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Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

ACKLIE v. GREATER OMAHA PACKING CO.

Cite as 306 Neb. 108

Allen D. Acklie, appellant, v. 

Greater Omaha Packing Co., Inc., 

a Nebraska corporation, 

appellee.

___ N.W.2d ___

Filed June 12, 2020. No. S-18-1128.

1. Contracts: Appeal and Error. The construction of a contract is a matter of law, in connection with which an appellate court has an obligation 

to reach an independent, correct conclusion irrespective of the determinations made by the court below.

2. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

3. Contracts. In interpreting a contract, a court must first determine, as a 

matter of law, whether the contract is ambiguous.

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

its terms.

5. ____. A contract is ambiguous when a word, phrase, or provision in the 

contract has, or is susceptible of, at least two reasonable but conflicting 

interpretations or meanings.

6. ____. The determination of whether a contract is ambiguous is to be 

made on an objective basis, not by the subjective contentions of the parties suggesting opposing meanings of the disputed language.

7. ____. A contract must receive a reasonable construction and must be 

construed as a whole, and if possible, effect must be given to every part 

of the contract.

8. Contracts: Proof. A party seeking to enforce a contract has the burden 

of establishing the existence of a valid, legally enforceable contract.

9. Contracts. To create a contract, there must be both an offer and an 

acceptance; there must also be a meeting of the minds or a binding 

mutual understanding between the parties to the contract.

Nebraska Supreme Court Online Library

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

08/07/2020 08:08 AM CDT
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10. ____. It is a fundamental rule that in order to be binding, an agreement 

must be definite and certain as to the terms and requirements. It must 

identify the subject matter and spell out the essential commitments and 

agreements with respect thereto.

11. ____. Generally, mutuality of obligation is an essential element of every 

enforceable contract and consists in the obligation on each party to do, 

or permit something to be done, in consideration of the act or promise 

of the other. Mutuality is absent when only one of the contracting parties 

is bound to perform, and the rights of the parties exist at the option of 

one only.

12. ____. An agreement which depends upon the wish, will, or pleasure 

of one of the parties is illusory and does not constitute an enforceable promise.

Appeal from the District Court for Douglas County: Leigh 

Ann Retelsdorf, Judge. Affirmed.

Ari D. Riekes and Steven J. Riekes, of Marks, Clare & 

Richards, L.L.C., for appellant.

Michael F. Coyle, Robert W. Futhey, and Brian J. Fahey, of 

Fraser Stryker, P.C., L.L.O., for appellee.

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

Papik, and Freudenberg, JJ.

Funke, J.

Allen D. Acklie brought this breach of contract action 

against Greater Omaha Packing Co., Inc. (Greater Omaha). 

The matter was tried, and the jury returned a verdict in favor 

of Greater Omaha. Acklie appeals, arguing that errors by the 

district court necessitate a new trial. Because we determine 

that Acklie’s action is based on an unenforceable contract, we 

affirm the judgment.

BACKGROUND

Acklie began working for Greater Omaha as a corporate 

controller in 1986. Acklie was part of Greater Omaha’s senior 

management team and was responsible for supervising the corporation’s financial accounts and managing office staff.
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Cite as 306 Neb. 108

In 1989, the parties purported to enter into a deferred compensation agreement (the agreement). The agreement provides 

that in addition to a monthly salary, the company shall pay 

Acklie deferred compensation. The agreement further provides that Greater Omaha would establish a general ledger 

account and that the account would be funded at the discretion of Greater Omaha’s board of directors. The agreement 

does not contemplate Acklie’s contributing any amount of his 

salary to the deferred compensation account. Greater Omaha 

entered into similar deferred compensation agreements with 

other members of the senior management team.

In 1994, Greater Omaha terminated Acklie’s employment, 

and in 2006, Acklie turned 60 years old. In 2011, Acklie 

demanded payment from Greater Omaha under the terms of 

the agreement. He contended that his right to deferred compensation vested upon his attaining age 60 and that payment 

became due on the first day of the first month following his 

attaining age 61. The agreement’s vesting provision, paragraph 

6, provides:

The Employee’s Deferred Compensation Account shall 

be one hundred percent (100%) vested upon and after 

the earlier of his completing ten (10) consecutive years 

of service commencing the date first above written or his 

attaining age Sixty (60), so long as he does not violate 

[the agreement’s covenant not to compete provision], or 

if he terminates as a result of death.

Greater Omaha refused payment. As a result, in May 2012, 

Acklie filed this action against Greater Omaha in the district court for Douglas County, asserting claims of breach of 

contract and violation of the Nebraska Wage Payment and 

Collection Act, see Neb. Rev. Stat. § 48-1228 et seq. (Reissue 

2010, Cum. Supp. 2018 & Supp. 2019). Acklie alleged that 

Greater Omaha breached the agreement by failing to pay him 

the amounts due to him. Acklie alleged that at the time of his 

firing in June 1994, the value of his interest in the account 

was $18,574.92.
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ACKLIE v. GREATER OMAHA PACKING CO.

Cite as 306 Neb. 108

Greater Omaha moved to dismiss the complaint, arguing that Acklie’s rights under the agreement had not vested, 

because his employment with the company ended prior to his 

turning age 60. The court overruled the motion to dismiss, 

finding that the language of paragraph 6 is unambiguous and 

does not require that Acklie be employed with Greater Omaha 

at the time he turned 60 in order to become fully vested. The 

court stated that paragraph 6 has no “language limiting the 

receipt of the deferred compensation to employees who were 

still employed when they turned the specified age, nor was 

there a provision specifying that an employee is not entitled to 

any pension not accrued prior to termination.” Greater Omaha 

filed an answer.

Acklie then moved for summary judgment. The court 

granted Acklie’s motion for summary judgment with respect 

to Greater Omaha’s liability for breach of contract and violation of the Nebraska Wage Payment and Collection Act. The 

court found that “the language vesting [Acklie’s] deferred 

compensation is unambiguous,” that a valid and enforceable 

contract exists between the parties, and that as a matter of 

law, Acklie was entitled to an amount equal to the fair market value of “the assets placed in the [account] as deferred 

compensation to [Acklie].” The court found that based on 

Acklie’s claim, pursuant to § 48-1231, he is entitled to costs 

and attorney fees not less than 25 percent of the damages to 

be determined at trial.

The court found genuine issues of material fact regarding 

the amount of Acklie’s damages. Acklie claimed that under 

the agreement, he is entitled to the fair market value of the 

assets in his deferred compensation account as of October 

1, 2007, the first day of the first month following his turning age 61. Evidence adduced at the hearing showed that 

Greater Omaha established a single investment account for 

deferred compensation for all eligible employees and used 

the account to pay multiple employees pursuant to several 
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ACKLIE v. GREATER OMAHA PACKING CO.

Cite as 306 Neb. 108

separate deferred compensation agreements. The court noted 

that an account record in evidence, dated December 31, 1993, 

lists contributions made in 1989 and 1990 for six employees, 

including Acklie, as well as their salaries and percent of distribution. The account record indicated that the total value of the 

account was $97,170.16 and that Acklie’s share of distribution 

was $18,574.92. In a letter dated December 31, 2015, Greater 

Omaha stated that, as of September 2007, the fair market value 

of the total assets in the account was $98,130.63. Because the 

2007 valuation did not itemize the asset distribution for each 

employee, there was no evidence of the value of Acklie’s 

general ledger account and there was a triable issue of fact 

regarding damages.

Prior to the trial on Acklie’s damages, the court conducted 

a bench trial on Greater Omaha’s counterclaim for reformation based on mutual mistakes made in the agreement. Greater 

Omaha asked that the court reform the agreement’s covenant 

not to compete provision, which prohibits working in the 

meatpacking business “within any of the restricted areas,” to 

add a schedule specifying that the provision includes Omaha 

and Douglas County, Nebraska. In addition, Greater Omaha 

asked that the court reform the vesting provision to make 

clear that an employee vests upon attaining age 60 only if the 

employee is still working at the company. The court found that 

Greater Omaha failed to prove that there was a mutual mistake 

and dismissed its counterclaim.

At the trial on Acklie’s damages, prior to the opening of 

evidence, the court and parties’ counsel discussed the scope 

of trial. They recognized that in disposing of Greater Omaha’s 

motion to dismiss and Acklie’s motion for summary judgment, the court determined that under the unambiguous meaning of paragraph 6, Acklie’s right had vested. Consequently, 

Greater Omaha could not present evidence that Acklie had 

not vested. However, the court considered how another provision of the agreement, paragraph 11, affected the evidence. 
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ACKLIE v. GREATER OMAHA PACKING CO.

Cite as 306 Neb. 108

Paragraph 11, referred to by Greater Omaha as the “discretionary provision,” 1 provides:

Company’s powers and liabilities. The Company shall 

have full power and authority to interpret, and administer 

[the] [a]greement. The Company’s interpretations and 

construction of any provision or action taken under [the] 

[a]greement, including any valuation of the Deferred 

Compensation Account, or the amount of recipient of the 

payment due under it, shall be binding and conclusive 

on all persons for all purposes. No member of the Board 

shall be liable to any person for any action taken or omitted in connection with the interpretation and administration of [the] [a]greement unless attributable to the member’s willful misconduct or lack of good faith.

The court found paragraph 11 to be ambiguous when construed with other provisions within the agreement, such as 

paragraph 4, which provides for the creation of a deferred 

compensation account into which Greater Omaha may distribute funds, and paragraph 7, which establishes the terms of 

the benefits to be paid as deferred compensation. In ruling on 

Acklie’s motion for summary judgment, the court found that 

pursuant to paragraph 7, Greater Omaha must pay Acklie the 

fair market value of the assets in his deferred compensation 

account as of the first day of the first month following his 

attaining age 61. The court determined that because paragraph 

11 conflicts with the terms of paragraphs 4 and 7, the meaning 

of paragraph 11 is ambiguous and is therefore a question of 

fact for the jury.

Greater Omaha argued that it should be permitted to present 

evidence that paragraph 11 gave it the discretion to eliminate 

deferred compensation for employees who left the company 

prior to attaining age 60 or retiring, so long as the company 

did not act in bad faith. The court agreed, stating that Greater 

1 Brief for appellee at 1.
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ACKLIE v. GREATER OMAHA PACKING CO.

Cite as 306 Neb. 108

Omaha could suggest that Acklie is “entitled to zero, but you 

can’t suggest he’s not entitled.” Acklie’s counsel stated that 

the court’s ruling conflicted with its prior determination that 

Acklie had vested. Acklie’s counsel argued that if paragraph 

11 were interpreted to contradict payment terms of the agreement, then the agreement would be unenforceable, but claimed 

the agreement is enforceable due to the duty of good faith and 

fair dealing. The court stated that the issue of vesting would 

not be relitigated.

Trial evidence showed that Greater Omaha contributed 

$50,083.23 to the account in 1989 and $26,000 in 1991. 

Greater Omaha maintained the investments in the account, 

but made no other contributions. Thereafter, Greater Omaha 

switched to a 401K compensation plan. The parties stipulated that on September 19, 2007, the account balance was 

$98,130.67, and that as of July 2018, the account balance was 

$195,274.32. Based on his calculation of the account’s rate of 

growth between those two dates, Acklie testified that at the 

time of trial, the value of his share was $119,336.86.

Greater Omaha’s president testified that on September 

1, 1989, he held an office meeting with several employees, 

including Acklie, and presented them with identical deferred 

compensation agreements to sign and return. Greater Omaha’s 

president testified that Acklie’s account was reduced to zero 

because he left the company prior to vesting and that in addition to Acklie, the company had eliminated deferred compensation for two other employees who left the company prior to 

vesting. Greater Omaha’s president stated that under the agreement, this was a matter of the company’s discretion.

At the jury instruction conference, Acklie lodged an objection to the court’s statement of the case and damages jury 

instructions, but the court found no merit to Acklie’s proposed 

instructions. The court instructed the jury that as a matter of 

law, Acklie’s deferred compensation rights under the agreement had vested. The court instructed the jury that “[v]esting 
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creates a contractual right that may be upheld by law. A vested 

right is fixed, settled, absolute, and not contingent upon anything.” The court instructed the jury that Acklie carried the 

burden to prove (1) that Greater Omaha breached the agreement by failing to pay Acklie the amount due under the agreement, (2) that the breach of contract was a proximate cause 

of some damage to Acklie, and (3) the nature and extent of 

that damage. The court instructed the jury that “[i]f you find 

in favor of Acklie on his claim for breach of contract, then 

you must determine the amount of Acklie’s damages. Acklie is 

entitled to recover the amount of money in the deferred compensation account to which he was entitled . . . .”

The jury returned a verdict in favor of Greater Omaha. 

The district court entered judgment on the verdict, and later 

overruled Acklie’s motion for new trial. Acklie appealed. We 

moved the appeal to our docket pursuant to our statutory 

authority to regulate the caseloads of the appellate courts of 

this state. 2

ASSIGNMENTS OF ERROR

Acklie assigns that the district court erred in (1) finding 

ambiguity in the agreement, (2) refusing proposed jury instructions, and (3) giving confusing, conflicting jury instructions.

STANDARD OF REVIEW

[1,2] The construction of a contract is a matter of law, in 

connection with which an appellate court has an obligation 

to reach an independent, correct conclusion irrespective of 

the determinations made by the court below. 3 Whether jury 

instructions are correct is a question of law, which an appellate 

court resolves independently of the lower court’s decision. 4

2 See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).

3 Johnson Lakes Dev. v. Central Neb. Pub. Power, 254 Neb. 418, 576 

N.W.2d 806 (1998).

4 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
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Cite as 306 Neb. 108

ANALYSIS

Acklie argues that the district court erred in determining that paragraph 11 is ambiguous when construed with 

other provisions of the agreement. Acklie contends that paragraph 11 is not ambiguous and that by finding ambiguity 

where it did not exist, the court’s determination confused 

the jurors as to whether they were to decide whether Greater 

Omaha breached the agreement or were to exclusively consider the damages owed to Acklie. Acklie further argues that 

the court should have not permitted Greater Omaha to pre

sent evidence supporting its theory that it denied payment to 

Acklie, because the company had denied payment to two previous employees under the same contract. In response, Greater 

Omaha argues that the agreement grants it sole decisionmaking authority over whether to contribute to the deferred 

compensation account, as well as the amount of any payment 

due, and that the district court properly admitted extrinsic 

evidence to permit the jury to determine the meaning of 

paragraph 11.

[3-7] The issues raised in Acklie’s appeal concern general 

contract principles. In interpreting a contract, a court must 

first determine, as a matter of law, whether the contract is 

ambiguous. 5 A contract written in clear and unambiguous language is not subject to interpretation or construction and must 

be enforced according to its terms. 6 A contract is ambiguous when a word, phrase, or provision in the contract has, 

or is susceptible of, at least two reasonable but conflicting 

interpretations or meanings. 7 The determination of whether 

a contract is ambiguous is to be made on an objective basis, 

not by the subjective contentions of the parties suggesting 

5 City of Sidney v. Municipal Energy Agency of Neb., 301 Neb. 147, 917 

N.W.2d 826 (2018).

6 Id.

7 Id.
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opposing meanings of the disputed language. 8 A contract must 

receive a reasonable construction and must be construed as a 

whole, and if possible, effect must be given to every part of 

the contract. 9

We do not interpret the terms provided within paragraph 

11 to be ambiguous. When viewed objectively, paragraph 11 

is not susceptible of two reasonable but conflicting meanings. 

The provision unmistakably grants Greater Omaha the sole 

authority to interpret and administer the agreement. Likewise, 

the provision clearly grants Greater Omaha binding authority to determine the valuation of the account and the amount 

of any payment due under the agreement. We therefore conclude that paragraph 11 is unambiguous and must be understood according to its clear terms, without regard to extrinsic evidence.

However, we determine that the plain and ordinary meaning of paragraph 11, as well as paragraph 4, raises an issue 

which goes to the heart of Acklie’s appeal: whether the agreement is an enforceable contract under which Acklie could 

recover. Acklie’s lawsuit is premised on the claim that Greater 

Omaha breached the agreement by failing to pay him the 

amount due to him. If, pursuant to our obligation to reach an 

independent, correct conclusion irrespective of the determinations made by the court below, we determine the agreement is 

unenforceable, then Acklie would be entitled to no relief and 

there would be no merit to the assignments of error Acklie has 

raised. Therefore, the principal issue before us is whether the 

agreement is enforceable.

Deferred compensation is presently earned but is to be paid 

to an employee in the future if he or she possesses the qualifications required by the plan and complies with the conditions 

8 Johnson Lakes Dev., supra note 3.

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

(2018).
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prescribed by it. 10 The conditions of the agreement in this case 

include the terms of paragraph 11, provided above, which 

permits Greater Omaha to take “binding and conclusive” 

“action[,]” “including any valuation of the [account], or the 

amount of . . . payment due under [the agreement].” In addition, paragraph 4 states that a general ledger account shall 

be established for the purpose of reflecting deferred compensation and that Greater Omaha will annually determine 

“an amount” to credit to the account. Critically, paragraph 4 

uses clear language qualifying Greater Omaha’s obligation 

to fund the account by stating, “The amount of the contribution and the decision as to whether to make one at all, shall 

be solely the decision of [Greater Omaha].” Pursuant to a 

plain and ordinary meaning of these terms, the decision of 

whether Acklie ever qualifies for payment under the deferred 

compensation plan is a matter left to Greater Omaha’s sole 

discretion. The agreement clearly grants Greater Omaha the 

binding and conclusive authority to decide whether or not to 

pay Acklie.

[8-10] A party seeking to enforce a contract has the burden of establishing the existence of a valid, legally enforceable contract. 11 To create a contract, there must be both an 

offer and an acceptance; there must also be a meeting of the 

minds or a binding mutual understanding between the parties 

to the contract. 12 It is a fundamental rule that in order to be 

binding, an agreement must be definite and certain as to the 

terms and requirements. 13 It must identify the subject matter 

and spell out the essential commitments and agreements with 

respect thereto. 14

10 Sindelar v. Canada Transport, Inc., 246 Neb. 559, 520 N.W.2d 203 (1994).

11 Houghton v. Big Red Keno, 254 Neb. 81, 574 N.W.2d 494 (1998).

12 Id.

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

(1977).

14 Id.
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[11] Generally, mutuality of obligation is an essential element of every enforceable contract and consists in the obligation on each party to do, or permit something to be done, in 

consideration of the act or promise of the other. 15 Mutuality 

is absent when only one of the contracting parties is bound 

to perform, and the rights of the parties exist at the option of 

one only. 16 One of the most common types of promise that is 

too indefinite for legal enforcement is the promise where the 

promisor retains an unlimited right to decide later the nature 

or extent of his or her performance. 17 In that situation, the 

promisor’s unlimited choice in effect destroys the promise 

and makes it illusory. 18 An illusory promise is one that is so 

indefinite that it cannot be enforced, or by its terms makes 

performance optional or entirely discretionary on the part of 

the promisor. 19

[12] An agreement which depends upon the wish, will, or 

pleasure of one of the parties is illusory and does not constitute an enforceable promise. 20 Without a mutuality of obligation, the agreement lacks consideration and, accordingly, 

15 Johnson Lakes Dev., supra note 3; De Los Santos v. Great Western Sugar 

Co., 217 Neb. 282, 348 N.W.2d 842 (1984).

16 Id. Accord Hecker v. Ravenna Bank, 237 Neb. 810, 468 N.W.2d 88 (1991). 

See, 17 C.J.S. Contracts § 135 (2011); 17A Am. Jur. 2d Contracts § 22 

(2016).

17 Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir. 2000); 

Davis v. General Foods Corporation, 21 F. Supp. 445 (S.D.N.Y. 1937).

18 Floss, supra note 17, citing 1 Samuel Williston, A Treatise on the Law 

of Contracts § 43 (3d ed. 1957); Davis, supra note 17. See Midland Steel 

Sales Co. v. Waterloo Gasoline Engine Co., 9 F.2d 250 (8th Cir. 1925).

19 Fagerstrom v. Amazon.com, Inc., 141 F. Supp. 3d 1051 (S.D. Cal. 2015), 

affirmed sub nom. Wiseley v. Amazon.com, Inc., 709 F. Appx. 862 (9th Cir. 

2017).

20 Johnson Lakes Dev., supra note 3; Pantano v. McGowan, 247 Neb. 894, 

530 N.W.2d 912 (1995), disapproved on other grounds, Weyh v. Gottsch, 

303 Neb. 280, 929 N.W.2d 40 (2019); Chadd v. Midwest Franchise Corp., 

226 Neb. 502, 412 N.W.2d 453 (1987).
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does not constitute an enforceable agreement. 21 As relevant 

here, an agreement to pay such wages as the employer desires 

is invalid. 22

In De Los Santos v. Great Western Sugar Co., 23 this court 

considered a breach of contract action brought by a contractor which agreed to transport “‘such tonnage of beets as may 

be loaded by’” a sugar company. Because the sugar company 

hired other truckers in addition to the contractor, the company terminated the contractor’s services after 2 months. The 

contractor sought to enforce the parties’ agreement, and the 

district court granted summary judgment in favor of the sugar 

company. On appeal, we stated the sugar company made no 

promises other than to pay for the transportation of beets 

which were in fact loaded by the company. We found that in 

the absence of a contractual provision specifying quantity, the 

company was not obligated to use the contractor’s services, 

and the company’s decision to cease using those services 

is not actionable. 24 In interpreting the contract at issue, we 

found that “the right of the defendant to control the amount 

of beets loaded onto the plaintiff’s trucks was in effect a 

right to terminate the contract at any time, and this rendered 

the contract as to its unexecuted portions void for want 

of mutuality.” 25

In Davis v. General Foods Corporation,

 26 the plaintiff 

revealed an idea and recipe to the defendant for fruit flavors 

to be used in homemade ice cream. The defendant agreed to 

pay the plaintiff reasonable compensation if it used the recipe 

21 See Floss, supra note 17.

22 See, Day’s Stores, Inc. v. Hopkins, 573 P.2d 1366 (Wyo. 1978); Varney v. 

Ditmars, 217 N.Y. 223, 111 N.E. 822 (1916); Calkins v. Boeing Company, 

8 Wash. App. 347, 506 P.2d 329 (1973).

23 De Los Santos, supra note 15, 217 Neb. at 283, 348 N.W.2d at 844.

24 See id.

25 Id. at 286, 348 N.W.2d at 845.

26 Davis, supra note 17.
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and idea in its business, and it wrote that any compensation 

paid would rest solely in the defendant’s discretion. The court 

found the parties’ agreement was so indefinite that it could 

not support a binding obligation. The court found that the 

defendant’s promise was illusory, reasoning that by agreeing 

to the defendant’s unlimited right to decide the compensation 

to be paid, the plaintiff was in effect throwing herself upon the 

mercy of those with whom she contracted. 27

Applying the foregoing principles to this case, we determine that Greater Omaha’s promise to pay Acklie deferred 

compensation is fatally indefinite. The conditions relating to 

payment were not fully determined and were left to the discretion of one contracting party only. Per the express terms of 

the agreement, Acklie’s expectancy interest is no greater than 

the possibility of receiving payment from Greater Omaha, 

unless Greater Omaha chose not to make such a payment. 

These terms did not create a binding contract or one under 

which Acklie could establish a right to any specific funds. 28

One of the primary reasons that an illusory promise is unenforceable is that the indefiniteness of such a promise precludes the court from being able to fix exactly the legal liability of the parties to the contract. 29 We find that the indefinite 

features of the agreement here are like those addressed in 

De Los Santos and Davis, because Greater Omaha’s right to 

control the amount of payment due, if any, is in effect a right 

to terminate the contract at any time. Accordingly, the agreement is not a valid, legally enforceable contract under which 

Acklie could recover.

The arguments made by Acklie and Greater Omaha in 

anticipation of a determination that the agreement is unenforceable are not persuasive. While both parties contend that 

27 See id.

28 See, Charter Inv. & Dev. Co. v. Urban Med. Serv., 136 Ga. App. 297, 220 

S.E.2d 784 (1975); Calkins, supra note 22.

29 Fagerstrom, supra note 19.
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the duty of good faith and fair dealing saves the agreement 

from being rendered illusory, they provide no legal authority 

demonstrating why such is the case under the circumstances of 

this case. To be sure, there are circumstances under which the 

duty of good faith and fair dealing is sufficient to avoid the 

finding of an illusory promise. 30 However, this case does not 

present such a circumstance, because the illusory nature of the 

agreement stems from its express terms, and Greater Omaha’s 

exercise of rights clearly granted to it cannot constitute bad 

faith on its part. 31

The implied covenant of good faith and fair dealing exists in 

every contract and requires that none of the parties to the contract do anything which will injure the right of another party 

to receive the benefit of the contract. 32 However, in order for 

the implied covenant of good faith and fair dealing to apply, 

there must be in existence a legally enforceable contractual 

agreement. 33 In the case at bar, we have held that Acklie failed 

to prove the existence of an enforceable contract. Therefore, 

the implied covenant of good faith and fair dealing does not 

save the agreement from being rendered illusory.

Additionally, there is no merit to the argument that the 

covenant not to compete provision saves the agreement from 

being rendered illusory. No party challenged the district 

court’s conclusion that the covenant not to compete provision 

is unenforceable, because it prohibits only working “within 

any of the restricted areas” and the agreement does not specify 

any restricted areas. Moreover, the fact that Greater Omaha 

30 See, Milenbach v. C.I.R., 318 F.3d 924 (9th Cir. 2003); Fagerstrom, supra

note 19; Corthell v. Summit Thread Co., 132 Me. 94, 167 A. 79 (1933); 

Horizon Corp. v. Westcor, Inc., 142 Ariz. 129, 688 P.2d 1021 (Ariz. App. 

1984); Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973). 

See, also, Chadd, supra note 20.

31 See De Los Santos, supra note 15.

32 Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d 390 (2003).

33 Cimino v. FirsTier Bank, 247 Neb. 797, 530 N.W.2d 606 (1995).
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made two contributions does not create an enforceable agreement, because the contract’s unambiguous language imposes 

no obligation upon Greater Omaha to pay Acklie any money 

from the account.

Because the agreement lacks mutuality of obligation, the 

agreement does not create a binding obligation, making the 

agreement unenforceable. Because the agreement is unenforceable, all of Acklie’s claims fail as a matter of law. Where 

the record adequately demonstrates that the decision of a 

trial court is correct—although such correctness is based on 

a ground or reason different from that assigned by the trial 

court—an appellate court will affirm. 34 Because we find that 

Acklie cannot recover under the agreement, we need not 

address his remaining assignments of error.

CONCLUSION

For the foregoing reasons, the judgment is affirmed.

Affirmed.

34 State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).