George Clift Enters. v. Oshkosh Feedyard Corp., 947 N.W.2d 510

Background

GCE (George Clift Enterprises) signed an exclusive 12-month listing (July 2013) with Oshkosh Feedyard for $4.5M and a 4.5% brokerage fee; the contract included a 2‑month post‑term protection clause and a $4,000 upfront listing fee (paid).
In spring–summer 2014 Bretz (GCE’s agent) communicated with prospective buyers (Betley, Braun, Matzke); Bretz encouraged them to continue direct discussions with seller Jessen and said he and the owner "would deal with the listing agreement."
The buyers formed Oshkosh Heifer Development (Aug 2014) with Jessen as a member; the purchase agreement closed Dec 2014 for $2.5M—after both the 12‑month listing and 2‑month protection periods expired.
GCE sued in 2014 (dismissed for lack of prosecution), refiled in Sept. 2017 alleging breach of the listing and conspiracy/tortious interference; discovery disputes ensued and depositions were not taken before defendants moved for summary judgment in Jan. 2019.
The district court granted summary judgment for defendants (Apr. 2019), finding no ready/willing/able buyer within the listing period and that GCE waived the referral prohibition; the court also found the suit frivolous and awarded attorneys’ fees to all defendants.
On appeal the Supreme Court affirmed summary judgment, reversed the fee award in part (concluding the conspiracy claim was not frivolous), and remanded for recalculation/allocation of fees limited to defense of the first (contract) claim.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the summary judgment hearing was premature and the court abused its discretion by denying a continuance to take depositions	GCE: depositions were "absolutely essential" and discovery remained incomplete; continuance required under §25‑1335	Defs: case pending long, GCE dilatory in taking depositions, written discovery largely available	Court: No abuse of discretion; GCE was dilatory and failed to show specific facts that additional discovery would produce; continuance not required
Whether GCE earned a commission (broker produced a ready, willing, and able buyer within listing or protection period)	GCE: its efforts/contacts (via Bretz) produced prospective buyers who ultimately purchased the property; commission due despite closing after the period	Defs: no buyer was ready/willing/able on seller’s terms during listing/protection periods; negotiations and sale terms reached after the periods; Bretz consented to direct talks (waiver)	Court: No genuine issue—GCE did not produce a ready, willing, and able buyer in time; protection clause not triggered; GCE waived the referral restriction by consenting to direct negotiations
Whether the conspiracy / tortious‑interference claim was actionable and supported by evidence	GCE: defendants conspired to delay/structure the sale to avoid paying a broker commission	Defs: no agreement/intent to delay; buyers unaware of listing early on; Bretz encouraged direct talks; no underlying tort or proximate causation	Court: Claim was cognizable but GCE failed to show facts establishing agreement, intent, or proximate cause; summary judgment on merits affirmed, but appellate court held the conspiracy claim was not frivolous for purposes of fees
Whether the court properly awarded and allocated attorney fees as sanctions and whether counsel should be disqualified / held jointly and severally liable	GCE: fees improper; counsel should not be held liable; disqualification opposed	Defs: claims frivolous and in bad faith; fees justified and may include allocation against attorneys	Held: Trial court did not clearly err in finding the contract claim frivolous and awarding fees for defending that claim against Jessen/Oshkosh Feedyard; appellate court reversed fee awards to buyer‑defendants (who were only defendants to conspiracy claim) and remanded to reassess and limit fees to defense of the first cause; disqualification issue was moot; no abuse in not imposing joint and several liability on GCE’s counsel given the record

Key Cases Cited

Lombardo v. Sedlacek, 299 Neb. 400 (2018) (standards for discovery/continuance and district court discretion)
Korth v. Luther, 304 Neb. 450 (2019) (appellate review of attorney‑fee awards for frivolous litigation)
McCully, Inc. v. Baccaro Ranch, 284 Neb. 160 (2012) (broker entitled to commission where buyer procured within listing period even if closing later)
Dworak v. Michals, 211 Neb. 716 (1982) (broker commission earned when purchaser ready, willing, and able on owner's terms)
Coldwell Banker Town & Country Realty v. Johnson, 249 Neb. 523 (1996) (no commission where terms effectuating sale were reached by seller after listing expired)
Denali Real Estate v. Denali Custom Builders, 302 Neb. 984 (2019) (elements of tortious interference with business relationship)
Pearce v. ELIC Corp., 213 Neb. 193 (1982) (contract waiver may be shown by express acts or conduct inducing belief of waiver)