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Nebraska Court of Appeals Advance Sheets

28 Nebraska Appellate Reports

SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

Silverleaf Investments, LLC, a Nebraska limited 

liability company, appellee, v. Devastator 

Real Estate, LLLP, a South Dakota 

limited liability partnership, 

appellant.

___ N.W.2d ___

Filed April 28, 2020. No. A-19-509.

1. Summary Judgment. Summary judgment is to be granted when there 

is no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law.

2. ____. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that 

there is no genuine issue as to any material fact or as to the ultimate 

inferences that may be drawn from those facts and that the moving party 

is entitled to judgment as a matter of law.

3. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible from 

the evidence.

4. Contracts. A court interpreting a contract must first determine as a matter of law whether the contract is ambiguous.

5. ____. A contract written in clear and unambiguous language is not subject to interpretation or construction and must be enforced according to 

its terms.

6. Contracts: Real Estate: Time. In an ordinary contract for the sale of 

real estate, time is not of the essence unless provided in the agreement 

itself or is clearly manifested by the agreement construed in the light of 

surrounding circumstances.

7. Contracts: Time. In a contract where time is not of the essence, 

performance must be within a reasonable time.

Nebraska Supreme Court Online Library

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

04/28/2020 08:08 AM CDT
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SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

8. ____: ____. When a contract expressly provides for a specific closing 

date, performance is normally due within a reasonable time after the 

date mentioned.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirmed.

Douglas W. Ruge for appellant.

Robert F. Peterson and Kathleen M. Foster, of Peterson & 

Foster Law, for appellee.

Moore, Chief Judge, and Arterburn and Welch, Judges.

Arterburn, Judge.

INTRODUCTION

Silverleaf Investments, LLC (Silverleaf), brought an action 

against Devastator Real Estate, LLLP (Devastator), after 

Devastator terminated an agreement for the purchase of real 

property. The district court for Douglas County entered summary judgment in favor of Silverleaf, and Devastator now 

appeals from the entry of that order. For the reasons that 

follow, we affirm the district court’s order entering summary judgment.

BACKGROUND

On June 4, 2018, the parties executed a “Uniform Commercial 

Purchase Agreement” for Devastator’s purchase of real property located in Omaha, Nebraska, from Silverleaf. Paragraph 

6 of the agreement specified that Devastator would pay an 

initial deposit of $50,000 that would be applied to the overall 

purchase price of $1,585,000. It also detailed the consequences 

should Devastator terminate the agreement:

In the event that [Devastator] cancels this agreement, in 

writing, before the end of the time period specified in 

paragraph 7 the Deposit will be returned to [Devastator]. 

In the event of refusal or failure of [Devastator] to 

consummate the purchase, after all applicable conditions specified in paragraph 7 have been met or waived, 
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SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

[Silverleaf] will retain the Deposit as its liquidated damages for failure to carry out the agreement of sale.

Paragraph 7 of the agreement gave Devastator the right to 

make a complete inspection of the property within 30 days 

after the agreement’s effective date and the sole discretion 

to terminate the agreement and recoup its deposit if it determined the property’s condition was unacceptable. Paragraph 7 

further delineated eight specific conditions that were to occur 

within the first 10 days after the agreement’s effective date. 

The eight conditions in this due diligence provision called 

for Silverleaf to provide various disclosures and documentation regarding title insurance, surveys and plats, environmental reports, leases, zoning information, permits, sanitary 

improvement districts, and profit and loss reports or income 

and expense reports. If each of those eight conditions was not 

satisfied during that time period, then the agreement “shall 

be null and void, and any Deposit returned to [Devastator].” 

The agreement set July 26, 2018, as the “[a]pproximate closing date.”

Silverleaf’s selling agent, Seth Campbell, stated in an affidavit that he had provided to Devastator the required disclosures 

pursuant to paragraph 7 of the agreement. He specifically 

stated that all information available to Silverleaf as referenced 

by paragraph 7 was provided to Devastator’s real estate agent. 

Campbell stated that Silverleaf was ready to close the sale 

of the property on July 26, 2018, and noted that there were 

no defects in the title as of that date. However, according to 

Campbell, Devastator ceased communications and refused to 

close the purchase. Campbell stated, “I am aware that the 

Purchase Agreement did not have a contingency for financing 

and that, in the event of [Devastator’s] refusal to close, the earnest deposit was to be forfeited to [Silverleaf].”

Brian Wragge, who represented Devastator in the transaction, stated in an affidavit that the due diligence period provided by paragraph 7 existed in order for Devastator to obtain 

financing for the purchase. He said that the reason Devastator 
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SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

requested financial information and other disclosures from 

Silverleaf was so that it could be provided to Devastator’s prospective lenders. Wragge stated that Devastator attempted to 

secure financing throughout June and July 2018 and, at lenders’ prompting, requested further information from Silverleaf 

regarding the property’s income. According to Wragge, 

Campbell and he were in communication on behalf of their 

clients through the latter part of July. Wragge stated that 

Silverleaf expressed frustration with the delay in closing on 

July 26 and, for the first time, demanded an immediate closing. From that time and through August 2, the parties were 

negotiating an extension agreement according to Wragge. 

Wragge stated that Devastator “then terminated the purchase 

agreement and sent a form requesting the deposit be returned” 

after a bank denied a loan on July 30. The bank’s denial letter 

regarding Devastator’s loan application listed the reasons for 

denial as “[d]elinquent past or present credit obligations with 

others” and “[u]nable to verify income.”

On August 10, 2018, Silverleaf filed a complaint against 

Devastator, alleging that Devastator’s failure to close the 

purchase was a breach of their purchase agreement, which 

entitled it to retain Devastator’s $50,000 deposit. Devastator 

then filed an answer and counterclaim on October 9, which 

sought dismissal of Silverleaf’s claim. Additionally Devastator 

sought to recoup the $50,000 deposit it paid, contending that 

Silverleaf breached their purchase agreement and did not act 

in good faith.

On March 7, 2019, Silverleaf filed a motion for summary 

judgment. The court heard arguments on the motion on April 

22, during which nine exhibits were admitted, including the 

affidavits from Campbell and Wragge. The court entered an 

order granting summary judgment in favor of Silverleaf on 

April 25. The court determined that the agreement included 

no provision making closing contingent on Devastator’s first 

securing financing. It further determined that Devastator terminated the agreement after its option under paragraph 7 to 
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Nebraska Court of Appeals Advance Sheets

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SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

retain the security deposit expired, that deadline being July 

4, 2018. Thus, the court concluded that Devastator’s termination of the purchase agreement entitled Silverleaf to retain the 

$50,000 security deposit, and the court accordingly entered 

summary judgment in Silverleaf’s favor.

Devastator now appeals.

ASSIGNMENTS OF ERROR

Devastator assigns, restated and consolidated, that the district court erred in granting summary judgment without first 

deciding whether time was of the essence with respect to 

the purchase agreement’s due diligence date and whether, by 

its conduct, Silverleaf waived its right to, or was equitably 

estopped from, strict enforcement of the agreement’s 30-day 

provision.

STANDARD OF REVIEW

[1-3] Summary judgment is to be granted when there is 

no genuine issue of material fact and the moving party is 

entitled to judgment as a matter of law. Wintroub v. Nationstar 

Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019). Under this 

standard of review, summary judgment is proper only when the 

pleadings, depositions, admissions, stipulations, and affidavits 

in the record disclose that there is no genuine issue as to any 

material fact or as to the ultimate inferences that may be drawn 

from those facts and that the moving party is entitled to judgment as a matter of law. Id. In reviewing a summary judgment, 

an appellate court views the evidence in a light most favorable 

to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible 

from the evidence. Id.

ANALYSIS

[4,5] A court interpreting a contract must first determine as 

a matter of law whether the contract is ambiguous. Davenport 

Ltd. Partnership v. 75th & Dodge I, L.P., 279 Neb. 615, 780 

N.W.2d 416 (2010). A contract written in clear and unambiguous 
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SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

language is not subject to interpretation or construction and 

must be enforced according to its terms. Id.

[6-8] Case law states that in an ordinary contract for the 

sale of real estate, time is not of the essence unless provided in 

the agreement itself or is clearly manifested by the agreement 

construed in the light of surrounding circumstances. Pettit v. 

Paxton, 255 Neb. 279, 583 N.W.2d 604 (1998). Where time is 

not of the essence, performance must be within a reasonable 

time. Id. When a contract expressly provides for a specific 

closing date, performance is normally due within a reasonable 

time after the date mentioned. Id.

Time of Essence.

Devastator argues that the parties’ agreement did not provide 

that time was of the essence and that their conduct showed 

that “they did not intend for strict adherence to a 30 day time 

period” as provided by paragraph 7 of the agreement. Brief for 

appellant at 11. Devastator argues that “in the absence of time 

being of the essence, the 30 day time specified in the contract 

was to be performed within a reasonable time.” Id. In essence, 

Devastator is arguing that the agreement’s paragraph 7, which 

provided 30 days during which Devastator could terminate the 

agreement and retain its security deposit, was ambiguous—and 

that, somehow, we ought to understand that the agreement’s 

meaning of “30 days” was actually “a reasonable time” rather 

than the commonly understood quantity of 24-hour periods. 

We disagree.

Devastator urges us to rely on Pettit v. Paxton, supra, and 

to analogize the 30-day provision to a closing date in an agreement where time was not of the essence. Notably, however, 

Devastator does not cite to a case where our courts have previously extended the rationale in such a way, and we have found 

no authority in Nebraska for Devastator’s proposition. In this 

case, the language of the contract is clear and unambiguous 

as to the timeframe to which Devastator needed to adhere in 

order to avoid the possible forfeiture of the deposit. There 

is nothing in the language of the agreement that implies that 
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SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

the due diligence date set is uncertain. In contrast, the parties 

clearly intended the closing date to be a “soft” date. Paragraph 

11 describes July 26, 2018, as the “[a]pproximate closing 

date.” Therefore, where the parties wished to list a “soft” date, 

they did so specifically. However, we see no similar intent in 

the language of paragraphs 6 and 7.

Paragraph 6 provides that if Devastator cancels the agreement, in writing, before the end of the period specified in 

paragraph 7, it is entitled to a refund of its deposit. Paragraph 

7 provided Devastator “Thirty (30) days after the Effective 

Date of this Agreement” to make its inspection of the premises 

and review the materials required to be provided by Silverleaf. 

During that time period, Devastator, in its “sole discretion,” 

could terminate the agreement and obtain the return of the 

deposit if it found the property unacceptable.

Unlike the “[a]pproximate closing date” found in paragraph 

11, the language of paragraphs 6 and 7 is firm. The parties 

could have utilized “soft” language in paragraphs 6 and 7 but 

chose not to do so. As a result, construing the four corners of 

the contract, we find that the language of the due diligence 

clause clearly and unambiguously required Devastator to complete its due diligence within 30 days if it wished to obtain 

a refund of its deposit. Based on the unambiguous language 

contained in this agreement, we cannot find that a “time is of 

the essence” clause was necessary to enforce the 30-day due 

diligence deadline.

By Wragge’s own admission, Devastator terminated the 

agreement after it was unable to secure financing from a bank 

on July 30, 2018. The parties’ agreement was executed on June 

4. While Wragge’s affidavit indicates that additional information was requested from Silverleaf, there is no allegation that 

Silverleaf failed to satisfy the eight conditions set forth by 

paragraph 7. Moreover, Campbell stated in his affidavit that he 

provided the required disclosures to Devastator in accordance 

with paragraph 7. At most, Devastator argues that it requested 

“more clarity on the income[] and expressed additional issues” 
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SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

beyond paragraph 7’s eight specific conditions. Reply brief for 

appellant at 4. The uncontroverted evidence before us shows 

that Devastator terminated the agreement more than 30 days 

after it was signed and that Silverleaf had fulfilled the conditions under paragraph 7 as required. Therefore, pursuant to the 

plain language of the contract, Silverleaf was entitled to retain 

the security deposit.

Waiver and Estoppel.

Devastator also argues that Silverleaf waived its right to 

insist on strict performance of the 30-day provision by continuing to cooperate with Devastator’s attempts to secure 

financing after 30 days. In addition, or perhaps alternatively, 

Devastator argues that Silverleaf’s conduct equitably estops it 

from enforcing the 30-day provision. These arguments are both 

predicated on Devastator’s effort to link its efforts to secure 

financing to the inspection period. Devastator’s right to inspect 

the property and then terminate the agreement and retain its 

deposit within 30 days existed separate of any financing matters. The plain terms of paragraph 7 of the agreement required 

Silverleaf to turn over certain documents within 10 days of 

the agreement’s effective date. Campbell’s unrebutted statement in his affidavit was that he provided all of the required 

documentation to Devastator. Beyond that, Silverleaf’s cooperation with Devastator’s efforts to obtain financing through 

the agreement’s approximate closing date of July 26, 2018, 

appears to have been done in good faith and cannot be understood to waive or otherwise equitably estop enforcement of the 

terms of their agreement.

As the district court’s order granting summary judgment 

notes, “[Devastator’s] arguments might be well taken if it was 

[Silverleaf] that terminated the Agreement when [Devastator] 

was not able to close by July 26, 2018.” But it was Devastator 

that terminated the agreement. The agreement unambiguously 

addressed the consequences of Devastator’s termination more 

than 30 days after the contract was entered. Silverleaf provided 

the requisite disclosures under paragraph 7. While Silverleaf 
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SILVERLEAF INVESTMENTS v. DEVASTATOR REAL ESTATE

Cite as 28 Neb. App. 278

did not immediately seek forfeiture of the deposit upon the 

expiration of the 30 days, the record in no way indicates that it 

waived its ability to do so or engaged in behavior that would 

give rise to a defense of equitable estoppel. Silverleaf did not 

seek the deposit until Devastator terminated the agreement. 

Based on our record, particularly the affidavits of Campbell 

and Wragge, there exists no material issue of fact regarding 

the proper recipient of the $50,000 deposit. The district court 

correctly found that Silverleaf is entitled to judgment as a matter of law.

CONCLUSION

Based on the foregoing, we conclude that the district court 

correctly entered summary judgment in favor of Silverleaf and 

awarded it the $50,000 deposit. We therefore affirm the order 

of the district court.

Affirmed.