Opinion
No. A-10-941.
08-16-2011
Steven L. Kennedy and Kellie H. Kennedy, appellees, v. Roberta Kennedy, appellant.
Angelo M. Ligouri, of Ligouri Law Office, for appellant. Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, for appellees.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Nemaha County: Daniel E. Bryan, Jr., Judge. Affirmed in part, and in part reversed and remanded with directions.
Angelo M. Ligouri, of Ligouri Law Office, for appellant.
Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, for appellees.
Inbody, Chief Judge, and Sievers and Moore, Judges.
Sievers, Judge.
Roberta Kennedy owns approximately 80 acres of farm ground in Nemaha County, Nebraska, known as Farm 1949, that is involved in this litigation. Of the 80 acres, 64.55 acres are tillable. Steven L. Kennedy is Roberta's nephew and has farmed in Nemaha County for more than 30 years—raising corn, soybeans, alfalfa, and wheat, as well as having a cow-calf operation. Leased farm ground is an important part of Steven's farming operation, and he began cash renting Roberta's Farm 1949 in the crop year 2000. This lawsuit involves the claim of Steven and his wife, Kellie H. Kennedy, against Roberta for lost profits, because Roberta did not allow Steven to farm the ground during the 2008 crop year. There is no question that Roberta did not give Steven timely written notice of termination of a year-to-year farm lease as required by Nebraska law with respect to the 2008 crop year. The district court entered judgment for $24,885.44 in Steven and Kellie's favor. Roberta appeals, contending that while she did not provide written notice by September 1, 2007, there was a prior oral agreement reached between Roberta and Steven that he would not be farming the ground during the 2008 crop year, and that he breached the terms of the lease.
We have previously ordered this case submitted for decision without oral argument pursuant to our authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008).
FACTUAL BACKGROUND
When Steven and Roberta first began the farm lease at issue, it was pursuant to an oral agreement, the terms of which were a year-to-year tenancy with one-half of the $6,000 yearly cash rent due on March 1 and the second half due on December 1 of the crop year. The lease carried over year-to-year, and Steven paid Roberta the rent as required for each crop year up to 2005 under this arrangement. However, in November 2005, Steven and Roberta renegotiated the terms of the year-to-year tenancy for Farm 1949 so that Steven would continue to pay $6,000 in cash rent, on the same dates as before, plus he would perform or pay for approximately $1,200 in conservation work, such as terracing, each crop year. Steven testified that the conservation work could be done any time during the lease year, running from March 1 of the year to February 29 of the following year, and that Steven could perform the work himself. Roberta argues that to satisfy the conservation work requirement, such work had to be done before spring planting. For crop year 2006, Steven hired Robert Taft of T & F Construction to perform conservation work on Roberta's farm, including bulldozer work, rebuilding broken terraces, and removing an unneeded terrace for which Steven was billed on April 19 by T & F Construction in the amount of $1,350, which Steven paid.
For several years before 2006, Steven had performed conservation work himself, including using his soil mover to fill in ditches, partially build terraces, and clean out terrace channels. Steven testified that he satisfied the conservation requirement in 2007 by doing the work himself. He testified that at that time, $50 per hour was a reasonable rate in Nemaha County for soil movers such as the one he owned and $25 per hour was a reasonable rate for clearing brush. Steven testified that he kept track on his home calendar of the number of hours he spent doing conservation work as far back as crop year 2004 as well as in crop year 2007. He said he did conservation work on Farm 1949 on May 8 through 11, 2007. Steven testified that he recorded 21 1/2 hours of dirt moving and 3 1/2 hours of brush clearing on his calendar for those dates--which at the rates he testified to would come between $30 to $40 of meeting his obligation.
The harvest of Roberta's Farm 1949 in 2007 occurred on October 17 and November 22. Even though, as detailed shortly, Steven had received Roberta's written notice of lease termination dated October 22, 2007, Steven nonetheless contacted Taft to finish the terrace work in order to satisfy his 2008 crop year obligation under the lease to do $1,200 worth of conservation work on Farm 1949. Steven indicated that he also sent Taft a check for $2,500 dated November 29, 2007. He proceeded with these arrangements for conservation work because he considered the termination notice invalid under Nebraska law and because he intended to farm the ground in 2008. This conservation work was not done because Steven, according to his testimony, was directed not to let Taft on the property. Taft also testified that he received a telephone call from Roberta in which she specifically told him not to do any work on her farm. And Steven did not personally do any further conservation work for the 2008 crop year after the 2007 crop was out because, according to his testimony, he was directed by Roberta's counsel to stay off of the farm.
Roberta's mother and Steven's grandmother, Lola Kennedy, passed away on October 17, 2006, and Roberta was appointed personal representative of her estate. On approximately December 21, there was a meeting attended by Steven and Roberta at her attorney's office along with other family members. According to Steven's testimony, at this meeting he sat next to Roberta and, in contrast to Roberta's testimony, Steven denied that she told him during that meeting that he would not be farming her ground after the 2007 year. There was another meeting at the attorney's office on about February 16, 2007, and there is in the record a second account in which Roberta said she informed Steven at the February meeting that he would not be farming the ground after the 2007 crop year. Steven denied that Roberta told him this. Steven's sister testified that she attended this February 2007 meeting, that she was within "ear and eye shot" of Steven during the entire meeting, and that Roberta did not tell Steven he would not be farming the ground after 2007.
Steven testified that he received a notice of termination of farm tenancy, exhibit 6, from Roberta's attorney on October 23, 2007, by certified mail but that he considered it "invalid" because it was not done by September 1 as required by Nebraska law. Steven retained counsel, who wrote to Roberta's counsel indicating Steven's belief that the cash-rent lease for crop year
2007 had carried over for 2008 and that thus Steven was planning on farming the ground for crop year 2008 on the same terms and conditions as in 2007. On February 23, 2008, Steven tendered to Roberta a check for $3,000 sent via certified mail for the first half of the 2008 cash rent, but such was returned by Roberta's attorney to Steven's attorney.
Steven's testimony was that he typically plants soybeans around May 10 and that even though he was denied access to the farm ground and did not plant a crop, he tendered the second half of the rent of $3,000 by a check dated November 21, 2008, which was likewise returned.
With respect to damages, Steven's testimony was that he calculated the number of tillable acres at 64.55 based on Farm Service Agencies records for Farm 1949. Steven then testified as to various expenses of raising a crop, which are summarized as follows:
Cash rent $112.32 per acreThus, based on those figures and tillable acreage of 64.55 acres, Steven's calculation of expenses that he would have incurred in a crop of soybeans which he intended to plant in 2008 was $13,276. With respect to production, the court received exhibit 35, the Agro National Crop Production report for crop year 2008, from which Steven calculated a soybean crop yield for 2008 at 50.4 bushels per acre. With respect to the price per bushel for soybeans, Steven introduced a "forward contract" for soybeans that he had with a facility in Brownville, Nebraska, which produced a final figure of $11.73 per bushel for soybeans for a gross crop price of $38,161.44. After deduction of the cost of raising the crop, Steven calculated damages at $24,885.44--the exact amount awarded by the district court.
Planting expense 8.00 per acre
Spraying expense 4.00 per acre
Seed expense 36.65 per acre
Chemical expense 11.39 per acre
Crop insurance 13.31 per acre
Harvest expense 20.00 per acre
Total expenses for
2008 crop year $205.67 per acre
In her original answer, Roberta alleged that she "verbally informed" Steven "in January/February 2007 that she planned on having another farmer cash rent her property for at least the 2008 farm year because of all the conflicts the parties were having involving the distribution of [Lola's] estate." This answer was verified, but as earlier detailed, Roberta also testified at trial that she gave such notice to Steven verbally on December 21, 2006, at the meeting previously mentioned concerning Lola's estate.
TRIAL COURT DECISION
After a bench trial on August 25, 2010, the trial court rendered its decision on August 31. The court found the existence of an oral farm lease and that there was no oral notice of termination of the lease given in December 2006. The court then found that the written notice of termination of the farm lease, postmarked October 22, 2007, was not timely. Implicit in the court's decision and award of damages is the conclusion that Roberta had breached the farm lease by not allowing Steven on the ground to farm it. The court awarded Steven and Kellie damages of $24,885.44. Roberta has filed this timely appeal.
ASSIGNMENTS OF ERROR
Roberta's brief assigns 13 numbered assignments of error. We have carefully reviewed such to determine which are actually argued. See Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007) (to be considered by appellate court, alleged error must be both specifically assigned and specifically argued in brief of party assigning error). Furthermore, we have reviewed Roberta's assignments to determine which are merely duplicative and thus can be properly combined and restated. Therefore, the assigned and argued errors, as restated, that we have considered are as follows:
Roberta assigns that the trial court erred in (1) ruling that her answer did not set forth as an affirmative defense that Steven had breached the verbal farm lease for the 2007 farm year; (2) in determining that the parties' "conduct and actions were irrelevant" in determining Steven's right to farm the ground in 2008, including Steven's attitude and demeanor toward Roberta during the course of the probate of Lola's estate; (3) in determining that Steven had a right to farm the ground in 2008; (4) in not allowing the person who actually farmed the ground in 2008 to testify about the actual 2008 crop production; and (5) in awarding damages when there was no evidence that Steven and Kellie had lost profit in 2008 and when their evidence of damages was based on speculation and hearsay.
STANDARD OF REVIEW
The parties do not disagree about our standard of review. It has been articulated in many cases, including General Fiberglass Supply v. Roemer, 256 Neb. 810, 812-13, 594 N.W.2d 283, 285-86 (1999):
A suit for damages arising from breach of a contract presents an action at law. . . . In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless clearly erroneous. . . . The appellate(Internal citations omitted.)
court does not reweigh the evidence, but considers the judgment in a light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.
ANALYSIS
Admissibility of Evidence of Parties'
Conduct and Demeanor.
Roberta apparently challenges an evidentiary ruling in her assignment that the trial court erred in determining that the parties' "conduct and actions were irrelevant" in deciding whether Steven had a contractual right to farm the ground in 2008. We quote from Roberta's brief: "The district court absolutely refused to consider the parties conduct, intentions, or circumstances in determining whether or not [Steven] breached the parties' oral lease agreement for 2007." Brief for appellant at 14. Rather than the "absolute refusal to consider" stated above, we find, after reviewing the record, and in particular the citations in Roberta's brief to the record, that the trial court actually allowed considerable evidence concerning the parties' "conduct, intentions, or circumstances." However, the court did draw the line at the details of the claim that Steven filed in Lola's estate case in county court—which seems to be the main focus of this claim. But, even then, the trial court allowed evidence of the filing of such claim in the estate and that Steven was unsuccessful, and the court said that it would consider such facts with respect to credibility. However, the court refused to admit other details of that estate litigation on grounds of relevancy. The rule is that when the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. Erickson v. U-Haul Internat., 278 Neb. 18, 767 N.W.2d 765 (2009). A trial court's determination of the relevancy and admissibility of evidence must be upheld in the absence of abuse of discretion. Id.
The trial court said that it would not allow Roberta's counsel to "retry" the claim Steven had filed against Lola's estate. The trial court was not persuaded by the argument made by Roberta's counsel that "the parties' conduct and their acts, their intention, and how they treat one another or what they think about the other individual are relevant in the breach of the contract." Accordingly, the trial court rejected an offer of proof, exhibit 43, the county court's order in Lola's estate case disposing of the claims that Steven advanced against the estate as well as approving the proposed distribution of assets. Having reviewed the exhibit, we find that it is not relevant to the issue on trial in this case--whether Steven's oral farm lease of Roberta's Farm 1949 was effective for crop year 2008. Evidence must be relevant to be admissible. State v. Fick, 18 Neb. App. 666, 790 N.W.2d 890 (2010). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Id. Relevancy has two components: materiality and probative value. Id. Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case. Id. Probative value is a relative concept; the probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the ultimate issues of the case. Id.
Using these well-known concepts, we find that the estate litigation is neither material nor probative of any fact in issue in this case, other than possibly with respect to the parties' credibility, as the trial court found. And, for this purpose, the fact that the claims were filed and Steven lost was sufficient. Therefore, the trial court did not abuse its discretion in ruling that the estate proceedings, beyond what it considered on the issue of the parties' credibility, were not relevant.
In advancing this claim of error, Roberta seems to ignore the fact that as to the conduct of the parties, the trial court did receive in evidence the facts about Steven's crop rotation between corn and soybeans on Farm 1949. From this evidence, Roberta was able to advance the argument that planting the ground all to corn in 2007 shows that he did not intend to farm it in 2008 because if he had, he would have planted part of the ground to soybeans. Extensive evidence was offered and received about when and how the conservation work was done under the renegotiated farm lease beginning in 2006. In short, the claim that the trial court did not allow evidence of the parties' conduct in order to show whether or not they thought the lease was ongoing or terminated is simply not supported by the entirety of the trial record. The fact that the trial court was not persuaded that Steven knew and had agreed that the lease would not continue for crop year 2008 is not clearly erroneous in light of the entirety of the record. This naturally brings us to the next assignment of error.
Did Trial Court Err in Concluding That Roberta Had Not Pleaded
Affirmative Defense That Steven Had Breached Farm Lease
by Not Complying With Requirement for
Performing Conservation Work?
After the matter of the relevancy of the estate litigation was dealt with by the trial court as summarized above, the cross-examination of Steven moved to the subject of the conservation work that was or was not done for the 2007 crop year. In this regard, we can summarize the parties' positions. Roberta maintains that the oral agreement required that $1,200 of conservation work had to be done after the harvest of the 2006 crop and before planting the 2007 crop--which Steven did not do prior to planting the 2007 crop. This basic position is alleged in Roberta's answer. No reply was filed to the answer. Steven asserts that the conservation work could be done anytime during the crop year under the oral lease and that he complied by contracting with and paying Taft on November 29, 2007, except that neither of them was allowed to go onto Farm 1949. Of course, these contrasting positions demonstrate the shortcomings of oral agreements in that everything works fine--until it does not--at which point a trial court is often called upon to resolve what has often colloquially been referred to as a "swearing contest." Our standard of review for a bench trial, as a practical matter, is rarely going to allow us to make a different factual finding than the trial court in such circumstances.
That said, we have closely examined the discussion between the court and counsel covering some 4 1/2 pages in the record on the subject of whether Roberta's allegation that Steven had not done the conservation work between the end of harvest of the 2006 crop and the planting of the 2007 crop, and thus was in breach of the lease, was a properly raised affirmative defense. The discussion began when the trial court asked about whether the allegation was a "counterclaim," at which point counsel asserted that it was an affirmative defense and that Roberta was not seeking damages. This lengthy discussion ended as follows when the court said "so the lawyers don't have to set out their affirmative defenses?"
[Roberta's counsel]: I think we did set it out, our affirmative defense, in our answer.Accordingly, we do not see that there was any adverse ruling by the trial court about which to complain--beyond the fact that the court implicitly concluded that Steven complied with the lease or, if he did not, that such did not excuse Roberta's failure to provide timely written notice of termination of the oral year-to-year farm lease—which we soon discuss. During the trial, the "how, what, and when" of the conservation issue was thoroughly covered and no evidence about the matter was excluded. Thus, the only reasonable conclusion, given the exchange quoted above, is that the court ultimately agreed that alleging the issue as part of the answer was sufficient, and thus this assignment of error is without merit.
THE COURT: Okay, all right.
[Roberta's counsel]: Now, [m]ay I ask my question, your Honor?
THE COURT: Go right ahead.
[Roberta's counsel]: Thank you.
Did Trial Court Err in Finding That Farm Lease Extended to 2008 Crop Year?
The issue set forth in this assignment of error is of course the crux of the case. We begin with the basic Nebraska law on termination of year-to-year farm leases. In Holtman v. Lallman, 122 Neb. 183, 239 N.W. 820 (1931), the court said: "Generally in this state, in the absence of any different agreement, a yearly lease of farm lands begins on March 1 and ends on February 28, of the succeeding year, and the rental becomes due at the expiration of the term." (Syllabus of the court.) See Moudry v. Parkos, 217 Neb. 521, 349 N.W.2d 387 (1984). The parties in the case before us are in agreement that these were the beginning and ending dates for each year's lease. Moudry then set forth the "roadmap" for termination of a year-to-year farm lease, as is involved here, and we quote:
The owner is entitled to terminate a lease of his property with a tenant so long as he does it in accordance with law and in a timely fashion. This means that 6 months in advance of when the owner wishes to terminate the lease, he should prepare and send to the tenant a notice indicating that the owner intends to terminate the tenancy on February 28 and demands possession of his property. And if the tenant fails to give up possession, the owner may then file suit and, in attempting to prove the termination of the lease, can offer in evidence a copy of the notice supported by evidence of its service upon the tenant.217 Neb. at 527, 349 N.W.2d at 391. Clearly, the Moudry opinion contemplates written notice of termination being served on the tenant in a manner that service can be readily proved. Roberta's written notice of October 22, 2007, was not timely as it occurred well after September 1, and thus, the notice was ineffective to terminate the lease for the 2008 crop year.
It is true that the case law indicates that a year-to-year farm lease can also be terminated by the agreement of the parties to the lease. Stuthman v. Stuthman, 2 Neb. App. 173, 507 N.W.2d 674 (1993). We understand Roberta to argue that there was an agreement formed in December 2006 or February 2007 when she says she told Steven that he would farm the ground in 2007 but not in 2008. Her daughter supports Roberta's testimony that she told Steven this. Steven denied that any such conversation occurred, and his sister, who was present at the February 2007 meeting, supports his testimony. However, it is noteworthy that Roberta's testimony was not that Steven agreed to this termination, but, rather, that he was upset and did not speak with her thereafter, whereas previously they had been "close." The district court made a finding that there was "no oral notice given" in December 2006. But it is apparent that even if we assume that oral notice was given as Roberta testified in December 2006, there was no evidence whatsoever that an agreement was formed between Roberta and Steven to terminate the lease after the 2007 crop year such that the written notice from the landlord to the tenant required by Moudry, supra, was not necessary. Therefore, we find that the district court was not clearly wrong when it determined that Steven was entitled to farm Roberta's Farm 1949 for the 2008 crop year.
Did Trial Court Err in Not Allowing Farmer
Who Raised Crop on Leased Land in 2008
to Testify as to His Yields?
Andrew Brown, who had farmed in Nemaha County for over 30 years, testified that he had farmed "the other half of this quarter" beginning in 2006, and he also raised a soybean crop on Farm 1949 in 2008. He was asked what yield he got on the ground at issue to which an objection was interposed on foundation and relevance. In his objection, counsel suggested that differences in "spray and bean variety" made the evidence irrelevant. At that point the court said, "I'll sustain on foundation at this time." We believe it goes without saying that the actual yield from Farm 1949 would be relevant evidence, a view that the trial judge apparently shared given that he sustained the objection only on the ground of foundation.
Thus, the first question for us is whether there was adequate foundation when the question was asked--which at that juncture did not include the fact that Brown had farmed in Nemaha County for over 30 years. Nonetheless, we have to ask who would have foundation to testify as to the 2008 yield, if not the person who actually farmed the ground and raised the soybean crop in 2008? The answer is quite obvious that it would be Brown. Accordingly, we find that the trial court abused its discretion in sustaining the objection to the question to Brown about what his yield was for the 2008 crop. The matters suggested in the objection (spraying and variety planted--as well as other factors we can imagine) are matters for cross-examination and go to the weight to be given the evidence. We note that even after further questioning of Brown that could be seen as laying additional foundation, he was not asked again about the yield in 2008 on Roberta's farm. And there never was an offer of proof of the 2008 yield.
Because we find that the foundation was adequate and that the foundational objection should have been overruled, we must now assess whether Roberta was prejudiced by the erroneous ruling. It is fundamental that exclusion of evidence must unfairly prejudice a substantial right of a litigant complaining about evidence excluded. See, Neb. Rev. Stat. § 27-103(1)(b) (Reissue 2008); Kirchner v. Wilson, 262 Neb. 607, 634 N.W.2d 760 (2001). Because there was no offer of proof we do not know what the evidence would have been about the yield that Brown got in 2008 from Roberta's farm. However, § 27-103(1)(b), as well as abundant case law, allows an appellate court to find error in a ruling excluding evidence when the substance of the evidence was apparent from the context even without an offer of proof.
We conclude that the substance of the evidence, as well as its purpose, were apparent even without an offer of proof. Steven calculated a soybean crop yield for 2008 of 50.4 bushels per acre. The substance of the evidence to be adduced by the question to Brown would have been that Brown's actual yield was less than the 50.4 bushels per acre used in Steven's damage calculation. Roberta would have nothing to gain by introducing evidence that Brown's actual yield was equal to or greater than 50.4 bushels. The purpose of the evidence would be to allow the fact finder to conclude that Steven's calculation of damages resulting from being prevented from farming the ground was inflated and inaccurate. This could only be done by evidence that the actual yield was less than what Steven used in his damage calculation. Because the evidence would go to the proper calculation of damages, and could have resulted in a lesser award of damages, the error was prejudicial. However, before we are finished, we must briefly address Roberta's assignments of error concerning Steven's calculation of damages.
Must Steven Sustain "Loss of Profit" in 2008
Before He Can Recover Damages for
Breach of Farm Lease?
Roberta assigns as error that the trial court determined that Steven had been damaged by the breach of the farm lease when Steven did not produce "evidence that [he] incurred a loss of profit in 2008." Brief for appellant at 4. The argument advanced in support of this assignment is that there was no proof that Steven's farmed acreage decreased from 2007 to 2008. But, there is no authority that such would be a prerequisite to recovery of damages from a breach of a farm lease--which incidentally is simply a contract. The general rule for recovery of damages in breach of contract cases is that the ultimate objective of a damages award is to put the injured party in the same position the injured party would have occupied if the contract had been performed, that is, to make the injured party whole. Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626 (2008). Stated another way, in a case involving a breach of contract, the proper measure of damages is an amount which will compensate the injured party for loss which fulfillment of the contract would have prevented or breach of it has entailed. Wells Fargo Alarm Serv. v. Nox-Crete Chem., 229 Neb. 43, 424 N.W.2d 885 (1988). In this case, it is not whether Steven farmed the same, greater, or fewer acres in 2008 than he did in 2007 that entitles him to damages, but, rather, that he was prevented from farming Roberta's ground when a valid year-to-year lease gave him a legal right to farm the ground. Determining damages would entail a calculation of the cost of raising and harvesting the crop deducted from the value of the crop. This is how Steven's calculation of damages, summarized in exhibit 34, was done. As a general proposition, such a calculation would present Steven's position as to what was needed in damages to "make him whole"--as the measure of damages dictates. This assignment of error is without merit.
Did Trial Court Use Improper Methodology
and Inadmissible Evidence to Calculate
Its Award of Damages?
Roberta's final two assignments of error are not in accordance with our rules of appellate procedure. We quote the assignments, but we only discuss them to a limited extent:
8. The trial court erred in allowing numerous hearsay documents in evidence, over Appellant's objection, being offered by the Appellee to prove damages.
9. The trial court erred in awarding damages based on speculation and hearsay.
First, we set forth exhibit 34, a summary of Steven's testimony about how he calculated his loss from not being allowed to farm Roberta's Farm 1949 for the 2008 crop year:
Expenses - per acre:
Cash rent $ 112.32
Planting 8.00
Spraying 4.00
Seed 36.65
Crop insurance 13.31
Harvesting 20.00
Chemical
Roundup Power MaxIncome:
$63.75/gallon (128 ounces) =
.498/ounce - 22 ounces/acre 10.96
Choice $17.25/gallon
1 quart/100 gallons of water
1 gallon covers 40 acres or
$17.25/40 acres _.43
TOTAL EXPENSES PER ACRE $ 205.67
64.55 acres x $205.67 = $13,276.00
Average of closest farms in proximity of Farm 1949 (per 2008 production report for 2009 APH computation for crop insurance):
50.40 bushels/acre x 64.55 acres = 3,253.3 bushels x $11.73 = $38,161.44 - $13,276 = $24,885.44.
In our discussion in the previous section of the proper measure of damages, we indicated that the above methodology is proper in a case such as this. It includes the cost of the land, the cost of planting and raising the crop, and the cost of harvesting it. That total expense is then deducted from what Steven thought the price per bushel of soybeans would have been. Generally, this is an appropriate methodology, but because we must remand the cause for a new trial on the sole issue of damages, we do not attempt to rule on the two assignments of error quoted in this section. Nor do we comment on the validity of the costs and values used in the calculation.
However, we do comment that these two assignments are very much a "shotgun" approach whereas our rules require a "rifle" approach, because we should not have to wander through a trial record, look at each hearsay objection, and figure out whether it is one that the appellant is serious about and meant for us to examine. Rather, the Supreme Court rules of practice require that the appellant's brief shall contain "[a] separate, concise statement of each error a party contends was made by the trial court." Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2008). The rules also require that the argument shall present each question separately. See § 2-109(D)(1)(i). Therefore, for several reasons, we need not discuss these two assignments further. See Kelly v. Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994) (appellate court is not obligated to engage in analysis which is not needed to adjudicate case and controversy before it).
CONCLUSION
We affirm the trial court's decision that Steven and Kellie were entitled to farm Roberta's Farm 1949 for the 2008 crop year under the year-to-year farm lease. We further affirm the trial court's conclusion that Roberta breached the lease when she prevented Steven from farming Farm 1949 and that she is liable in damages. However, we reverse the trial court's award of damages and remand the cause for a new trial solely on the issue of damages caused by the breach because of the evidentiary error we have discussed above.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.