination

(a) Letter

Trampe testified that he received a letter from Fife in August 

2016, in which Fife first communicated she might be looking 

for another tenant, and that she and Trampe had different ideas 

about the end date of the lease agreement. Trampe described 

that the letter stated Fife “had other offers to farm the ground.” 

Fife described that she sent the letter in July 2016 and that 

in the letter, she notified Trampe that TNT’s lease would 

terminate effective December 31, 2016. The letter was not 

in evidence.

(b) Conversations

Trampe and Fife spoke on the telephone after Trampe 

received the letter. The court found that they discussed their 

disagreement as to when the lease period would end and 

“apparently negotiated through 2016 calendar year.”
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Trampe and Fife had a face-to-face meeting at a restaurant 

in Kearney, Nebraska, in September 2016. The exact date of 

the conversation is unclear. Trampe testified that during the 

conversation, he expressed his opinion that their lease agreement was until 2017:

[B]ut I said if it would help . . . , if you want a new contract—because she told me just give her a new bid on it. 

She wanted to go a three-year contract. So I thought about 

it and I did, I sent her a new proposal, assuming that if 

that was the case, well, I would be all right with that 

because planting the hay, I was hoping to get five or six 

years out of it where I incurred all the expenses, to kind 

of recoup some of those expenses.

Fife testified she told Trampe during this conversation that 

the 10-year lease would end on December 31, 2016, but that 

she had not entered into an agreement with anyone else and 

was “more than willing to have him send me a new contract 

starting in 2017.” She did not recall Trampe’s end of the conversation, but acknowledged that Trampe sent her some proposals afterward.

(c) Negotiations for New 

Lease Unsuccessful

Ultimately, Fife did not accept Trampe’s offer, because she 

had better bids. Trampe responded it would be hard to compete 

with other bidders who did not have to recoup an investment 

into the ground and who could take advantage of the seed he 

had planted.

(d) Notice of Eviction

Trampe testified that at some later point, he received a letter 

from Fife telling him that “I needed to have my stuff or possession and/or shared payoff by December 31 of ’16 or there 

would probably be a sheriff there to greet me if I was trespassing on her land, that she would consider it trespassing after 

December 31 of ’16.” By December 31, 2016, Trampe had 

removed himself and his belongings from the Fife farm.
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5. Changing Theories of Recovery 

and Ownership of Fife Farm

In its original complaint, TNT had sued Fife in her individual capacity and alleged that the parties’ original lease agreement was represented in a singular ambiguous written instrument, exhibit 1, and that Fife breached the agreement when 

she demanded Trampe vacate the premises before the intended 

end date of the lease. In her answer to the original complaint, 

Fife admitted she was a nonresident landowner “possessed of 

and fee owner of” the Fife farm. Further, Fife’s counterclaim 

alleged that “defendant” was the owner of the Fife farm. She 

attached to her counterclaim the warranty deed that conveyed 

the Fife farm to “Dianna S. Fife” in 2003. Fife did not sign the 

pleadings and was not present at the hearing on TNT’s request 

for a temporary injunction. It was undisputed that although the 

“Dianna S. Fife Trust” (hereinafter Fife trust) existed when 

Fife and TNT entered into the long-term lease agreement, Fife 

held title to the Fife farm as an individual at that time.

But, at the July 2017 trial, both parties presented evidence 

that conflicted with the original pleadings. Fife was called by 

her counsel as a witness and testified that in September 2016, 

she had transferred the Fife farm into an irrevocable trust, the 

Fife trust, and that the Fife farm had remained in the Fife trust 

since that time. Fife described that she was the sole trustee 

but was not asked to provide any additional details about the 

Fife trust or its beneficiaries. No evidence was adduced as to 

the precise date of the transfer, and the deed itself is not in 

the record.

At the close of direct examination and before crossexamination of Fife, TNT asserted that Fife was precluded 

by the judicial admission in her answer and counterclaim to 

the original complaint from claiming she no longer owned 

the Fife farm. Despite Fife’s counsel’s objection that Fife had 

not signed or verified the answer and counterclaim, the court 

agreed and stated that the judicial admission controlled over 

the testimony at the hearing. The court denied a motion by 
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Fife’s counsel to withdraw the admissions so as to conform to 

the evidence or, alternatively, to amend by interlineation.

But Trampe had also presented evidence of exhibit 4 as 

constituting part of the written lease agreement, which had not 

been pled. And a subsequent hearing was held on November 

30, 2017, after TNT filed a motion seeking to amend its complaint to conform to the evidence that there were two writings 

forming the lease agreement instead of one. The proposed 

amended complaint still named Fife in her individual capacity 

as the only defendant.

Fife objected to the amended complaint on the ground of 

unfair surprise. The court allowed the amended complaint, but 

also allowed Fife to file an amended answer and counterclaim. 

Further, the court allowed the evidence to be reopened and held 

a continuation of the trial on November 30, 2017.

In her amended answer, Fife affirmatively alleged that the 

Fife farm “is owned by the [Fife trust] and that the trustee of 

said trust is . . . Fife.” She did not change the allegation in her 

counterclaim that “[Fife] is the owner of the real estate . . . .” 

The court explicitly recognized both the amended complaint 

and the amended answer and counterclaim, explaining that the 

case was to “proceed on those documents at this point.”

Neither the parties nor the judge discussed at the continuation of trial the fact that the operative answer alleged that the 

Fife trust owned the Fife farm and that Fife was no longer 

bound by her statements in the prior pleadings. TNT did not 

assert that any statement in Fife’s amended answer was a judicial admission.

While Fife testified at the reopened trial telephonically, 

no further testimony was adduced pertaining to who or what 

entities would be directly affected by the judgment. Rather, 

Fife reiterated that when she asked Trampe for a copy of their 

agreement, Trampe sent her only exhibit 1. Fife also submitted 

evidence that the document found in exhibit 1 was the only 

document filed with the U.S. Department of Agriculture Farm 

Service Agency in June 2017.
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There was no motion by Fife to dismiss for lack of an indispensable party, and there was no attempt by TNT to join in the 

action Fife in her capacity as trustee.

6. Order of December 2017

The court issued its order on liability in December 2017. 

In the prior hearing on temporary injunctive relief under the 

original complaint, the court had determined that the lease 

reflected in exhibit 1 was ambiguous. The court reiterated that 

determination in its December 2017 order deciding the questions of permanent injunctive relief, declaratory judgment, and 

breach of contract.

In determining Fife’s liability, the court considered the evidence admitted at the three hearings on May 31, July 26, and 

November 30, 2017. The court opined that both Trampe and 

Fife were “poor historians,” but that Trampe’s recollection of 

events was clearer than Fife’s. Thus, the court found “generally 

that . . . Trampe’s recollection of events is the more credible.”

The court considered exhibit 4 as an “additional document memorializing the lease agreement of the parties” and 

found that because exhibit 4 was partially prepared by Fife 

and both parties executed exhibit 1, “[b]oth are responsible 

for any ambiguity and lack of clarity that arises from these 

two documents.”

The court ultimately concluded that it was “clear . . . that 

it was the parties’ intention that the lease period would run 

from January 2007 until December 2017, an eleven-year farm 

lease.” Further, the court rejected Fife’s contention that the 

11-year lease was terminated by virtue of the subsequent 

agreement to produce organic alfalfa on the Fife farm. In this 

regard, the court noted that Fife had relied on the 10-year 

language in exhibit 1 in asserting that TNT’s tenancy was due 

to end. Thus, the court concluded that Fife had breached the 

lease agreement.

In its order, the court did not consider the question of when 

exactly the breach had occurred and whether any indispensable 

parties were missing from the action. The court appeared to 
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find that Fife was simultaneously the owner of the Fife farm 

and not the owner of it:

Fife is a resident of the State of Washington who owns

agricultural land located within Section 26, Township 

10, Range 17 West of the 6th P.M. in Buffalo County, 

Nebraska. [Fife] purchased this land in her own name on 

January 20, 2003 from the Richard J. Cook Family Trust 

which she was then serving as Co-Trustee (Exhibit No. 

5). She has since transferred this land to her own family trust.

(Emphasis supplied.)

The court found that by the time of the order, injunctive 

relief was moot. The court found in favor of TNT on its causes 

of action for declaratory relief and breach of contract, and the 

case proceeded for a determination of damages.

7. Damages

The joint pretrial conference memorandum clarified that the 

hearing was to determine the amount of damages sustained as 

a result of the loss of the hay crop that would have been harvested from the Fife farm during the 2017 crop year. Trampe 

had previously testified that he had last harvested alfalfa from 

the Fife farm in the fall of 2016.

(a) Yield and Market Value

At the trial on damages, Trampe testified that he had been 

farming alfalfa and other crops for approximately 40 years. 

Trampe testified that in his experience in farming alfalfa on 

the type of ground that the Fife farm consisted of, the normal 

range of expected production would be 8 to 10 tons per acre 

on irrigated land and around 5 tons on dryland. Production 

on the Fife farm was close to average, though “it might have 

been a touch lower because it was new hay.” Trampe testified 

that he farmed 29.14 dry acres on the Fife farm and 130.8 

“irrigated acres.” Approximately 86 of the irrigated acres 

were irrigated by the pivot, while the remaining 44 certified 

irrigated acres had been irrigated through a gravity irrigation 
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system. Trampe, however, did not irrigate those acres in 2015 

and 2016.

TNT admitted into evidence receipt for the sale on January 

24, 2017, of some alfalfa that had been grown in 2016 from 

different harvests. It was not all of the crop he had grown and 

harvested in 2016. He received $85 per ton. At the hearing for 

a temporary injunction, Trampe had said that he fed 90 percent 

of his alfalfa bales from the Fife farm to his cattle, but it was 

unclear what time period Trampe was referring to. Trampe did 

not sell alfalfa in 2017, because he used all his hay to feed 

his cattle.

Trampe testified that he was familiar with the alfalfa hay 

market in 2018, in which farmers were selling their 2017 harvests. Trampe said that the price of alfalfa had risen to a range 

of $90 to $100 per ton.

Trampe had expected a full growing season of alfalfa to 

yield an average harvest, or “cuttings,” of 8.6 tons per acre. 

Trampe testified that, generally, the density and weight of the 

bales increased from the first to the last cuttings of the season. 

Thus, a bale from the first harvest would average 1,425 pounds, 

a bale from the second harvest would average 1,475 pounds, a 

bale from the third harvest would average 1,500 pounds, and a 

bale from the fourth harvest would average 1,700 pounds.

A farmer in the same area who was the current tenant of the 

Fife farm testified that in 2016, he had purchased from Fife 

380 bales of alfalfa harvested from the Fife farm. The average 

weight per bale ranged from 1,366 to 1,685 pounds. He paid 

$65 per ton. He testified that prices rose the following year. In 

2017, alfalfa of the sort grown on the Fife farm sold for $85 

per ton.

(b) Lost Farm Program Payment

Trampe testified that every year, it was his normal practice 

to apply for farm program payments by certifying the acres 

each year. Trampe had always certified the acres on Fife’s 

behalf through the exercise of a power of attorney she had 

given him. Though there were initially complications, Trampe 
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was ultimately able to receive the farm program payment for 

2016. He had also received a farm program payment in 2015. 

For both years, the amount of the payment was approximately 

$3,460. Despite acknowledging that 2017 was governed by 

a new farm bill, Trampe was unaware of any reason why he 

would not have received the farm program payment for 2017 

had he been allowed to farm the Fife farm that year.

(c) Expenses

(i) Seed

Trampe testified that he paid $14,300 for the alfalfa seed 

that he planted in 2015.

(ii) Fertilizer

Trampe spent $8,280 on a combination of annual fertilizer 

and a starter fertilizer. In 2016, Trampe hauled and spread his 

own cattle’s manure onto the Fife farm as fertilizer. He did not 

give an estimate as to what that fertilizer was worth, and he did 

not recall what any transportation costs were. Trampe testified 

that he would have fertilized the Fife farm for the 2017 crop 

year, but obviously did not. A “rough guess” of the cost of fertilizer was $40 to $45 per acre.

(iii) Pivot Operation

TNT paid the electric bills pertaining to the operation of 

the pivot irrigation system on the Fife farm. Those bills were 

$3,337.21 for 2015 and $3,424.63 for 2016. Based on his experience in 2017 farming other properties, Trampe believed that 

the electric company had increased its rates between 2016 and 

2017 by about 4 to 6 percent. Trampe also spent about $100 

per year in drip oil for the pivot irrigation system.

(iv) Swathing, Raking, Baling, 

and Loading

Trampe testified that there are a number of expenses relating to harvesting. Operating swathers, tractor-pulled rakes 

and balers, and loaders requires fuel. Trampe testified that 
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per harvest of the Fife farm’s 130 acres of irrigated land, he 

used a 120-gallon tank of fuel to operate the swather. Raking 

the same land consumed approximately 26 gallons of fuel 

per harvest. Baling the same field consumed approximately 

55 gallons of fuel per harvest. In addition, the netting for the 

bales costs $200 a roll, with each roll wrapping about 125 

bales of the 6-foot-tall bales that Trampe made. Each bale, 

Trampe testified, weighed about 1,500 pounds. The loading 

process required 13 or 14 gallons of fuel per harvest of the 

130 irrigated acres. Two fuel bills in October 2017 demonstrated that farm diesel was priced at approximately $2.10 

and that clear diesel was priced at $2.60 per gallon. Trampe 

testified that a normal farm year for alfalfa consisted of 

four harvests.

A witness called by Fife who specializes in hay production and transportation for third-party clients testified that in 

2017, his business charged $15 per acre of alfalfa to swath 

and rake it, $15 per bale of alfalfa to bale it, and $2 per bale 

to move it to the edge of the field for the customer. The witness opined that those prices were fair and reasonable for the 

Buffalo County area. The Fife farm’s current tenant testified 

that he agreed that those prices were fair and reasonable for the 

Buffalo County area.

(v) Vehicle and Equipment Maintenance

Trampe testified that he had to service his two tractors 

approximately every 200 hours of use. In addition to the Fife 

farm’s 159 acres, Trampe farmed 1,200 other acres of land. He 

serviced his tractors three or four times per year at a cost of 

approximately $100 per service, not including labor. Trampe 

did not determine how many hours his equipment had been 

used on the Fife farm versus the other acres he farmed.

Trampe also had his two balers inspected and serviced every 

3 years. The balers were used only on the Fife farm and 70 

acres of Trampe’s own land. He estimated that one-third of the 

total usage was on the Fife farm. He had the balers serviced in 

2016 for approximately $9,000.
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(d) September 2018 Order on Damages

In an order on September 24, 2018, the court found that at 

the beginning of the 2017 crop year, TNT “was anticipating the 

production of a crop that was just about to reach its peak productivity.” Further, “TNT’s discovery efforts to obtain records 

of alfalfa production on the Fife [f]arm during 2017 from . . . 

Fife was wholly unproductive,” because Fife kept no records. 

This left TNT “in the unenviable position of having to project 

the anticipated yield using sources of information other than 

records of the actual yield itself.”

Utilizing the testimony and evidence submitted by TNT, the 

court calculated that there were 85 acres of “actually” irrigated 

ground, which would have yielded 731 tons of hay (8.6 tons 

per acre of expected production). Further, there were 74 acres 

of nonirrigated ground that would have yielded 370 tons of hay 

(5 tons per acre of nonirrigated ground).

While the court noted that Fife has admitted evidence that 

her one-third crop share from the Fife farm in 2016 was only 

286.55 tons, such yield was from the second year of production, not the third year, in which a higher yield was expected. 

Moreover, the court found that Fife,

having failed to produce any records whatsoever of the 

actual production of hay from the Fife [f]arm in question in 2017, a year in which the Fife [f]arm was totally 

under her control cannot, in the Court’s opinion, persuasively argue that she is being treated unfairly if the Court 

accepts . . . Trampe’s opinion as to the expected yield 

in 2017.

The court found that alfalfa in 2017 was worth $85 per ton. 

Thus, Trampe had shown that the 2017 farm year would have 

produced a total of $93,585 in gross profits from the land.

As expenses, the court calculated $6,757.50 for fertilizer; 

$100 for oil for the pivot; $3,549.96 in electricity for the pivot 

(based on a 5-percent increase in rates); $1,823.28 in fuel 

costs for swathing, raking, baling, and stacking; and $2,388 in 

net wrap.
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The court rejected Fife’s contention that the alfalfa seed cost 

should be prorated and also deducted from the damages calculation. The court explained:

TNT . . . sustained this one-time seed expense expecting 

receipt of the benefit of this investment over the entire 

productive life of this perennial crop. . . . Fife’s termination of the lease a year early in 2017, not only damaged 

TNT . . . in its loss of profits in 2017, but kept it from 

recovering the benefits of its seed investment over the 

full cycle in which this perennial crop would have been 

expected to produce economically harvestable hay. . . . 

Its seed cost/investment amounted to a one-time overhead expense. It should not be subjected to further loss 

in 2017 by charging it with prorated portion of this overhead again.

The court also rejected Fife’s argument that Trampe’s costs 

should include costs of transporting machinery to and from the 

Fife farm and of transporting alfalfa to market or to Trampe’s 

land to feed his cattle and that the failure to adduce evidence of 

transportation costs rendered any damages calculation speculative. The court explained that transportation costs between the 

Fife farm and Trampe’s cattle operation a short distance away 

was part of the expected overhead of the cattle operation and 

that there was no evidence that cost was saved in 2017 rather 

than used to raise, harvest, or transport other feed or hay. 

Whatever transportation costs Trampe would have incurred 

had likely actually been incurred: “The cost of transporting the 

replacement feed it used in 2017 has already been paid.”

Relying on ACI Worldwide Corp. v. Baldwin Hackett & 

Meeks,

1

 the court found that fixed overhead expenses, such as 

TNT’s costs to inspect and maintain its equipment over the full 

breadth of its farm operations, need not be deducted from gross 

income to arrive at the net profit properly recoverable.

1 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 

N.W.2d 156 (2017).
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Thus, deducting a total of $14,518.74 in expenses from 

TNT’s two-thirds share in the 2017 expected profits, the court 

found a total loss of net profits in the amount of $47,821.26.

The court then added $3,461 in the lost 2017 farm program 

payment. The court explained that at the time of the trial on 

damages, the federal farm program benefits for 2017 had not 

yet been calculated by the U.S. Department of Agriculture 

Farm Service Agency, but “there is nothing to suggest that 

Congress will change the existing farm program.”

The court awarded TNT a total of $51,332.26 in damages, 

plus costs. Following the court’s denial of her motion for new 

trial, Fife timely appealed.

III. ASSIGNMENTS OF ERROR

Fife assigns that the trial court erred in (1) awarding TNT 

a money judgment against her when she did not own the 

Fife farm and was not the landlord, (2) failing to find that 

the written lease agreement was terminated and became a 

year-to-year oral lease agreement beginning in 2015 and thus 

was properly terminated by written notice, (3) determining 

that the written lease agreement was for 11 years rather than 

10 years, and (4) awarding $51,332.26 based upon speculative evidence.

IV. STANDARD OF REVIEW

[1] An action for declaratory judgment is sui generis; whether 

such action is to be treated as one at law or one in equity is to 

be determined by the nature of the dispute.2

[2] In appellate review of an action for a declaratory judgment in a law action, factual findings by the trier of fact will 

not be set aside unless such findings are clearly erroneous.3

2 American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807 

N.W.2d 492 (2011).

3 State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 445 

N.W.2d 284 (1989).
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[3] An action for breach of a lease agreement is an action 

at law.4

[4] Factual findings in a court’s determination of a factual 

challenge to subject matter jurisdiction are reviewed under a 

clearly erroneous standard.5

V. ANALYSIS

1. Indispensable Party Question

[5] We first address the threshold question of whether 

TNT’s action lacked an indispensable party. Fife asserts that 

the evidence was undisputed that the Fife farm had been transferred to the Fife trust by the time of the alleged breach. Thus, 

Fife asserts that in her capacity as trustee, she was an indispensable party to TNT’s action for damages and declaratory 

judgment based on breach of contract and the court lacked 

jurisdiction over TNT’s claims when she was named only in 

her individual capacity. An indispensable party to a suit is 

one whose interest in the subject matter of the controversy is 

such that the controversy cannot be finally adjudicated without affecting the indispensable party’s interest, or which is 

such that not to address the interest of the indispensable party 

would leave the controversy in such a condition that its final 

determination may be wholly inconsistent with equity and 

good conscience.6

[6] Neb. Rev. Stat. § 25-323 (Reissue 2016) mandates that 

indispensable parties be joined in an action, stating in relevant 

part that “when a determination of the controversy cannot be 

had without the presence of other parties, the court must order 

4 See, Caeli Assoc. v. Firestone Tire & Rubber Co., 226 Neb. 752, 415 

N.W.2d 116 (1987); Quinn v. Godfather’s Investments, 213 Neb. 665, 330 

N.W.2d 921 (1983).

5 See Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

6 Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 

N.W.2d 221 (2017).
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them to be brought in.”7 Section 25-323 deprives a court of the 

authority to determine a controversy absent all indispensable 

parties and cannot be waived.8

[7] The burden of procuring the presence of all indispensable parties is on the plaintiff.9

 This burden is similar to the 

burden to establish other factual matters that the court’s subject 

matter jurisdiction depends upon.10 The party invoking the 

court’s jurisdiction ordinarily has the burden of proving by a 

preponderance of the evidence the necessary facts for subject 

matter jurisdiction.11

Fife and TNT disagree as a factual matter whether the Fife 

farm belonged to the Fife trust when the events occurred that 

TNT sought to litigate. The relevant time period for the cause 

of action for breach of contract and declaratory relief tried 

below is when the breach occurred.12 Though TNT originally 

pled injunctive relief, that claim was moot by the time of trial 

and the case was tried as an action at law under the alleged 

lease contract.

[8,9] Ordinarily, there is no breach until the time for performance.13 While TNT’s operative complaint alleged anticipatory breach, such was not the theory upon which the case 

was tried. An anticipatory breach of contract is one committed before the time has come when there is a present duty of 

7 See id. See, also, Neb. Rev. Stat. § 25-21,159 (Reissue 2016).

8 See Midwest Renewable Energy v. American Engr. Testing, supra note 6.

9 See Pestal v. Malone, 275 Neb. 891, 750 N.W.2d 350 (2008).

10 See, Jacobs Engr. Group v. ConAgra Foods, supra note 5; Rozsnyai v. 

Svacek, 272 Neb. 567, 723 N.W.2d 329 (2006). But see Davis v. State, 297 

Neb. 955, 902 N.W.2d 165 (2017).

11 See 61A Am. Jur. 2d Pleading § 506 (2010).

12 See Hooker and Heft v. Estate of Weinberger, 203 Neb. 674, 279 N.W.2d 

849 (1979).

13 See, Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519 

(2002); Phipps v. Skyview Farms, 259 Neb. 492, 610 N.W.2d 723 (2000); 

1 Howard O. Hunter, Modern Law of Contracts, § 12:1 (2019).
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performance and is the outcome of words or acts evincing an 

unequivocal repudiation of the contract.14 This is distinguishable from a disagreement about the interpretation or meaning 

of a term in a contract.15 When there is an anticipatory breach, 

the promisee has the option to treat the contract as ended 

so far as further performance is concerned and maintain an 

action immediately rather than await the promisor’s time for 

performance.16 TNT did not cease to pay rent and sue Fife 

immediately when it became apparent that they disagreed as 

to the meaning of the duration terms of their lease agreement. 

Rather, TNT sued Fife after she gave notice of eviction, and 

the trial commenced after Fife had evicted TNT. The case was 

tried on the ground that by evicting TNT, Fife had breached 

the implied term of quiet enjoyment that was part of her 

ongoing duty of performance under a lease term that had not 

yet ended.

[10,11] TNT does not contest that the operative period of 

time for the action was the eviction in December 2016, but 

points out that the district court found by judicial admission that the Fife farm still belonged to Fife in her individual capacity in December 2016. At TNT’s request, the 

court had acknowledged from Fife’s original answer and 

14 See, Weber v. North Loup River Pub. Power, 288 Neb. 959, 854 N.W.2d 

263 (2014); Chadd v. Midwest Franchise Corp., 226 Neb. 502, 412 

N.W.2d 453 (1987).

15 See, Hughes v. Cornhusker Cas. Co., 235 Neb. 656, 456 N.W.2d 765 

(1990); 1 Hunter, supra note 13. See, also, Mobley v. N. Y. Life Ins. Co., 

295 U.S. 632, 55 S. Ct. 876, 79 L. Ed. 1621 (1935); Trans Union Credit 

Info. v. Assoc. Credit Services, 805 F.2d 188 (6th Cir. 1986); American 

Hosp. Supply v. Hospital Products Ltd., 780 F.2d 589 (7th Cir. 1986); 

Pacific Coast Eng. Co. v. Merritt-Chapman & Scott Corp., 411 F.2d 889 

(9th Cir. 1969); Lowenstein v. Federal Rubber Co., 85 F.2d 129 (8th Cir. 

1936); Kimel v. Missouri State Life Ins. Co., 71 F.2d 921 (10th Cir. 1934); 

17A Am. Jur. 2d Contracts § 686 (2016).

16 See Hooker and Heft v. Estate of Weinberger, supra note 12. See, also, 23 

Richard A. Lord, A Treatise on the Law of Contracts by Samuel Williston 

§ 63:33 (4th ed. 2018).
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counterclaim to the original complaint a judicial admission 

that she “owned” the Fife farm as an individual. Fife testified at the trial that she had transferred the Fife farm to the 

Fife trust in September 2016, but the court had originally 

refused to consider this testimony that contradicted her judicial admission. A party may at any and all times invoke the 

language of his opponent’s pleadings on which the case is 

being tried on a particular issue as rendering certain facts 

indisputable.17 The pleadings in a cause are not a means of 

evidence, but a waiver of all controversy, so far as the opponent may desire to take advantage of them, and therefore, a 

limitation of the issues.18

However, after the court acknowledged as judicial admissions Fife’s statements in her original pleadings, it allowed 

TNT to amend its complaint. The court also permitted Fife to 

amend her answer. When she did so, she no longer admitted 

to TNT’s allegation that she owned the Fife farm. Rather, in 

her amended answer, Fife affirmatively alleged that the Fife 

farm was owned by the Fife trust. The court then reopened 

and continued the trial in which Fife had testified that she had 

transferred the Fife farm into the Fife trust.

[12,13] Statements in pleadings remain binding only until 

the pleading is amended.19 Matters contained in superseded 

pleadings are simple admissions that are admissible as evidence of the facts alleged therein and may be introduced and 

considered the same as any other evidence.20 Such original 

pleading is not conclusive evidence, but competent, as any 

other admission of a party against interest, and should be given 

such weight as the trier of fact deems it entitled in the light of 

17 See Cook v. Beermann, 201 Neb. 675, 271 N.W.2d 459 (1978).

18 See Prime Home Care v. Pathways to Compassion, 283 Neb. 77, 809 

N.W.2d 751 (2012).

19 See American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 

1988).

20 See, Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 

N.W.2d 406 (2008); Cook v. Beermann, supra note 17.
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the pleader’s explanation, if any, of the circumstances under 

which the admissions were made.21

At no point after Fife’s original answer and counterclaim 

were superseded did TNT offer them into evidence as an 

ordinary admission to be weighed in considering the question of the ownership of the Fife farm as of September 2016. 

Since TNT did not offer the original answer or counterclaim 

as evidence to be considered in the continuation of the trial 

under the amended pleadings, Fife’s testimony that the Fife 

farm was owned by the Fife trust as of September 2016 

was undisputed.

[14] It is true that the amended counterclaim remained 

unchanged insofar as it stated the “defendant” was the owner 

of the subject real estate, but TNT did not seek to rely on the 

amended counterclaim as either a simple admission or a judicial admission. The consideration of admissions is at the option 

of the opposing party.22 Furthermore, this statement in the 

amended counterclaim in the context of the amended answer to 

which it was attached did not qualify as a judicial admission. 

A judicial admission does not extend beyond the intendment 

of the admission as clearly disclosed by its context23 and must 

be unequivocal, deliberate, and clear, and not the product of 

mistake or inadvertence.24 In light of the clear statement in the 

amended answer that the Fife farm had been transferred to the 

Fife trust, the unchanged statement in the counterclaim that 

“[d]efendant is” the owner of the Fife farm was not unequivocal, deliberate, and clear, but instead appears to be the product 

of mistake or inadvertence.

The district court did not ultimately find as a factual matter that Fife continued to own the Fife farm. It is true that the 

21 Johnson v. Griepenstroh, 150 Neb. 126, 33 N.W.2d 549 (1948).

22 See, Prime Home Care v. Pathways to Compassion, supra note 18; Cook 

v. Beermann, supra note 17.

23 Cervantes v. Omaha Steel Castings Co., 20 Neb. App. 695, 831 N.W.2d 

709 (2013).

24 Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d 698 (2018).
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court stated in its order that Fife “is” a Washington resident 

who “owns” the Fife farm, but it also found that “[s]he has 

since transferred this land to her own family trust.” The confusing nature of the verb tenses notwithstanding, it appears the 

court found that at some unspecified point in time before its 

order, the ownership of the Fife farm was transferred to the 

Fife trust. This finding was not clearly erroneous.

The question thus becomes whether Fife is correct that 

because she no longer owned the Fife farm when she evicted 

TNT, and was allegedly acting instead in her capacity as sole 

trustee for the Fife trust, which owned the land at that time, 

Fife in her capacity as trustee was an indispensable party to 

TNT’s action. We conclude that Fife in her capacity as trustee 

of the Fife trust was not an indispensable party.

At the time of the breach, the lease implicated principles of 

both privity of contract and privity of estate.25 Fife relies on 

our statements in other contexts that a suit must be brought 

by or against a person or persons who have an interest in 

the property and will be affected by the order of the court26

and that parties to whom or from whom contractual obligations are jointly owed are indispensable parties to actions 

concerning contractual obligations.27 These propositions are 

inapposite to the case at bar. The transfer of the Fife farm to 

the Fife trust meant that privity of estate was transferred to 

the Fife trust, while privity of contract remained with Fife 

as the individual who entered into the lease agreement with 

TNT. Privity of contract is not transmitted to the purchaser of 

a leasehold.28

25 See Brick Development v. CNBT II, 301 Neb. 279, 918 N.W.2d 824 (2018).

26 See Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).

27 See, Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991); 

Wolfenbarger v. Britt, 105 Neb. 773, 181 N.W. 932 (1921); Harker v. 

Burbank, 68 Neb. 85, 93 N.W. 949 (1903); Council Bluffs Savings Bank v. 

Griswold, 50 Neb. 753, 70 N.W. 376 (1897); Bowen v. Crow, 16 Neb. 556, 

20 N.W. 850 (1884).

28 Brick Development v. CNBT II, supra note 25.
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[15,16] A transferor of an interest in leased property, who 

immediately before the transfer is obligated to perform an 

express or implied promise of the lease resting on privity 

of contract, continues to be obligated after the transfer.29

Specifically, a landlord who has transferred his or her interest in the land remains liable under a lease agreement, on the 

implied promise of quiet enjoyment, for disturbances of the 

tenant by the former landlord himself or herself or by someone whose conduct is attributable to the former landlord.30 It 

was under this theory that the case was tried. The evidence 

presented was that Fife held herself out as an individual with 

authority to evict TNT from the land, causing TNT to vacate 

the Fife farm, thereby breaching Fife’s implied promise, as an 

individual, not to disturb TNT’s right to quiet enjoyment for 

the duration of the lease period.

Although a covenant of continuing quiet enjoyment would 

run with the land under privity of estate to the Fife trust as the 

new owner of the Fife farm, the alleged act of eviction by Fife 

in her individual capacity was not an act of joint liability with 

Fife in her official capacity. Neither does the judgment against 

Fife in her individual capacity affect the person or persons who 

have an interest in the property since its transfer into the Fife 

trust. The transferor landlord is liable under privity of contract for the transferor’s acts interfering with quiet enjoyment, 

while the transferee landlord is liable under privity of estate 

for the transferee’s acts interfering with quiet enjoyment.31 The 

determination of one does not affect the interests of the other, 

nor would it leave the controversy in such a condition that its 

final determination may be wholly inconsistent with equity and 

good conscience.32

29 See 2 Restatement (Second) of Property: Landlord and Tenant §§ 16.1 and 

16.3 (1977).

30 See 2 Restatement (Second), supra note 29, § 16.3.

31 See id.

32 See Midwest Renewable Energy v. American Engr. Testing, supra note 6.
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The present situation is admittedly unique because the transferor and the agent of the transferee are the same person in 

different capacities. And it is true that a principal is under a 

duty to reimburse its agent for payment of damages which the 

agent is required to make to a third person on account of the 

authorized performance of an act which constitutes a tort or 

breach of contract. But the trial below did not litigate whether 

Fife was secretly acting in her authorized capacity on behalf of 

the Fife trust when she evicted TNT.

In sum, Fife is correct that she demonstrated she did not 

personally own the Fife farm when the breach occurred that 

formed the basis for TNT’s action. Nevertheless, under privity of contract, she was a proper defendant in TNT’s action 

for breach of contract and related declaratory judgment action 

stemming from her act of evicting TNT. Fife in her capacity as trustee of the Fife trust was not an indispensable party 

regardless of whether Fife can later prove that she was, undisclosed to TNT, acting at the time of the eviction on behalf of 

the Fife trust. The lower court had jurisdiction to issue the 

challenged judgment. We turn next to the underlying merits 

of the appeal.

2. Underlying Merits

Fife argues on appeal that the district court erred in concluding that the lease agreement was for 11 years, ending in 

December 2017, instead of concluding that it was for 10 years, 

ending in December 2016. Alternatively, Fife asserts the district court erred by failing to conclude that the written longterm lease had been rescinded due to an oral modification and 

that the parties were operating under an oral year-to-year lease 

at the time of the alleged breach.

[17,18] Where the terms of a written lease appear to be 

ambiguous and uncertain as to the intended length of the 

tenancy or the beginning or end of the term, then, as in other 

cases of ambiguity, parol evidence may properly be resorted 

to for the purpose of resolving the uncertainty and explaining 
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the parties’ true intentions in that respect.33 Further, instruments made in reference to and as part of the same transaction 

are to be considered and construed together.34

Fife argues that the court’s conclusion that the lease agreement was for 11 years was the result of improperly considering exhibits 3 and 4 together with exhibit 1. But Fife does not 

assign and argue as error that exhibits 3 and 4 were improperly admitted, and an alleged error must be both specifically 

assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.35

Fife merely offers the conclusory statement that “[t]he 

court’s consideration of Exhibit 3 and Exhibit 4 was improper 

in light of the testimony of [Trampe]” that it was his intention 

that the farm lease would last for 10 years.36 Fife has taken this 

testimony out of context. Trampe testified that he understood 

that the 10 years would begin once the irrigation pivot was in 

place, which was not until 2008.

[19] Exhibit 4, which was signed by both Fife and TNT, 

provided unambiguously that the lease agreement was until 

December 2017. Exhibit 1 is less clear in its statement that 

the “lease period will go from January 2007 until December 

2017 a ten year period,” and this phrase renders the agreement embodied by the two documents ambiguous. When a 

document is ambiguous, it is for the trier of fact to determine 

the intent of the parties from all the facts and circumstances, 

and such findings will be upheld on appeal unless they are 

clearly erroneous.37

33 See, Nebraska Depository Inst. Guar. Corp. v. Stastny, 243 Neb. 36, 497 

N.W.2d 657 (1993); Annot., 151 A.L.R. 279 (1944).

34 Norwest Corp. v. State, 253 Neb. 574, 571 N.W.2d 628 (1997).

35 State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).

36 Brief for appellant at 18.

37 See Hensman v. Parsons, 235 Neb. 872, 458 N.W.2d 199 (1990). See, 

also, e.g., Wurst v. Blue River Bank, 235 Neb. 197, 454 N.W.2d 665 

(1990).
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The district court’s finding that the parties intended the lease 

to end in December 2017 was not clearly erroneous. The court 

found that Trampe’s recollection of events was more credible 

than Fife’s, and Trampe testified that it was their intent for the 

lease to end in December 2017. The documents read together 

also support the district court’s conclusion that TNT and Fife 

intended the lease to end in December 2017. The “December 

2017” end date is consistent with the December 2017 end 

date specified in exhibit 4, and it is the more specific term 

in exhibit 1 that controls over the characterization of “a ten 

year period.”38

[20,21] Likewise, we find no error in the district court’s 

conclusion that the parties did not intend to rescind their longterm lease agreement ending in December 2017 when they 

orally agreed in 2015 to change their arrangement with regard 

to the crops to be grown by TNT on the Fife farm. Rescission 

of contract means to abrogate, annul, avoid, or cancel a contract; particularly, nullifying a contract by the act of a party.39

A “rescission” amounts to the unmaking of a contract.40 The 

cancellation, abandonment, or rescission of a written contract 

may not only be written, but it may also be oral.41 As opposed 

to rescission, a modification continues the original contract 

with some changes.42 The terms of a written executory contract 

may be changed by a subsequent parol agreement prior to any 

breach of such contract.43

38 See Hans v. Lucas, 270 Neb. 421, 703 N.W.2d 880 (2005).

39 Hoeft v. Five Points Bank, 248 Neb. 772, 539 N.W.2d 637 (1995).

40 Id.

41 Davco Realty Co. v. Picnic Foods, Inc., 198 Neb. 193, 252 N.W.2d 142 

(1977).

42 See 2A David Frisch, Lawrence’s Anderson on the Uniform Commercial 

Code § 2-209:59 (3d ed. 2013).

43 Atokad Ag. & Racing v. Governors of Knts. of Ak-Sar-Ben, 237 Neb. 317, 

466 N.W.2d 73 (1991), overruled on other grounds, Eccleston v. Chait, 

241 Neb. 961, 492 N.W.2d 860 (1992).
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[22,23] In determining whether a rescission took place, 

courts look not only to the language of the parties but to all the 

circumstances.44 Mutual rescission of a contract must be clear, 

positive, unequivocal, and decisive, and it must manifest the 

parties’ actual intent to abandon their contract rights.45

Fife did not present clear and unequivocal evidence that she 

and Trampe intended to abandon all rights under the written 

long-term lease agreement. Trampe testified that he would not 

have agreed to invest in planting organic alfalfa without the 

assurance under the written lease that he had three full crop 

years to recoup his investment. Further, Fife relied on the “ten 

year” language of the long-term lease agreement when giving 

TNT notice of termination. The district court correctly found 

the evidence demonstrated that Trampe and Fife intended to 

orally modify their long-term written lease agreement to change 

the crops grown and their respective shares and expenses and 

that they intended to leave unchanged the other provisions of 

their agreement, including its duration.

It is undisputed that Fife evicted TNT in December 2016, 

prior to the December 2017 end date of the lease agreement. 

She sent Trampe a letter warning him that if he did not vacate 

the Fife farm by December 31, 2016, he would be considered 

trespassing. TNT accordingly removed its possessions and 

ceased operations on the Fife farm by that time. The district 

court did not err in finding that Fife thereby breached the 

lease agreement.

3. Damages

Fife argues that even if the court were correct in finding her 

liable, it erred in the amount of damages awarded. She generally asserts in this regard that the award of $51,332.26 was 

based on speculative evidence. We disagree.

44 Hoeft v. Five Points Bank, supra note 39.

45 17B C.J.S. Contracts § 585 (2011).
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[24,25] In a breach of contract case, the ultimate objective 

of a damages award is to put the injured party in the same 

position the injured party would have occupied if the contract 

had been performed, that is, to make the injured party whole.46

One injured by a breach of contract is entitled to recover all its 

damages, including the gains prevented as well as the losses 

sustained, provided the damages are reasonably certain and 

such as might be expected to follow the breach.47

[26-28] While damages need not be proved with mathematical certainty, neither can they be established by evidence which 

is speculative and conjectural.48 Uncertainty as to the fact of 

whether damages were sustained at all is fatal to recovery, but 

uncertainty to amount is not if the evidence furnishes a reasonably certain factual basis for computation of the probable 

loss.49 The amount of damages to be awarded is a determination solely for the fact finder, and the fact finder’s decision will 

not be disturbed on appeal if it is supported by the evidence 

and bears a reasonable relationship to the elements of the damages proved.50

In evaluating the evidence of damages in this case, the court 

noted that although Fife and her new tenant had harvested in 

2017 the alfalfa planted by TNT, TNT’s discovery efforts to 

obtain records of the alfalfa production on the Fife farm in 2017 

were wholly unproductive. This left TNT “in the unenviable 

position of having to project the anticipated yield using sources 

of information other than records of the actual yield itself.”

46 Gary’s Implement v. Bridgeport Tractor Parts, 281 Neb. 281, 799 N.W.2d 

249 (2011).

47 Id.

48 Id.

49 Sack Bros. v. Great Plains Co-op, 260 Neb. 292, 616 N.W.2d 796 (2000); 

Union Ins. Co. v. Land and Sky, Inc., 253 Neb. 184, 568 N.W.2d 908 

(1997).

50 Dutton-Lainson Co. v. Continental Ins. Co., 279 Neb. 365, 778 N.W.2d 

433 (2010).
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Fife takes issue with TNT’s proof in its efforts at making 

such projections. First, Fife asserts that the district court erred 

by accepting Trampe’s testimony that TNT would have produced 1,101 tons of alfalfa had he been allowed to stay on the 

land for the 2017 crop year. Fife argues that the district court 

erred by accepting Trampe’s testimony “based solely upon 

[his] farming experience without foundation for the opinion.”51

However, Fife did not object to this testimony during the trial. 

A litigant’s failure to make a timely objection waives the right 

to assert prejudicial error on appeal.52 It was not unreasonable 

for the court to accept Trampe’s calculation over the evidence 

submitted by Fife of the yield produced on the Fife farm in 

2016, when, in 2016, the alfalfa crop was only in its second 

year of production, and Trampe testified that the second year 

of production would ordinarily produce a smaller yield than 

the third year of production.

Second, Fife asserts that the court erred in applying alfalfa’s 2017 market value to the damages calculation, because 

Trampe testified that in 2017, he fed all the alfalfa he produced on other farmland to his cattle. According to Fife, 

because he fed alfalfa to his cattle, it was necessary for 

Trampe to present evidence “as to the economic impact 

feeding one’s own alfalfa has on the impact of his cattle 

production.”53 Fife does not explain why the absence of such 

evidence rendered the damages calculation speculative. We 

find that it was not unreasonable for the district court to 

base damages on the lost market value of the lost crops, 

whether or not Trampe would have fed the 2017 alfalfa yield 

to his cattle.

Third, Fife asserts that the district court did not properly 

deduct from its damages calculation the costs of production, 

specifically, seed costs and transportation costs. The seed costs 

51 Brief for appellant at 20.

52 Ford v. Estate of Clinton, 265 Neb. 285, 656 N.W.2d 606 (2003).

53 Brief for appellant at 21.
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were incurred in 2015, but Fife argues that the court should 

have prorated that expense over the 3 years that remained of the 

lease from the time of the modification to organic alfalfa. The 

district court rejected this argument, reasoning that prorating the 

seed expense would exacerbate the loss to TNT resulting from 

the premature eviction that prevented TNT from recovering the 

benefits of its one-time seed investment over the expected 3-year 

alfalfa cycle. We find no error in this determination.

Likewise, the court’s failure to deduct the transportation 

costs was not unreasonable. As the district court noted, those 

costs were incurred as part of TNT’s normal overhead for its 

cattle operation, and the cost of transporting replacement feed 

used in 2017 had already been paid by TNT. There was no 

evidence that transportation costs were saved rather than used 

to raise and transport replacement feed. Such fixed overhead 

expenses need not be deducted from gross income to arrive at 

the net profit properly recoverable.54

Lastly, Fife asserts that the court erred by adding to TNT’s 

damages calculation the lost benefit of his anticipated 2017 

farm subsidy. Fife points out that the subsidy had not yet been 

approved at the time of trial. Trampe testified, however, that 

TNT’s application for the subsidy had been approved in all 

the prior years on the Fife farm. It was not unduly speculative 

and conjectural for the court to conclude that TNT would have 

received this subsidy in 2017 as well.

We find no merit to Fife’s contention that the amount of the 

district court’s damages award was based on speculative and 

conjectural evidence. Rather, the district court’s decision was 

supported by the evidence and bore a reasonable relationship 

to the elements of the damages proved.

VI. CONCLUSION

The district court did not lack jurisdiction over the action 

brought by TNT against Fife solely in her individual capacity. 

54 See ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 1.
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We affirm the district court’s judgment finding that the lease 

agreement between Fife and TNT was for a period of 11 years, 

that the agreement was not rescinded by the parties’ modification in 2015 of the crops to be grown on the land, and that TNT 

suffered $51,332.26 in damages as a result of Fife’s evicting 

TNT from the Fife farm a year early.

Affirmed.