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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

George Clift Enterprises, Inc., a Texas corporation, 

doing business as Eslabon Properties, appellant and 

cross-appellee, v. Oshkosh Feedyard Corporation, 

a Nebraska corporation, and Terry Jessen, 

appellees and cross-appellants, and 

Jeff Betley et al., appellees.

___ N.W.2d ___

Filed August 14, 2020. No. S-19-700.

1. Motions for Continuance: Appeal and Error. A trial court’s grant 

or denial of a continuance is within the discretion of the trial court, 

whose ruling will not be disturbed on appeal in the absence of an abuse 

of discretion.

2. Attorney Fees: Appeal and Error. On appeal, an appellate court 

will uphold a lower court’s decision allowing or disallowing attorney 

fees for frivolous or bad faith litigation in the absence of an abuse 

of discretion.

3. Moot Question: Justiciable Issues: Appeal and Error. Mootness is a 

justiciability question that an appellate court determines as a matter of 

law when it does not involve a factual dispute.

4. Pretrial Procedure. Generally, the control of discovery is a matter for 

judicial discretion.

5. Summary Judgment: Motions for Continuance: Affidavits. Neb. Rev. 

Stat. § 25-1335 (Reissue 2016) provides a safeguard against an improvident or premature grant of summary judgment.

6. ____: ____: ____. As a prerequisite for a continuance, additional time, 

or other relief, a party is required to submit an affidavit stating a reasonable excuse or good cause for the party’s inability to oppose a summary 

judgment motion.

7. Summary Judgment: Motions for Continuance: Pretrial Procedure.

In ruling on a request for a continuance or additional time in which 

to respond to a motion for summary judgment, a court may consider 

Nebraska Supreme Court Online Library

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

09/10/2020 04:09 PM CDT
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

whether the party has been dilatory in completing discovery and preparing for trial.

8. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

9. Brokers: Property: Contracts: Sales. A broker employed for a definite 

time to effect a sale of property must perform whatever obligations the 

contract imposes upon the broker within the time limited.

10. Brokers: Real Estate: Contracts: Sales. Ordinarily, a real estate broker who, for a commission, undertakes to sell land on certain terms and 

within a specified period is not entitled to compensation for his or her 

services unless he or she produces a purchaser within the time limit who 

is ready, willing, and able to buy upon the terms prescribed.

11. Brokers: Contracts: Sales. The right to compensation based on the 

broker’s production of a purchaser ready, willing, and able to buy upon 

terms specified by the principal or satisfactory to him or her is not 

impaired by the subsequent inability or unwillingness of the owner to 

consummate the sale on the terms prescribed.

12. ____: ____: ____. In a listing agreement contemplating the negotiation 

of terms, a commission is not earned by the broker until an agreement 

upon the terms is reached between the buyer and seller.

13. Brokers: Property: Contracts: Sales. When the broker has failed to 

perform the condition upon which he or she was to be paid, there is an 

end to the contract; all contractual obligations of the owner toward the 

broker are terminated and the parties stand as if a contract had never 

been made; the market for the sale of the owner’s property is not circumscribed by the fact that some or all available purchasers have theretofore been approached by the broker.

14. Brokers: Contracts: Sales. Clauses in exclusive listing agreements setting forth a protection, extension, or safety period after the listing period 

are strictly construed as setting the limits of the time period in which a 

sale must take place for a commission to be recoverable.

15. ____: ____: ____. Protection clauses are meant to protect a broker from 

losing a commission earned during a listing period due to evasive conduct of the buyer and seller.

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

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

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

was the intention to waive.

17. Breach of Contract: Damages: Proximate Cause: Proof. In any 

damage action for breach of contract, the claimant must prove that 
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

the breach of contract complained of was the proximate cause of the 

alleged damages.

18. Breach of Contract: Damages. There must be a causal relationship 

between the damages asserted and the breach of contract relied upon.

19. Judgments: Breach of Contract: Damages: Proof. Proof which leaves 

the causal relationship between the damages asserted and the breach of 

contract relied upon in the realm of speculation and conjecture is insufficient to support a judgment.

20. Conspiracy: Words and Phrases. A civil conspiracy is a combination 

of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

21. Conspiracy: Torts: Proof. A claim of civil conspiracy requires the 

plaintiff to establish that the defendants had an expressed or implied 

agreement to commit an unlawful or oppressive act that constitutes a tort 

against the plaintiff.

22. Conspiracy: Damages. The gist of a civil conspiracy action is not the 

conspiracy charged, but the damages the plaintiff claims to have suffered due to the wrongful acts of the defendants.

23. Actions: Conspiracy. A civil conspiracy is actionable only if the alleged 

conspirators actually committed some underlying misconduct.

24. Actions: Conspiracy: Torts. Without an underlying tort, there can be 

no cause of action for a conspiracy to commit the tort.

25. Torts: Intent: Proof. To succeed on a claim for tortious interference 

with a business relationship or expectancy, a plaintiff must prove (1) the 

existence of a valid business relationship or expectancy, (2) knowledge 

by the interferer of the relationship or expectancy, (3) an unjustified 

intentional act of interference on the part of the interferer, (4) proof that 

the interference caused the harm sustained, and (5) damage to the party 

whose relationship or expectancy was disrupted.

26. ____: ____: ____. One of the basic elements of tortious interference 

with a business relationship requires an intentional act that induces or 

causes a breach or termination of the relationship or expectancy.

27. Brokers: Real Estate: Contracts: Sales. Real estate broker agreements, 

like other contracts, contain an implied covenant of good faith pursuant 

to which the seller impliedly covenants he or she will do nothing that 

will have the effect of destroying or injuring the right of the broker to 

earn a commission.

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

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

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

29. Actions: Attorney Fees: Words and Phrases. Frivolous for the purposes of Neb. Rev. Stat. § 25-824 (Reissue 2016) is defined as being 

a legal position wholly without merit, that is, without rational argument based on law and evidence to support a litigant’s position in 

the lawsuit.

30. Words and Phrases. Frivolous connotes an improper motive or legal 

position so wholly without merit as to be ridiculous.

31. Judgments: Claims: Words and Phrases. The determination of 

whether a particular claim or defense is frivolous must depend upon the 

facts of the particular case.

32. Moot Question. Mootness refers to events occurring after the filing of 

a suit, which eradicate the requisite personal interest in the resolution of 

the dispute that existed at the beginning of the litigation.

33. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

34. Attorney Fees: Appeal and Error. Allocation of amounts due between 

offending parties and attorneys is “part and parcel” of the determination 

of the amount of an award and is reviewed for an abuse of discretion.

Appeal from the District Court for Garden County: Derek 

C. Weimer, Judge. Affirmed in part, and in part reversed and 

remanded with directions.

James R. Korth, of Reynolds, Korth & Samuelson, P.C., 

L.L.O., for appellant.

Sterling T. Huff, P.C., L.L.O., for appellees Oshkosh 

Feedyard Corporation and Terry Jessen.

David W. Pederson, of Pederson Law Office, for appellees 

Jeff Betley et al.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

I. NATURE OF CASE

A real estate agency appeals from an order of summary 

judgment against it in an action brought against the seller 

and buyers for the alleged breach of an exclusive listing 
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

agreement and tortious interference with a contract, business 

relationship, or expectation. The sale at issue occurred both 

after the listing period and after the protection period of the 

agreement, and no commission was paid. All negotiations for 

the sale were conducted directly between the seller and buyers 

with the real estate agent’s knowledge, and the defendants all 

denied any bad faith attempt to delay reaching an agreement or 

consummating the sale until after expiration of the exclusive 

listing agreement. On appeal, the real estate agency argues 

that the summary judgment hearing, held approximately 18 

months after the action was filed, was premature because the 

agency had not yet conducted depositions. It also contests the 

court’s determination that attorney fees were appropriate on 

the ground that the action was frivolous.

II. BACKGROUND

This action involves the sale of a feedyard formerly owned by 

Oshkosh Feedyard Corporation (Oshkosh Feedyard). Oshkosh 

Feedyard is owned 100 percent by the Jessen Family Limited 

Partnership. The Jessen Family Limited Partnership has three 

general partners, Terry Jessen (Jessen), Gwen Jessen, and 

Joni Cowan. Summer Parker and Mariah Preistle are limited 

partners. Jessen is the president of Oshkosh Feedyard and the 

managing partner of the Jessen Family Limited Partnership.

On July 15, 2013, Jessen, on behalf of Oshkosh Feedyard, 

entered into an exclusive listing agreement with George Clift 

Enterprises (GCE), through GCE’s agent, Richard Bretz, for 

the sale of Oshkosh Feedyard.

1. Exclusive Listing Agreement

Under the agreement, the listing price was $4.5 million. The 

agreement was to be in effect for a period of time beginning on 

the effective date of the contract and continuing uninterrupted 

for 12 months. The agreement provided for both a “listing fee” 

and a “[b]rokerage [f]ee.”

The listing fee was $4,000 payable immediately upon execution of the agreement, and there is no dispute that it was paid.
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

The brokerage fee was 4.5 percent of the sales price to 

be earned and was payable when the following conditions 

were met:

1. The sale of the property closes.

2. Owner defaults after Broker produces a ready, willing and able buyer agreeable to Owner’s price and terms 

as stated herein or after signing by Owner and Buyer any 

letter, memorandum, or contract that contains agreements 

to convey the Property. The sale price under this clause 

shall be the lesser of the listing price or the sale price 

stated in any signed documents.

3. Buyer defaults and Owner retains any earnest money. 

The commission fee shall be calculated on the amount of 

earnest money received by the Owner.

The agreement also contained a protection period clause 

as follows:

PROTECTION PERIOD: Owner agrees to pay the 

Brokerage Fee under the same terms and conditions specified above if, within two months after termination of this 

agreement, the Property should be under contract, sold, 

transferred, exchanged or conveyed to: (1) any person(s) 

or entity to whom Broker submitted the Property and 

of whom Owner had actual knowledge and/or (2) any 

person(s) or entity to whom Broker submitted the Property 

and whose name shall be included on a list delivered to 

Owner by Broker within thirty (30) days after termination hereof or (3) any person(s) or entity who contacted 

Owner concerning the sale of the Property or to whom 

Owner submitted the Property for sale during the term 

hereof and whose name Owner either refused or failed 

to refer to Broker. Owner agrees to refer all prospective 

buyers to Broker and agrees not to negotiate with such 

prospective buyers.

A confidentiality provision stated, “Broker will perform its 

consulting role in a non-confidential manner, but will enter 

into a valid Confidentiality Agreement with interested parties 
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

prior to distributing financial or other proprietary information 

provided by Owner.” The agreement was “the entire agreement 

of the Parties regarding the Property and may not be changed 

except by written agreement signed by the Parties.”

2. Purchasers

In early 2014, Jeff Betley, Marc Braun, and Bill Matzke, all 

Wisconsin residents, discussed their mutual interest in purchasing a feedyard in the Kansas, Nebraska, or Colorado region. In 

April 2014, Betley contacted Bretz, informing him that Betley, 

Braun, and Matzke were looking for a feedyard for their 

dairy heifers.

Meanwhile, Jessen had become discontented with Bretz’ 

efforts at selling Oshkosh Feedyard. Bretz suggested to Betley 

several different feedyards that were for sale. Bretz mentioned 

Oshkosh Feedyard, but did not recommend it.

At the same time, a friend of Matzke’s recommended 

Oshkosh Feedyard and told him to contact Jessen if he was 

interested. Matzke did so, and Jessen gave Betley, Braun, and 

Matzke a tour of the feedyard in May 2014. But Betley, Braun, 

and Matzke were clear that they were just getting started looking at different feedyards and were not yet in a position to 

make an offer. According to Jessen’s uncontested averment, 

Jessen advised Bretz that he was communicating with Betley, 

Braun, and Matzke regarding a possible sale, and Bretz raised 

no objection.

In June 2014, Bretz was in contact with Braun by email, 

recommending a Kansas feedyard for them. In the email, Bretz 

also stated:

Regarding the Oshkosh yard, there is nothing that 

would help more in resolving the owner’s and my challenge over the exclusive listing than getting the yard sold. 

Please continue forward on that project as long as it is 

viable to you. The owner and I will deal with the listing agreement.

Braun averred, “Bretz went on to tell me that Betley, 

Matzke and I should continue our discussions about the sale 
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

of . . . Oshkosh Feedyard with Jessen, and that Bretz and 

Jessen would work things out.” No evidence was submitted 

disputing this statement.

Sometime in the summer of 2014, Betley, Braun, and 

Matzke decided to try to purchase Oshkosh Feedyard. They 

negotiated with Jessen and eventually formed Oshkosh Heifer 

Development LLC, with Jessen as a member, on August 12 

for that purpose. After further negotiations, Oshkosh Heifer 

Development finalized a purchase agreement with Oshkosh 

Feedyard in December. It was not until December 12 that 

Oshkosh Heifer Development had adopted a corporate resolution authorizing Braun to execute the purchase agreement, 

promissory note, and deed of trust on its behalf for the purchase of Oshkosh Feedyard.

The listing period of the exclusive listing agreement had 

expired on July 15, 2014, and the protection period had expired 

on September 15.

3. 2014 Action

On August 18, 2014, GCE filed a complaint against Oshkosh 

Feedyard alleging that Oshkosh Feedyard had breached the 

listing agreement by not referring to GCE “one or more 

prospective buyer(s)” with whom Oshkosh Feedyard or its 

agents had contact and by “engaging in negotiation with any 

prospective buyer(s).” As damages for GCE’s lost opportunity 

to contact such prospective buyers and negotiate with such 

prospective buyers, GCE sought the amount of a $202,500 

commission, based on the list price, plus $20,000 allegedly 

expended by GCE in efforts to market the property. On July 

17, 2017, the court dismissed the action without prejudice for 

lack of prosecution. The court noted that nothing had been 

filed with the court since December 2014 to indicate the matter 

was being actively pursued and that responses to discovery had 

been delayed for an extended period of time. The court elaborated that although GCE had engaged new counsel in the 2014 

action, it still had not moved appreciably forward.
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

4. September 2017 Complaint

On September 7, 2017, GCE filed a new complaint against 

Oshkosh Feedyard, Jessen, Betley, Braun, Matzke, and Oshkosh 

Heifer Development, alleging that pursuant to the terms of the 

exclusive listing agreement with Oshkosh Feedyard, it was 

entitled to a reasonable brokerage fee on the sale of the property. GCE alleged it had made a reasonable effort to market 

and procure a buyer for Oshkosh Feedyard. GCE alleged that 

Betley, Braun, and Matzke had sought information from GCE 

about Oshkosh Feedyard on or around April 29, 2014.

In its first cause of action, GCE alleged that Jessen, on 

behalf of Oshkosh Feedyard, breached the exclusive listing 

agreement by negotiating with and failing to refer to GCE 

prospective buyers during the period of the agreement, thereby 

causing GCE to lose the opportunity to contact and negotiate 

with prospective buyers. As in the prior 2014 action that was 

dismissed for lack of prosecution, GCE sought damages in 

the amount of $202,500, representing 4.5 percent of the list 

price of $4.5 million, plus $20,000 in expenses in advertising 

the listing.

In its second cause of action, GCE alleged a claim of 

tortious interference with a contract, business relationship, or 

expectation. In this regard, GCE alleged that all the defendants 

were aware of the exclusive listing agreement; that despite 

such knowledge, Betley, Braun, and Matzke contacted Jessen 

directly about purchasing Oshkosh Feedyard; and that Jessen 

failed to refer them to GCE. GCE alleged that Jessen, Betley, 

Braun, and Matzke improperly and unjustly colluded to arrange 

terms of a sale that deprived GCE of the brokerage fee owed to 

it under the exclusive listing agreement. GCE claimed the same 

amount of damages.

5. February 2018 Amended Complaint

On February 9, 2018, the court granted a motion by GCE’s 

attorney to withdraw on the grounds that GCE had terminated 

representation by him and that GCE had found new counsel.
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

On February 28, 2018, GCE filed an amended complaint, 

setting forth in essence the same two causes of action. In the 

first cause of action, GCE alleged that Jessen and Oshkosh 

Feedyard breached the provisions of the exclusive listing 

agreement by (1) negotiating with prospective buyers and (2) 

failing to submit Betley, Braun, and Matzke to GCE as prospective buyers.

In the second cause of action, GCE alleged that the 

defendants all engaged in a conspiracy to tortiously interfere with GCE’s contract, business relationship, or expectation. Specifically, GCE alleged Betley, Braun, and Matzke 

conspired with Jessen to “arrange terms of a sale which 

deprived Plaintiff of the Brokerage Fee owed to Plaintiff 

under the Exclusive Listing Agreement.” The factual allegations of the amended complaint were similar to those of the 

original complaint, but GCE added the allegation that there 

was an in-person meeting between Jessen and Betley, Braun, 

and Matzke in March 2014, within the 12-month exclusivity 

period, to discuss the sale of Oshkosh Feedyard. GCE further 

alleged that Betley, Braun, and Matzke had begun placing 

their heifers in and operating Oshkosh Feedyard as early 

as August 2014, during the protection period. GCE sought 

$198,500 as damages, calculated as 4.5 percent of the alleged 

sale price of $4.5 million, less the $4,000 listing fee paid by 

Oshkosh Feedyard.

In their answers, the defendants denied the operative allegations of the amended complaint. They alleged that during 

the listing period, GCE knew of Betley, Braun, and Matzke’s 

interest in the property and had discussions with them, and that 

thus, GCE could not be damaged by any lack of referral. The 

defendants alleged that at no time did GCE produce a buyer 

who was ready, able, and willing to consummate the purchase 

based on the terms of the listing agreement. Further, the 

property was not sold within the 2-month protection period. 

Betley, Braun, and Matzke alleged that Bretz, on behalf of 

GCE, had consented to and encouraged their discussions 
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

with Jessen. All the defendants affirmatively alleged that the 

causes of action were frivolous and brought in bad faith.

6. Discovery

Discovery disputes arose between the parties. Jessen and 

Oshkosh Feedyard had answered, partially answered, or agreed 

to provide at a later date answers to the majority of the first set 

of interrogatories and had provided or promised to supplement 

answers for the majority of the first requests for production of 

documents. But in March 2018, GCE moved to compel Jessen 

and Oshkosh Feedyard to supplement their answers to GCE’s 

requests for admissions and interrogatories and its first set of 

requests for production of documents. Jessen and Oshkosh 

Feedyard had objected to all of the requests for admissions 

as vague, ambiguous, and irrelevant, noting that they could 

not answer any requests based upon the exclusive listing 

agreement when that agreement was not attached. The court 

sustained Jessen and Oshkosh Feedyard’s objections to the 

requests for admissions but sustained in part GCE’s motion 

to compel.

On May 14, 2018, GCE was still unable to identify in 

response to Jessen and Oshkosh Feedyard’s requests for production of documents any document GCE intended to offer 

as evidence at trial or summary judgment. GCE stated it had 

“made no determination of what evidence will be offered” and 

would “supplement in accordance with the applicable state and 

local rules of discovery.”

Certain supplemental answers were served on GCE in May 

2018, but, on that same date, Jessen and Oshkosh Feedyard 

moved for a protection order in relation to one of the interrogatories, in order to protect proprietary information related 

to Oshkosh Feedyard’s business practices, fees, and customers. GCE filed a motion to compel. The court resolved this 

dispute after approving a joint stipulation for a protective order 

in August 2018, and GCE eventually withdrew its motion 

to compel.
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

In September 2018, Jessen and Oshkosh Feedyard moved 

the court to compel GCE to answer discovery, which motion 

the court later denied on the ground that it referred to the first 

complaint that was no longer operative. In October 2018, GCE 

moved for an order compelling Jessen and Oshkosh Feedyard 

to fully answer its second sets of written interrogatories and 

requests for production of documents and its third sets of 

requests for admissions and written interrogatories. GCE also 

requested sanctions. The court overruled Jessen and Oshkosh 

Feedyard’s objections and required Jessen and Oshkosh 

Feedyard to answer GCE’s second, third, and fourth sets of 

interrogatories, but it denied GCE’s request for sanctions.

In December 2018, GCE asked for leave to issue a subpoena on a third party, Settje Agri Services & Engineering, 

Inc., seeking any and all documents pertaining to services 

rendered during 2014 to Oshkosh Feedyard, Jessen, Betley, 

Braun, Matzke, or Oshkosh Heifer Development. Jessen and 

Oshkosh Feedyard objected on the grounds that the information that would include feedyard design would furnish 

information to a competitor and was irrelevant to the alleged 

breach of the listing agreement. The court granted Jessen and 

Oshkosh Feedyard’s motion for a protective order to the extent 

the communications requested were proprietary or protected 

by privilege.

On January 4, 2019, and again on February 27, GCE moved 

for an order to compel Betley, Braun, Matzke, and Oshkosh 

Heifer Development to fully answer its second sets of interrogatories and requests for production of documents, which had 

been sent in October 2018. While answers and responses had 

been served on GCE in January 2019, GCE asserted that two of 

the answers and responses were only partially responsive. The 

February 2019 motion was overruled in March.

7. Motion to Disqualify

Jessen and Oshkosh Feedyard had moved to disqualify 

GCE’s attorneys in April 2018. The motion was based on the 
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

fact that attorneys from the same law firm were representing Parker, Preistle, Gwen Jessen, the Jessen Family Limited 

Partnership, and Oshkosh Feedyard in a separate action against 

Jessen for self-dealing and other alleged breaches of his fiduciary duties. Oshkosh Feedyard, represented by Jessen and the 

attorneys in the action brought by GCE, alleged that GCE’s 

attorneys had a conflict of interest. GCE alleged that Oshkosh 

Feedyard, through Jessen, lacked standing to raise any such 

conflict of interest.

Following an evidentiary hearing, the court denied the 

motion to disqualify. The court concluded that Jessen, as a 

general partner in the Jessen Family Limited Partnership, had 

standing to raise a concern on behalf of Oshkosh Feedyard pertaining to counsel’s conflict of interest in representing Oshkosh 

Feedyard as a plaintiff in one action while suing Oshkosh 

Feedyard as a defendant in another action. But the court found 

there was no apparent conflict of interest, because if the plaintiffs are unsuccessful in either action, then Oshkosh Feedyard 

would suffer no loss.

8. Motion for Summary Judgment 

and Motion for Continuance of 

Summary Judgment Hearing

In two separate motions, the defendants moved, on January 

15, 2019, for summary judgment. Thereafter, on January 28, 

2019, GCE filed, for the first time, notices of depositions of 

Jessen, Betley, Braun, and two other individuals, to take place 

the end of May.

On March 1, 2019, GCE filed an opposition to the motions 

for summary judgment by the defendants or, in the alternative, a motion for a continuance of the summary judgment 

hearing. In its motion, GCE noted that “while written discovery in this case is substantially completed, there are still matters of written discovery which are incomplete,” such as the 

documents GCE expected to receive from Settje Agri Services 

& Engineering. GCE also pointed out that depositions had 

not yet been conducted, asserting that the depositions were 
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GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

“absolutely essential, especially those of the Defendants.” 

GCE asserted that depositions would afford GCE the best 

mechanism for exploring communications between the 

defendants pertaining to their plans and activities to purchase 

Oshkosh Feedyard during the listing or protection period of 

the exclusive agency agreement. GCE indicated that the delay 

in discovery had been due to disputes between the parties 

through which GCE had “been forced to file five motions 

to compel.”

On March 19, 2019, the court heard the defendants’ motions 

for summary judgment and took the matter under advisement. 

Following the hearing, the defendants moved for a protective order against the pending depositions for several reasons, 

including that the depositions would become moot if the court 

ruled in their favor on their motions for summary judgment.

At the summary judgment hearing, the defendants submitted 

affidavits as well as documentary evidence that they believed 

demonstrated a lack of any material issue of fact.

(a) Correspondence

Correspondence admitted at the summary judgment hearing 

demonstrated that Betley reached out to Bretz sometime before 

April 29, 2014, expressing an interest in purchasing a feedyard somewhere in the United States for heifers coming from 

Wisconsin and Michigan. Betley described that “[w]e should 

be in the 15,000 to 20,000 head range based on dairy heifer 

bunk space requirements” and that “If yard is smaller expansion should be a possibility.”

Later that day, Betley requested from Bretz more information on a feedyard in Texas. In the evening of April 29, 2019, 

Bretz sent to Betley the book for the feedyard in Texas. Bretz 

asked Betley for more information in order to “put together a 

list of properties that might fit.” According to Bretz, if heifers 

were coming from Wisconsin, “a Kansas or Nebraska yard may 

make more sense.”

Around the same time, on April 22, 2014, there was correspondence between Dallas Kime and Matzke in which Kime 
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Cite as 306 Neb. 775

sent Matzke information about Oshkosh Feedyard as a prospect and told Matzke to contact Jessen if he was interested. 

An email on April 23 reflects that Matzke contacted Jessen by 

telephone that day and that Matzke was interested in seeing 

the property.

On April 29, 2014, Jessen emailed Matzke telling him he 

had a verbal purchase offer on Oshkosh Feedyard, explaining, 

“Obviously I want to wait for you IF that might lead to a better 

offer to me, but likewise I don’t want this offer to go away and 

no offer to be made by your group.”

On May 1, 2014, Matzke responded to Jessen, thanking him 

for letting him know about the status of Oshkosh Feedyard but 

explaining, “We are just starting to explore our options after 

spending 2 years discussing this project.” Matzke stated, “We 

are not in any position at this time to make any offers,” as well 

as that Jessen should not hold off on accepting other offers he 

might receive.

However, Matzke offered to come look at Oshkosh Feedyard 

on May 3, 2014, since he was going to be in western Kansas 

that week looking at cattle. Subsequent correspondence reflects 

that Matzke and Jessen arranged for Jessen to show Oshkosh 

Feedyard to Matzke on May 10.

On May 10, 2014, Bretz wrote an email to Betley, apologizing for a “slow response.” The email then proceeded to refer 

to several feedyards, other than Oshkosh Feedyard, which 

Bretz proposed would be “a fit.” Bretz also attached the book 

on Oshkosh Feedyard, but “more to provoke thought than an 

outright suggestion.” Bretz described Oshkosh Feedyard as “an 

older yard with a small feedmill [that] would be at the small 

end to handle the number of heifers you will grow.”

In an email from Jessen to Betley and Braun on May 12, 

2014, Jessen expressed that he enjoyed their visit and thanked 

Betley and Braun for “taking the time to look and consider.” 

Jessen stated further:

Please contact me with your questions as they come 

up. I was at the lot tonight for another showing. I feel that 

the time is right & a buyer will come forward. If the lot 
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is right for you, please let me know your thoughts. I feel 

that your group would be good for Oshkosh Nebraska !

On June 20, 2014, Bretz emailed Braun. Bretz thanked 

Braun for signing a confidentiality agreement. Most of the 

email discussed a particular feedyard in Kansas, Pawnee Valley 

Feeders, as a good option for Betley, Braun, and Matzke’s 

needs, as well as two other feedyards in Kansas that might 

be a good fit but which Bretz would not be able to look at 

personally until July 7. Bretz closed the email with a note on 

Oshkosh Feedyard:

Regarding the Oshkosh yard, there is nothing that 

would help more in resolving the owner’s and my challenge over the exclusive listing than getting the yard sold. 

Please continue forward on that project as long as it is 

viable to you. The owner and I will deal with the listing agreement.

Correspondence from Braun to Betley and Matzke on that 

same date appears to indicate that Braun was interested in 

the Pawnee Valley Feeders yard. Braun attached the book 

for Pawnee Valley Feeders in an email that said, “I signed a 

confi[dentiality] agreement and he stressed the importance of 

not discussing with anyone. Bill can you do some homework 

on the feed availability in this area? The lot looks awesome.”

(b) Matzke’s Affidavit

Matzke in his affidavit averred that he had never heard of 

Jessen or Oshkosh Feedyard until sometime around April 22, 

2014, when a friend, Kime, advised him that Oshkosh Feedyard 

was for sale and he contacted Jessen. On April 29, Jessen 

advised that he had another offer on the property. Betley, 

Braun, and Matzke visited the property on May 10. Matzke 

was aware that Betley was in contact with Bretz on their behalf 

regarding feedyards for sale as early as April 29.

In June 2014, Betley, Braun, and Matzke were still looking at various feedyards. Matzke averred that while they 

had signed confidentiality agreements related to several feedyards that they were considering, they had not signed any 
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such agreement with Bretz, Jessen, or anyone else regarding 

Oshkosh Feedyard.

Matzke received a forwarded email on June 20, 2014, 

that Braun had received from Bretz. Matzke understood that 

GCE and Bretz had given him, Betley, and Braun consent to 

visit directly with Jessen in an attempt to purchase Oshkosh 

Feedyard. Matzke averred that he was unaware of any listing 

agreement between Bretz and Oshkosh Feedyard until June 20. 

He did not see a copy of the agreement until the lawsuit was 

filed 3 years later.

Matzke averred that sometime in the summer of 2014, 

Betley, Braun, and Matzke decided to try to purchase Oshkosh 

Feedyard and, in the course of discussions, came to an agreement to form a limited liability company that would include 

Jessen “to share the potential financial obligations and provide 

us with a local contact through Jessen for operational purposes.” Thus, Oshkosh Heifer Development was formed on 

August 12. Matzke averred that Oshkosh Heifer Development 

did not finalize an agreement to purchase Oshkosh Feedyard 

until December.

Matzke averred that he had never spoken with Jessen about 

delaying the purchase or trying to deprive GCE of a commission 

and that he lacked any intent to damage GCE. Matzke averred 

that he, Betley, Braun, and Oshkosh Heifer Development had 

incurred legal fees and expenses of $14,877.50 in defending 

the lawsuit against them.

(c) Braun’s Affidavit

Braun’s affidavit mirrored Matzke’s. He averred that he 

had never heard of Jessen or Oshkosh Feedyard until Matzke 

advised him in early 2014 that Oshkosh Feedyard was for sale. 

He was aware that Betley was in contact with Bretz on his, 

Betley’s, and Matzke’s behalf regarding feedyards for sale as 

early as April 29. In June, he, Betley, and Matzke were still 

looking at various feedyards.

On or about June 20, 2014, Bretz called Braun, “advising 

[him] that [Bretz] had a listing agreement on . . . Oshkosh 
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Feedyard, and that he had experienced numerous problems 

dealing with Jessen on the sale of that feedyard.” Braun 

averred, “Bretz went on to tell me that Betley, Matzke and I 

should continue our discussions about the sale of . . . Oshkosh 

Feedyard with Jessen, and that Bretz and Jessen would work 

things out.”

Braun averred that he, Betley, and Matzke did not decide to 

try to purchase Oshkosh Feedyard until the summer of 2014 

and that they came to an agreement with Jessen to form a limited liability company also in the summer of 2014. Oshkosh 

Heifer Development did not finalize an agreement to purchase 

Oshkosh Feedyard until December 2014. Braun was not aware 

of a listing agreement between GCE and Oshkosh Feedyard 

until June 20, 2014, and he did not see the agreement until the 

lawsuit was filed 3 years later.

Braun understood that GCE and Bretz had given him, Betley, 

and Matzke consent to visit directly with Jessen in an attempt 

to purchase Oshkosh Feedyard. The first time Braun became 

aware that GCE had an objection of any kind to Jessen’s selling Oshkosh Feedyard to Oshkosh Heifer Development was 

in October 2017. Braun averred that he never engaged in any 

discussion with Jessen about delaying the purchase or trying to 

deprive GCE or Bretz of a commission and that he never had 

such intent.

(d) Betley’s Affidavit

Betley’s affidavit is nearly identical to the others. Betley 

averred that from May 7 to 13, 2014, he exchanged emails 

with Bretz wherein Bretz provided him with information on 

Oshkosh Feedyard. Betley averred that he had never spoken 

with Jessen about delaying the purchase or depriving GCE 

or Bretz of a commission and had never intended to damage 

either of them.

(e) Jessen’s Affidavit

Jessen averred that he had no contact with Betley, Braun, 

or Matzke about their purchasing Oshkosh Feedyard until 
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April 2014, when Matzke contacted him. Before that contact, his “relationship with Bretz had deteriorated primarily 

because [he] felt that Bretz was doing a poor job of trying to 

sell [Oshkosh Feedyard].”

In April or May 2014, Jessen “advised Bretz that I was communicating with the other Defendants about a possible sale of 

[Oshkosh Feedyard] to them, and Bretz raised no objection 

or complaint about the communication at that time.” Jessen 

also saw the email communication between Bretz and Braun. 

Jessen averred that Bretz “never complained to me about my 

direct contact with the other Defendants in an attempt to sell 

[Oshkosh Feedyard].”

Jessen averred that Bretz was “fully aware of the other 

defendants,” noting that on August 14, 2014, Bretz provided 

Jessen with “at least two of the defendant[s’] names . . . on 

a list captioned ‘Oshkosh Prospective Buyers.’” A document 

entitled “Oshkosh Prospective Buyers,” dated July 15, 2013, 

through July 14, 2014, lists Betley and Braun.

Jessen averred that at no time did he discuss a delay in 

closing on Oshkosh Feedyard with Betley, Braun, or Matzke; 

attempt to persuade them regarding one; or take any other 

action that would have damaged GCE.

According to Jessen, at some point before the end of the 

listing agreement, he retained counsel on behalf of Oshkosh 

Feedyard. With about 3 weeks left of the agreement, Oshkosh 

Feedyard’s counsel informed GCE’s counsel that GCE should 

continue its pursuit of any buyers who would be ready, willing, 

and able to sign a purchase agreement for the full listing price 

before the end of the listing agreement on July 15, 2014.

The letter from Oshkosh Feedyard’s counsel was received 

by GCE’s counsel on the same date when Bretz sent the email 

that Betley, Braun, and Matzke understood to be encouraging 

them to negotiate directly with Jessen if they were interested 

in Oshkosh Feedyard. Jessen averred that GCE was never 

able to find a buyer ready, willing, and able to pay the full 

listing price or able to obtain any written or verbal offer from 
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a potential purchaser during either the listing period or the 

protection period.

Jessen described that he became a member of Oshkosh Heifer 

Development “after the other Defendants and I determined that 

if they were going to purchase and operate [Oshkosh Feedyard], 

it would be beneficial to them to have a local contact since all 

of them lived in other states.” Further, “[t]he closing on the 

sale of [Oshkosh Feedyard] did not occur until December of 

2014; because not all of the details of the purchase or ongoing 

operations had been finalized until then.” Jessen averred that 

the limited liability corporation was formed in August 2014 

“so that the investors/members would have an entity to use 

to purchase [Oshkosh Feedyard] and conduct business in the 

event the numerous investors/members reached an agreement 

to proceed.” Jessen explained that “[i]t took extensive time for 

many months after the termination of the listing agreement to 

determine investors/members and reach an agreement on the 

sale of [Oshkosh Feedyard].”

Jessen averred that this is the second time Oshkosh 

Feedyard has been sued by GCE on similar claims. The prior 

lawsuit was filed just 4 days after Bretz furnished Jessen with 

the prospective buyers list, and before the protection period 

had lapsed.

(f) Sterling Huff’s Affidavit

Sterling Huff, attorney for Jessen and Oshkosh Feedyard, 

began representing Jessen and Oshkosh Feedyard before the 

expiration of the listing agreement. According to the pleadings, 

Jessen, on behalf of Oshkosh Feedyard, sought legal counsel in 

early May 2014. Attached to Huff’s affidavit was correspondence between Huff and GCE’s counsel at that time in which 

Huff explained that Jessen was unhappy with the amount of 

effort Bretz had put into advertising the $4.5 million listing, 

for which Oshkosh Feedyard had already paid a $4,000 upfront 

listing fee.

In correspondence in June 2014 between Huff and counsel at 

the time for GCE, Huff communicated:
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[I]t appears your client has 23 days left in its contract to 

make good on its hallowed promises and sell [Oshkosh] 

Feedyard. Since the contract states that “Owner . . . 

agrees to not negotiate with prospective buyers”, I assume 

that your client’s confidence is high that a buyer for the 

full listing price will be found within that time. I am 

certain a sale of that nature would make all sides of this 

equation quite happy.

Huff averred that to the best of his knowledge, this was the 

last communication between the parties before the lawsuit was 

filed in August 2014. GCE’s counsel never communicated to 

Huff that there were any prospective buyers willing to pay the 

full listing price or less than the full listing price and never 

communicated there were any tentative purchase agreements, 

verbal offers, or “any offers on the property whatsoever.”

(g) Oshkosh Heifer Development Documents 

and Purchase Agreement

The certificate of organization for Oshkosh Heifer 

Development reflects that it was formed on August 7, 2014. 

And it was not until December 12 that Oshkosh Heifer 

Development adopted a corporate resolution authorizing Braun 

to execute the purchase agreement, promissory note, and deed 

of trust on its behalf for the purchase of Oshkosh Feedyard.

The purchase agreement was entered into on December 15, 

2014, between Oshkosh Heifer Development as the buyer and 

Oshkosh Feedyard as the seller. The selling price was $2.5 million. The purchase agreement arranged a $600,000 downpayment and the remaining balance to be paid in monthly payments at an interest rate of 6 percent per annum, with a balloon 

payment due on August 2, 2024, if not previously paid off.

In their answers to interrogatories, the defendants stated that 

they did not know what the phrase “early occupancy” referred 

to in a risk of loss provision of the purchase agreement. The 

provision in question provided in full:

Risk of loss is on the Seller until the date and time 

of early occupancy by BUYER. SELLER shall keep the 
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property adequately insured until said time. In the event 

of damage to the property from any source, including 

but not limited to theft, vandalism, hail, wind, fire, rain, 

flood, snow, weather or other Act of God etc that results 

in a 5% or more diminution in value, then the BUYER 

can vacate this contract in its entirety in Buyer’s sole and 

exclusive discretion by providing written notice to Seller. 

SELLER shall have no causes of action nor further remedies against BUYER. BUYER shall keep insurance on 

the property from the date of early occupancy forward 

and assume all risk of loss.

The promissory note was signed on December 15, 2014.

A six-page trust deed was signed on December 12, 2014, 

with Oshkosh Heifer Development as the borrower, Oshkosh 

Feedyard as the beneficiary, and Huff as the trustee. In answers 

to interrogatories by GCE, the defendants stated that they 

did not know why there was language in the trust deed referring to a “deferred purchase money note,” explaining that the 

trust deed was given to secure the promissory note and sums 

described therein. That provision states in full:

PURCHASE MONEY SECURITY: This Trust Deed is 

given to secure payment of a deferred purchase money 

note, by BORROWER to BENEFICIARY to pay the balance of the purchase price of all or a part of the Trust 

Property, and is a continuation of the original lien of the 

seller of said Trust Property. This Deed of Trust shall 

also apply to any future advances made by Beneficiary 

to Borrower.

In their answers to interrogatories, the defendants stated that 

no cattle owned by Oshkosh Heifer Development were placed 

in Oshkosh Feedyard in 2014.

(h) James Korth’s Affidavit

The only evidence submitted by GCE in opposition to 

summary judgment was an affidavit by James Korth, GCE’s 

attorney. Korth averred that while the written discovery in 

the case was largely complete, there were still some matters 
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of written discovery to be completed, which he listed as 

(1) the receipt of documents from Settje Agri Services & 

Engineering and (2) a recently arisen dispute between the 

parties subject to a motion to compel by GCE set for hearing 

on March 4, 2019.

Korth averred, further, that the depositions noticed for May 

28 and 29, 2019, were “absolutely essential, especially those 

of the Defendants.” Korth elaborated that through depositions, GCE could explore the activities of and communications between the defendants during the listing contract period 

pertaining to their plans to purchase Oshkosh Feedyard, which 

may reveal material issues pertaining to whether they colluded 

to purchase Oshkosh Feedyard after the listing period had 

elapsed. Korth noted the defendants stated in written interrogatories that they had no knowledge of what the references 

in their purchase agreement to an “early occupancy” date 

were and that they did not know why there was language in 

the trust deed with power of sale referring to a deferred purchase money note—both provisions apparently being suspicious to GCE.

With regard to the delay in taking the depositions, Korth 

averred the matter had been “discussed between counsel in 

August 2017 . . . and then held in abeyance as a result of then 

pending issues regarding written discovery.” Korth attached 

a copy of communication in which, on August 1, 2018, the 

defendants’ counsel wrote to Korth that if review of discovery 

responses did not change GCE’s position, then the defendants 

“would like to get depositions schedule[d] right away,” as 

the defendants “are going to run into some time constraints 

due to the nature of agriculture starting the first and middle 

part of September, and if you want their depositions, it will 

either need to be sometime during August or late October or 

November.” Korth responded on August 17, asking about the 

defendants’ availability during the week of August 27 through 

31, September 4, or the morning of September 5. The defendants’ counsel responded on August 20 that the defendants 
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would be available on September 4 and that counsel would 

like to take the depositions of Bretz and George Clift at that 

time if possible. Korth responded on August 21, “We are now 

looking at the late October or November timeframe for depositions.” Korth explained, “It appears there are some loose 

ends re: pending written discovery requests which make it 

impracticable to take depositions at this point; that, and the 

fact that my wife is due September 6th, which complicates 

matters for me on a personal level.” No further correspondence 

was submitted.

9. Order Denying Continuance and 

Granting Summary Judgment

On April 23, 2019, the court granted the defendants’ motions 

for summary judgment. The court overruled GCE’s objection 

to the motion for summary judgment as premature, noting that 

the case had been pending for over 18 months and had previously been brought in 2014.

The court found no issue of fact that GCE failed to produce a 

ready, willing, and able buyer within the listing period. Further, 

there was no issue of fact that Bretz was aware of the existence 

of Betley and Braun as prospective buyers during the listing 

period. There was no issue of fact that there were no discussions between Jessen and Betley, Braun, and Matzke during 

the listing period regarding an offer to purchase. Discussions 

of such a nature began during the protection period, but the 

property was not “under contract, sold, transferred, exchanged 

or conveyed” before September 15, 2014, as would be required 

to be covered by the protection period. As such, there was no 

genuine issue of material fact under the first cause of action in 

that Jessen and Oshkosh Feedyard did not breach the exclusive 

listing agreement.

Concerning the second cause of action for tortious interference as against Betley, Braun, and Matzke, the court found 

no material issue of fact that Betley, Braun, and Matzke 

lacked any knowledge of the exclusive listing agreement and, 
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furthermore, that GCE, through Bretz, affirmatively encouraged Betley, Braun, and Matzke to engage in negotiations 

directly with Jessen for the sale of Oshkosh Feedyard. And the 

court found no material issue of fact that Jessen and Oshkosh 

Feedyard had not committed an unjustified intentional act of 

interference. It was undisputed that no efforts were made by 

Jessen and Oshkosh Feedyard to “drag the sale out until after 

the expiration of the protection period.”

10. Attorney Fees

The defendants had moved for attorney fees on the ground 

that the claims against them were frivolous. The court found that 

the action was frivolous. The court reasoned that “after years 

of litigation and numerous discovery disputes and resolutions, 

the Plaintiff cannot demonstrate sufficient evidence to survive 

summary judgment.” Further, “it is apparent in the record that 

the Plaintiff’s own agent was aware of the activities it then 

complained of and that he, as the Plaintiff’s agent, consented to 

such activities.” Finally, the court reasoned, “Discovery demonstrated that the contractual and tortious claims being made 

by the Plaintiff were not supported in the evidence and yet the 

Plaintiff persisted in its recovery efforts.”

The court ordered GCE to pay attorney fees to Betley, 

Braun, and Matzke in the amount of $21,774.78 and to Jessen 

and Oshkosh Feedyard in the amount of $25,657.67.

GCE appeals.

III. ASSIGNMENTS OF ERROR

GCE assigns that the district court erred (1) in sustaining the 

motions for summary judgment or, alternatively, in failing to 

sustain GCE’s motion for a continuance of the hearing on summary judgment and (2) in sustaining the defendants’ motions 

for attorney fees.

Jessen and Oshkosh Feedyard cross-appeal, assigning that 

the district court erred by (1) not sustaining their motion to 

disqualify and (2) failing to make the award of attorney fees 

joint and several against GCE’s attorneys.
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IV. STANDARD OF REVIEW

[1] A trial court’s grant or denial of a continuance is within 

the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. 1

[2] On appeal, an appellate court will uphold a lower 

court’s decision allowing or disallowing attorney fees for 

frivolous or bad faith litigation in the absence of an abuse of 

discretion. 2

[3] Mootness is a justiciability question that an appellate 

court determines as a matter of law when it does not involve a 

factual dispute. 3

V. ANALYSIS

GCE argues that we should reverse the order of summary 

judgment because the district court held the summary judgment 

hearing before GCE had conducted depositions. Alternatively, 

GCE asserts that the district court abused its discretion in finding GCE’s action frivolous and awarding attorney fees and 

costs against it. Jessen and Oshkosh Feedyard cross-appeal, 

asserting that the district court erred by denying their motion 

to disqualify GCE’s counsel and by failing to order GCE’s 

counsel jointly and severally liable for the attorney fees and 

costs awarded.

1. Failure to Order Continuance 

to Take Depositions

[4] Generally, the control of discovery is a matter for judicial discretion. 4 A trial court’s grant or denial of a continuance is likewise within the discretion of the trial court, whose 

1 See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018). See, 

also, Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014); Fo Ge 

Investments v. First American Title, 27 Neb. App. 671, 935 N.W.2d 245 

(2019).

2 Korth v. Luther, 304 Neb. 450, 935 N.W.2d 220 (2019).

3 See State v. York, 278 Neb. 306, 770 N.W.2d 614 (2009).

4 Lombardo v. Sedlacek, supra note 1.
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ruling will not be disturbed on appeal in the absence of an 

abuse of discretion. 5

[5] Neb. Rev. Stat. § 25-1335 (Reissue 2016) provides a 

safeguard against an improvident or premature grant of summary judgment. 6 It provides:

Should it appear from the affidavits of a party opposing 

the motion that he cannot for reasons stated present by 

affidavit facts essential to justify his opposition, the court 

may refuse the application for judgment or may order a 

continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such 

other order as is just.

[6] As a prerequisite for a continuance, additional time, or 

other relief, a party is required to submit an affidavit stating 

a reasonable excuse or good cause for the party’s inability to 

oppose a summary judgment motion. 7 The affidavit of good 

cause should specifically identify the relevant information 

that will be obtained with additional time and indicate some 

basis for the conclusion that the sought information actually exists. 8

[7] In ruling on a request for a continuance or additional 

time in which to respond to a motion for summary judgment, 

a court may consider the complexity of the lawsuit, the complications encountered in litigation, and the availability of 

evidence justifying opposition to the motion. 9 The court may 

also consider whether the party has been dilatory in completing 

discovery and preparing for trial. 10

5 Lombardo v. Sedlacek, supra note 1. See, also, Gaytan v. Wal-Mart, supra

note 1; Fo Ge Investments v. First American Title, supra note 1.

6 Ronald J. Palagi, P.C. v. Prospect Funding Holdings, 302 Neb. 769, 925 

N.W.2d 344 (2019); Lombardo v. Sedlacek, supra note 1.

7 See Ronald J. Palagi, P.C. v. Prospect Funding Holdings, supra note 6.

8 See, id.; Lombardo v. Sedlacek, supra note 1.

9 Gaytan v. Wal-Mart, supra note 1; Fo Ge Investments v. First American 

Title, supra note 1.

10 Gaytan v. Wal-Mart, supra note 1.
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The district court did not abuse its discretion in implicitly 

determining that GCE had been dilatory in failing to conduct 

depositions sooner. Despite the fact that this was the second action making the same allegations against Jessen and 

Oshkosh Feedyard as to an alleged breach of the exclusive 

listing agreement, January 28, 2019, was apparently the first 

time GCE took decisive steps to depose Jessen in either action. 

GCE took steps to depose the other defendants and nonparty 

Settje Agri Services & Engineering for the first time on that 

same date.

At that point, it had been approximately 18 months since 

the inception of this second lawsuit. Eight months after filing this action, GCE had been unable to identify in response 

to Jessen and Oshkosh Feedyard’s requests for production of 

documents any document whatsoever that GCE intended to 

offer as evidence in support of its causes of action at trial or 

in a summary judgment hearing. This was after the first action 

had continued for almost 3 years before the court dismissed it 

for lack of prosecution. We have held that the time that a similar, prior case was pending without a request for depositions is 

relevant to a district court’s determination of whether the party 

opposing summary judgment has had an adequate opportunity 

for discovery. 11

The only explanation for good cause stated in GCE’s motion 

was to blame the delay on the defendants’ failure to respond to 

all written discovery requests, for which GCE had “been forced 

to file five motions to compel.” In the affidavit submitted by 

Korth on GCE’s behalf, he outlined correspondence which 

showed the defendants made themselves available for depositions in August, October, or November 2018. But that correspondence also demonstrated that GCE put the depositions 

off until October or November due in part to “pending written 

discovery requests” that GCE thought made “it impracticable 

to take depositions” earlier. And the depositions never took 

place in October or November.

11 See id.
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While it is clear that written discovery was not completed 

to GCE’s satisfaction before the defendants’ motions for summary judgment, GCE did not explain why it could not effectively conduct its depositions without every piece of written 

discovery it wished to have. Further, not every motion by GCE 

to compel was granted. The district court was in the best position to determine to what extent the defendants were being 

unreasonable in their discovery responses and to what extent 

the lack of any written discovery interfered with GCE’s ability 

to conduct depositions. We find no abuse of discretion in the 

district court’s judgment.

Having determined that the district court did not prematurely 

address the defendants’ motions for summary judgment, we 

turn to the merits of GCE’s case and whether GCE’s action 

was frivolous.

2. GCE’s Causes of Action

[8] GCE’s argument relating to the court’s alleged error in 

ordering summary judgment rests entirely on its claim that 

the court held the summary judgment hearing prematurely 

before GCE had conducted depositions, a claim which we 

have already explained lacks merit. The only statement in the 

argument section in GCE’s brief asserting that there was a 

material issue of fact presented at the summary judgment hearing was GCE’s conclusory statement that “it is fairly evident 

that material factual issues remained at the time the Appellees 

filed their respective motions for summary judgment.” 12 To be 

considered by an appellate court, an alleged error must be both 

specifically assigned and specifically argued in the brief of the 

party asserting the error. 13 The conclusory statement that it is 

“fairly evident” there were material issues of fact was insufficient to present a specific argument. 14 GCE did not support 

12 Brief for appellant at 20.

13 Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264 

(2014).

14 Brief for appellant at 20.
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this conclusion by directing this court in the argument section of its brief to any material fact in the record in dispute. 15

Nevertheless, in order to address GCE’s assignment of error 

regarding the court’s award of attorney fees for maintaining a 

frivolous action, we must examine the evidence in light of the 

law governing GCE’s claims.

(a) Procuring Ready, Willing, and Able 

Buyer During Listing Period

[9] As the district court noted, there was never any dispute 

that GCE was not entitled to a commission under the exclusive 

listing agreement for performing the condition of producing 

a ready, willing, and able buyer during the listing period. A 

broker employed for a definite time to effect a sale of property 

must perform whatever obligations the contract imposes upon 

the broker within the time limited. 16 If the broker does thus 

perform such obligations, the broker is entitled to the commission. 17 If the broker fails to perform within the time, the broker 

cannot recover the commission. 18

[10] The exclusive listing agreement between GCE and 

Oshkosh Feedyard referred to the commission’s being earned 

and payable either after a sale within the periods specified; 

after GCE produced a ready, willing, and able buyer agreeable 

to Oshkosh Feedyard’s price and terms as stated in the listing 

agreement; or after signing by Oshkosh Feedyard and a buyer 

of a letter, memorandum, or contract that contained agreements 

to convey the property. Ordinarily, a real estate broker who, 

for a commission, undertakes to sell land on certain terms and 

within a specified period is not entitled to compensation for his 

or her services unless he or she produces a purchaser within 

15 See Hauptman, O’Brien v. Turco, 277 Neb. 604, 764 N.W.2d 393 (2009).

16 Annot., 26 A.L.R. 784 (1923).

17 Id.

18 Id.
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the time limit who is ready, willing, and able to buy upon 

the terms prescribed. 19 When a broker is engaged by an owner 

of property to find a purchaser, the broker earns the commission when (1) the broker produces a purchaser ready, willing, 

and able to buy on the terms fixed by the owner; (2) the purchaser enters into a binding contract with the owner to do so; 

and (3) the purchaser completes the transaction by closing the 

title in accordance with the provisions of the contract. 20

[11,12] However, so long as the contract does not otherwise 

provide, generally the final act of closing a sale within the listing period is not a condition precedent to a broker’s right to a 

commission—if the broker has secured a binding contract of 

sale and is not at fault for the fact that the contract is never 

carried out. 21 The right to compensation based on the broker’s 

production of a purchaser ready, willing, and able to buy upon 

terms specified by the principal or satisfactory to him or her 

is not impaired by the subsequent inability or unwillingness of 

the owner to consummate the sale on the terms prescribed. 22

On the other hand, in a listing agreement contemplating the 

negotiation of terms, a commission is not earned by the broker until an agreement upon the terms is reached between the 

buyer and seller. 23

Thus, we have held that where a real estate broker obtains 

a purchaser for real estate while his brokerage contract is 

in full force and effect and no sale is made during the existence of the agreement, but the sale is made thereafter by the 

owner to the person produced by the agent and on “substantially the same terms” previously offered through the agent’s 

efforts, the broker is entitled to a commission for making the 

19 McCully, Inc. v. Baccaro Ranch, 284 Neb. 160, 816 N.W.2d 728 (2012).

20 Dworak v. Michals, 211 Neb. 716, 320 N.W.2d 485 (1982).

21 See 12 C.J.S. Brokers § 225 (2004).

22 See Wisnieski v. Coufal, 188 Neb. 200, 195 N.W.2d 750 (1972).

23 See 12 C.J.S., supra note 21.
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sale. 24 Conversely, we have held that a broker is not entitled 

to a commission where the broker obtains a purchaser for real 

estate but no sale is made during the existence of the agreement and the sale is later made by the owner to the same purchaser but on terms that are not substantially the same offered 

through the agent’s efforts. 25

In McCully, Inc. v. Baccaro Ranch,

 26 we accordingly held 

that the commission was due despite the fact that the actual 

closing took place after both the listing period and protection 

period, because the agent had found a buyer who had satisfied 

the condition of the listing agreement as being ready, willing, 

and able to purchase the property at terms acceptable to the 

seller within the listing period. The negotiations had been completed within the listing period, and the buyer testified he was 

ready to exchange based on the proposal signed during that 

listing period. The purchase agreement signed after the listing 

and protection periods was the exact same proposal signed by 

the buyer within the listing period, but with the proposal date 

altered to a date closer to the actual closing. 27

In contrast, in Coldwell Banker Town & Country Realty v. 

Johnson,

 28 we held that the agent was not entitled to a commission when the buyers and sellers entered into direct negotiations mere days after the expiration of the listing agreement 

and eventually executed the purchase. We explained that 

it did not matter that the buyers, within the listing period, 

had negotiated with the agent for the purchase of the same 

property and had made an offer on the property, because the 

sellers did not accept the offer then made. The purchase was 

24 See Byron Reed Co., Inc. v. Majers Market Research Co., Inc., 201 Neb. 

67, 71, 266 N.W.2d 213, 215 (1978).

25 Huston Co. v. Mooney, 190 Neb. 242, 207 N.W.2d 525 (1973).

26 McCully, Inc., v. Baccaro Ranch, supra note 19.

27 See id. See, also, Huston Co. v. Mooney, supra note 25.

28 Coldwell Banker Town & Country Realty v. Johnson, 249 Neb. 523, 544 

N.W.2d 360 (1996).
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later effectuated under terms different from the terms of the 

buyers’ first offer, during the listing period. In other words, 

we explained, the terms under which the sale took place were 

reached through the sellers’, not the agent’s, efforts. 29

GCE did not allege it had obtained within the listing period 

a buyer who was ready, willing, and able to purchase Oshkosh 

Feedyard either at the listing price or at a price and on terms 

agreeable at that time to its owner. The 12-month listing period 

expired on July 15, 2014. There was no issue of fact that in 

May 2014, Betley, Braun, and Matzke were just starting to 

explore numerous feedyard options and stated to Jessen that 

they were in no position to make any offers. They were still 

considering several different feedyards in June 2014. Unlike 

the buyers in Coldwell Banker Town & Country Realty, Betley, 

Braun, and Matzke never even made an offer during the listing 

period—let alone an offer at the listing price or at a different 

price and on terms Oshkosh Feedyard was willing to accept. 

Thus, this case does not present a question of whether the 

agreement eventually reached was substantially the same as 

that procured by the broker.

[13] When the broker has failed to perform the condition 

upon which he or she was to be paid, there is an end to the contract; all contractual obligations of the owner toward the broker 

are terminated and the parties stand as if a contract had never 

been made. 30 The market for the sale of the owner’s property 

is not circumscribed by the fact that some or all available purchasers have theretofore been approached by the broker. 31

(b) Protection, Extension, or Safety Periods

While the exclusive listing agreement, like many listing 

agreements, had a protection period clause, GCE also never 

asserted that it was owed a commission because, pursuant to 

29 See id. See, also, Huston Co. v. Mooney, supra note 25.

30 Loxley v. Studebacker, 75 N.J.L. 599, 68 A. 98 (1907).

31 See id.
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the terms of the protection period clause of the agreement, 

Oshkosh Feedyard was under contract, sold, transferred, 

exchanged, or conveyed during the protection period to any 

person to whom GCE submitted the property.

[14,15] Clauses in exclusive listing agreements setting forth 

a protection, extension, or safety period after the listing period 

are strictly construed as setting the limits of the time period 

in which a sale must take place for a commission to be recoverable. 32 These clauses are meant to protect the broker from 

losing a commission earned during the listing period due to 

evasive conduct of the buyer and seller. 33

The purpose of the protection period clause is to protect 

the broker even though the broker is not technically the 

procuring cause for the sale, but whose activities alerted the 

prospective buyer to the availability of the property for sale 

and the seller was able to conclude the sale to the buyer that 

he or she would not have been able to do if the broker’s 

efforts had not alerted the buyer. 34 They are intended to protect the broker from a defrauding vendor who waits until just 

after the expiration of the initial listing period before selling 

to a purchaser with whom the broker has previously conducted negotiations. 35

Thus, a claim that a seller in bad faith during the protection period delayed a sale until after expiration of the protection period is somewhat different from a claim that a seller in 

bad faith during a listing period purposefully delayed a sale 

until after the listing period. The protection period is precisely 

32 See Kenney v. Clark, 120 Ga. App. 16, 169 S.E.2d 357 (1969); Thayer v. 

Damiano, 9 Wash. App. 207, 511 P.2d 84 (1973).

33 See 2 Harry D. Miller & Marvin B. Starr, California Real Estate § 5:51 

(4th ed. 2015). See, also, e.g., Harkey v. Gahagan, 338 So. 2d 133 (La. 

App. 1976).

34 See Miller & Starr, supra note 33. See, also, e.g., Mellos v. Silverman, 367 

So. 2d 1369 (Ala. 1979).

35 D. Barlow Burke, Jr., Law of Real Estate Brokers § 4.03 (4th ed. 2020).
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that—a protection from bad faith during the listing period 

without having to prove such tortious intent. And the seller’s 

obligations during such protection period are accordingly more 

limited than those present during the listing period. As one 

court noted, if a broker wishes to retain the right to earn a 

commission on sales for which it was the procuring cause even 

though completed after the expiration of the extension period, 

the broker, as drafter of the agreement, can use the appropriate 

language to effectuate that intent in the agreement. 36

It was undisputed that no contract, sale, transfer, exchange, 

or conveyance of Oshkosh Feedyard occurred during the protection period to anyone.

(c) Duty to Refer and Refrain 

From Negotiating

Nevertheless, GCE asserts that a sale would have occurred 

during the protection period but for the defendants’ allegedly 

tortious conduct. In its first cause of action, GCE claimed 

Jessen and Oshkosh Feedyard breached the provision of the 

last sentence of the protection period clause, which states: 

“Owner agrees to refer all prospective buyers to Broker and 

agrees not to negotiate with such prospective buyers.” In 

its operative complaint, GCE asserted that it was owed the 

4.5-percent commission because Jessen and Oshkosh Feedyard 

breached this promise of the exclusive listing agreement, 

thereby depriving GCE of its “opportunity to contact and negotiate with prospective buyer(s), known to Defendants JESSEN 

and [Oshkosh Feedyard].”

But, as the district court pointed out, it was undisputed that 

GCE knew of Betley and Braun and in fact encouraged them 

to negotiate directly with Jessen. And GCE, through its agent 

Bretz, was obviously aware of this fact before the present 

36 See Leadership Real Estate, Inc. v. Harper, 271 N.J. Super. 152, 638 A.2d 

173 (1993).
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and the previous legal actions were commenced. Bretz had 

communicated to Braun, during the 12-month listing period, 

“Please continue forward on that project as long as it is viable 

to you. The owner and I will deal with the listing agreement.” 

In a telephone conversation with Braun around the same 

time, Bretz told Braun that he, Betley, and Matzke “should 

continue [their] discussions about the sale of . . . Oshkosh 

Feedyard with Jessen, and that Bretz and Jessen would work 

things out.”

[16] A written contract may be waived in whole or in part, 

either directly or inferentially, and the waiver may be proved 

by express declarations manifesting the intent not to claim the 

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

belief that it was the intention to waive. 37 It is clear that GCE 

waived the obligation upon which it based its first cause of 

action against Jessen and Oshkosh Feedyard. Bretz, on behalf 

of GCE, apparently did so in the hope that direct communications with Jessen would lead to Betley’s and Braun’s becoming 

ready, willing, and able buyers on terms agreeable to Jessen 

before expiration of the protection period, thereby allowing 

GCE to claim a commission even though Jessen, rather than 

Bretz, would have been the procuring cause. When Jessen 

failed to reach an agreement within the protection period with 

Betley, Braun, and Matzke as to the price and terms of a sale 

of Oshkosh Feedyard, GCE sued Jessen and Oshkosh Feedyard 

for breaching the very provision it had waived in hopes of 

gaining an advantage.

[17-19] We also note that even if not waived, any claim of a 

breach of Oshkosh Feedyard’s obligations under the protection 

period clause is subject to the general requirement that a plaintiff in a breach of contract action must prove that the breach 

was the proximate cause of the damages claimed. It is a basic 

concept that in any damage action for breach of contract, the 

claimant must prove that the breach of contract complained of 

37 Pearce v. ELIC Corp., 213 Neb. 193, 329 N.W.2d 74 (1982).
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was the proximate cause of the alleged damages. 38 There must 

be a causal relationship between the damages asserted and 

the breach relied upon. 39 Proof which leaves this issue in the 

realm of speculation and conjecture is insufficient to support 

a judgment. 40

The failure to refer buyers to GCE could not be the proximate cause of any damages if GCE was actually aware of the 

buyers during the listing period and had direct contact with 

at least two of them. Moreover, after approximately 41⁄2 years 

of litigation in two actions, GCE still failed to produce any 

evidence supporting a reasonable inference that Jessen’s direct 

negotiations with Betley, Braun, and Matzke were the proximate cause of GCE’s failure to produce a buyer who was ready, 

willing, and able to purchase Oshkosh Feedyard within the 

listing period for the listing price or at another price and upon 

terms agreeable to Oshkosh Feedyard or the proximate cause of 

Oshkosh Feedyard’s failure within 2 months of the expiration 

of the listing agreement to be under contract, sold, transferred, 

or conveyed to a person submitted by GCE per the terms of the 

protection period clause.

All the defendants averred that they did not reach an agreement as to the terms of the purchase of Oshkosh Feedyard 

until December 2014. In fact, even viewing the evidence in 

the light most favorable to GCE, it appears that at no point 

during the 12-month listing period or the 2-month protection 

period following did the parties come close to reaching an 

accord as to the price and terms of a purchase. Only in August 

2014 did Jessen, in his individual capacity, reach an agreement 

with Betley, Braun, and Matzke to join together in forming a 

38 Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465 (1993). 

See, also, e.g., Sack Bros. v. Tri-Valley Co-op, 260 Neb. 312, 616 N.W.2d 

786 (2000).

39 Id.

40 Id. See, also, e.g., Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 

(2011).
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limited liability corporation, Oshkosh Heifer Development, 

for purposes of negotiating an offer. All evidence presented 

at the summary judgment hearing was that the formation of 

Oshkosh Heifer Development was merely the first step in 

reaching an accord as to the terms of the conveyance that did 

not occur until December.

While it is true that Jessen was both a party to Oshkosh 

Heifer Development and the president of Oshkosh Feedyard, it 

would be mere speculation to infer that because of Jessen’s dual 

roles, he had already reached an accord on behalf of Oshkosh 

Feedyard with Oshkosh Heifer Development and fabricated an 

arbitrary 3-month delay in selling Oshkosh Feedyard. As we 

said in The Nebraskans, Inc. v. Homan,

 41 an agent’s speculation that something between the buyers and sellers took place 

within the protection period does not create a material issue 

of fact. 42

(d) Conspiracy to Tortiously Interfere 

With Business Relationship

In its second cause of action, GCE alleged the defendants 

engaged in a conspiracy to tortiously interfere with GCE’s 

contract, business relationship, or expectation. Specifically, 

GCE alleged that Betley, Braun, and Matzke “conspired with 

[Jessen] to arrange terms of a sale which deprived [it] of 

the Brokerage Fee owed . . . under the Exclusive Listing 

Agreement.” Under this theory, GCE again alleged that while 

it did not earn a commission under the exclusive listing agreement by producing a ready, willing, and able buyer within the 

listing period (or a sale within the protection period), this failure was proximately caused by the alleged conspiracy between 

the defendants.

41 The Nebraskans, Inc. v. Homan, 206 Neb. 749, 294 N.W.2d 879 (1980).

42 See, Lange Indus. v. Hallam Grain Co., supra note 38; Sack Bros. v. TriValley Co-op, supra note 38; Bedore v. Ranch Oil Co., supra note 40.
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[20-24] A civil conspiracy is a combination of two or 

more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or 

oppressive means. 43 A claim of civil conspiracy requires the 

plaintiff to establish that the defendants had an expressed or 

implied agreement to commit an unlawful or oppressive act 

that constitutes a tort against the plaintiff. 44 The gist of a civil 

conspiracy action is not the conspiracy charged, but the damages the plaintiff claims to have suffered due to the wrongful 

acts of the defendants. 45 Furthermore, a civil conspiracy is 

actionable only if the alleged conspirators actually committed 

some underlying misconduct. 46 That is, a conspiracy is not a 

separate and independent tort in itself; rather, it depends upon 

the existence of an underlying tort. 47 So without such underlying tort, there can be no cause of action for a conspiracy to 

commit the tort. 48

[25,26] To succeed on a claim for tortious interference with 

a business relationship or expectancy, a plaintiff must prove 

(1) the existence of a valid business relationship or expectancy, 

(2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of interference on the 

part of the interferer, (4) proof that the interference caused the 

harm sustained, and (5) damage to the party whose relationship 

or expectancy was disrupted. 49 One of the basic elements of 

tortious interference with a business relationship requires an 

43 deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).

44 Id.

45 Id.

46 See id.

47 Id.

48 Id.

49 Denali Real Estate v. Denali Custom Builders, 302 Neb. 984, 926 N.W.2d 

610 (2019).
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intentional act that induces or causes a breach or termination 

of the relationship or expectancy. 50

[27] Though never explicitly pled or argued, the apparent underlying breach at issue (besides the provision of the 

protection period already discussed) is that of the implied 

covenant of good faith. Real estate broker agreements, like 

other contracts, contain an implied covenant of good faith 

pursuant to which the seller impliedly covenants he or she will 

do nothing that will have the effect of destroying or injuring 

the right of the broker to earn a commission. 51 In Dworak v. 

Michals,

 52 for example, we held that the real estate agent was 

entitled to a commission for having procured buyers ready, 

able, and willing to buy on the seller’s terms but who backed 

out of the agreement when they learned of misrepresentations 

by the seller. Similarly, in Dunn v. Snell,

 53 we held that while 

the principal had a right under the agreement to revoke the 

agency at any time before a sale, where the revocation was in 

bad faith, it did not defeat a broker’s right to compensation 

for the postrevocation completion of a sale on the same terms 

originally proposed by the agent before revocation but rejected 

by the buyer.

All the defendants averred that they never had any conversations with Jessen about delaying the purchase or trying 

to deprive GCE of a commission. They further averred that 

they lacked any intent to delay reaching an agreement. Betley, 

Braun, and Matzke were not even aware of the exclusive 

listing agreement until late June 2014, and, as discussed, it 

was undisputed that they negotiated with Jessen with Bretz’ 

encouragement. There was simply no evidence that could support a reasonable inference that the defendants all agreed to 

50 Id.

51 Kislak Co., Inc. v. Geldzahler, 210 N.J. Super. 255, 509 A.2d 320 (1985).

52 Dworak v. Michals, supra note 20.

53 Dunn v. Snell, 124 Neb. 560, 247 N.W. 428 (1933). See, also, Maddox v. 

Harding, 91 Neb. 292, 135 N.W. 1019 (1912).
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intentionally interfere with GCE’s business relationship with 

Oshkosh Feedyard or otherwise assist in any bad faith act.

Nor, as discussed with regard to the first cause of action, 

was there any evidence from which GCE could establish 

proximate causation of any damages deriving from the alleged 

conspiracy. In other words, there was no evidence from which 

it could reasonably be inferred that but for the alleged conspiracy to deprive GCE of a commission, Betley, Braun, and 

Matzke would have either made an offer at the listing price or 

reached an agreement acceptable to Oshkosh Feedyard on the 

price and terms of a purchase, within either the listing period 

or the protection period.

(e) Conclusion as to Frivolous 

Nature of Suit

[28] On appeal, we will uphold a lower court’s decision 

allowing or disallowing attorney fees for frivolous or bad faith 

litigation in the absence of an abuse of discretion. 54 A judicial 

abuse of discretion exists when the reasons or rulings of a trial 

judge are clearly untenable, unfairly depriving a litigant of a 

substantial right and denying just results in matters submitted 

for disposition. 55

Neb. Rev. Stat. § 25-824(2) (Reissue 2016) provides that the 

court shall award reasonable attorney fees and costs against 

any attorney or party who has brought or defended a civil 

action that alleged a claim or defense which a court determines 

is frivolous or made in bad faith. Section 25-824(4) provides 

that the court shall assess attorney fees and costs if, upon the 

motion of any party or the court itself, the court finds that an 

attorney or party brought or defended an action or any part 

of an action that was frivolous or that the action or any part 

of the action was interposed solely for delay or harassment. 

Section 25-824(5) clarifies that no attorney fees or costs shall 

54 Korth v. Luther, supra note 2.

55 Id.
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be assessed if a claim or defense was asserted by an attorney 

or party in a good faith attempt to establish a new theory of 

law in this state or if, after filing suit, a voluntary dismissal is 

filed as to any claim or action within a reasonable time after 

the attorney or party filing the dismissal knew or reasonably 

should have known that he or she would not prevail on such 

claim or action.

[29-31] Frivolous for the purposes of § 25-824 is defined 

as being a legal position wholly without merit, that is, without rational argument based on law and evidence to support 

a litigant’s position in the lawsuit. 56 It connotes an improper 

motive or legal position so wholly without merit as to be 

ridiculous. 57 The determination of whether a particular claim 

or defense is frivolous must depend upon the facts of the particular case. 58

It was not clearly untenable for the district court to determine that GCE’s pursuit of the first cause of action stated 

in its amended complaint was frivolous. As the court noted, 

GCE knew it had waived the provision of the protection 

period prohibiting direct negotiations with Oshkosh Feedyard 

before bringing this action and the 2014 action against Jessen 

and Oshkosh Feedyard. GCE’s legal position that Jessen and 

Oshkosh Feedyard had breached the contract by failing to 

refer purchasers whom Bretz had actual knowledge of and 

by negotiating directly with those purchasers, when Bretz 

encouraged them to do so, was so wholly without merit as to 

be ridiculous.

But GCE’s second cause of action, for conspiracy to interfere with business expectations, was not frivolous, and the 

district court abused its discretion in concluding otherwise. 

Unlike GCE’s claim for breach of contract, for which it was 

56 Id.

57 Id.

58 See Shanks v. Johnson Abstract & Title, 225 Neb. 649, 407 N.W.2d 743 

(1987).
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aware of facts making the claim wholly without merit from its 

inception, GCE’s claim for conspiracy to interfere with business expectations was cognizable and brought with a reasonable belief that discovery would support its allegations.

We recognize that § 25-824(5) contemplates that attorney 

fees may be assessed when a party persists in asserting a 

claim after it knows or reasonably should know it would not 

prevail on the claim. But while we find that the district court 

did not abuse its discretion in denying GCE’s motion for a 

continuance in order to take depositions, it does not follow 

that GCE’s continuing pursuit of its second cause of action 

was unreasonable. Any doubt about whether a legal position 

is frivolous or taken in bad faith should be resolved in favor 

of the one whose legal position is in question. 59 The record 

supports GCE’s contention that it persisted in asserting the 

conspiracy claim reasonably believing it was entitled to a 

continuance of the summary judgment hearing in order to take 

depositions that it reasonably believed could reveal evidence 

to support its second cause of action. Accordingly, the district 

court abused its discretion by concluding that GCE pursued 

its second cause of action after it reasonably should have 

known it would not prevail and in awarding attorney fees to 

Betley, Braun, Matzke, and Oshkosh Heifer Development on 

that basis.

To the extent that the district court awarded attorney fees 

to all the defendants based on their defense of both causes of 

action since the inception of this lawsuit in 2017, it abused 

its discretion. Attorney fees for Jessen and Oshkosh Feedyard 

related to the first cause of action should be limited to the fees 

incurred in defending that cause of action. No attorney fees 

should be awarded in relation to the second cause of action.

Thus, the court erred in awarding any attorney fees to Betley, 

Braun, Matzke, and Oshkosh Heifer Development—defendants 

solely to the second cause of action. We reverse the order of 

59 TFF, Inc. v. SID No. 59, 280 Neb. 767, 790 N.W.2d 427 (2010).
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attorney fees and remand the cause with directions for the court 

to redetermine the amount of attorney fees to be awarded to 

Jessen and Oshkosh Feedyard in relation to their defense of the 

first cause of action.

3. Cross-Appeal

On cross-appeal, Jessen and Oshkosh Feedyard assign 

and argue that the district court erred by not sustaining 

their motion to disqualify GCE’s counsel and by failing to 

make the award of attorney fees joint and several against 

GCE’s attorneys.

[32,33] We find that Jessen and Oshkosh Feedyard’s assignment of error regarding the denial of their motion to disqualify 

GCE’s counsel is moot. Mootness refers to events occurring 

after the filing of a suit, which eradicate the requisite personal 

interest in the resolution of the dispute that existed at the 

beginning of the litigation. 60 An appellate court is not obligated 

to engage in an analysis that is not necessary to adjudicate the 

case and controversy before it. 61 Jessen and Oshkosh Feedyard 

prevailed in their summary judgment motion against GCE 

despite the alleged conflict of interest of GCE’s counsel. They 

take pains to point out in appealing the denial of their motion 

to disqualify GCE’s counsel that they do not wish to relitigate 

this underlying result. They simply argue that the same counsel 

should be disqualified for similar reasons in the action against 

Jessen for self-dealing. Jessen, sued in his individual capacity 

in the self-dealing action, is free to move to disqualify plaintiffs’ counsel in that case if he believes he has standing and 

grounds for such a motion.

[34] We find no merit to Jessen and Oshkosh Feedyard’s 

assertion that the district court abused its discretion by failing 

to order that GCE’s attorneys have joint and several liability 

with GCE for the award of attorney fees pursuant to § 25-824. 

60 Bramble v. Bramble, 303 Neb. 380, 929 N.W.2d 484 (2019).

61 Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).
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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

GEORGE CLIFT ENTERS. v. OSHKOSH FEEDYARD CORP.

Cite as 306 Neb. 775

Under § 25-824, “[w]hen a court determines reasonable attorney’s fees or costs should be assessed, it shall allocate the 

payment of such fees or costs among the offending attorneys 

and parties as it determines most just and may charge such 

amount or portion thereof to any offending attorney or party.” 

Allocation of amounts due between offending parties and 

attorneys is “‘part and parcel’” of the determination of the 

amount of the award and is reviewed for an abuse of discretion. 62 GCE was clearly the driving force of its 5-year fruitless 

pursuit of a commission for the sale of Oshkosh Feedyard. 

Further, the defendants never presented an argument to the 

district court as to why GCE’s attorneys should be held jointly 

and severally responsible for GCE’s continuing pursuit of the 

frivolous action. Under these facts, the district court’s judgment assessing costs and fees solely against GCE was not 

clearly untenable.

VI. CONCLUSION

For the foregoing reasons, we affirm the order of the district court granting summary judgment. We reverse the district 

court’s award of attorney fees and remand the cause with directions to reassess the amount of the award of attorney fees to 

Jessen and Oshkosh Feedyard in accordance with this opinion.

Affirmed in part, and in part reversed 

and remanded with directions.

62 See Cedars Corp. v. Sun Valley Dev. Co., 253 Neb. 999, 1006, 573 N.W.2d 

467, 472 (1998).