S-22-0880 Isham (Appellant) v. Jack (Appellee)
Appeal from the Nebraska Court of Appeals on appeal thereto from the District Court for Butler County, Judge Christina M. Marroquin
Attorneys: George H. Moyer (Moyer, Moyer & Lafleur for Appellant) and Billy C. Jack (Self-Represented Appellee)
Civil: Specific performance of contract and replevin
Proceedings below: In Isham v. Jack, 32 Neb.App. 647, 3 N.W.2d 656 (2024), the Court of Appeals affirmed a decision from the district court that denied Appellant’s complaint against Appellee regarding possession of real property. The Court sustained Appellant’s petition for further review and ordered this case to be transferred from the docket of the Court of Appeals to its docket.
Issues: Appellant makes the following assignments of error on petition for further review: 1) The opinion fails to consider the effect of Mason v. Schumacher, 231 Neb. 929, 439 N.W.2d 61 (1989) and the rule announced therein that the mere passage of time or non-use of personal property without any other evidence showing an intent to abandon is not generally enough to prove the defense of abandonment relied on by defendant; 2) The opinion fails to consider the failure of the defendant to adduce proof of a clear, unequivocal and decisive action by the plaintiff of a knowing and intentional waiver of the clause in a written contract allowing plaintiff to remove his two car garage from the lot defendant rented in a mobile home park; 3) The opinion errs by concluding that "due to the lengthy delay by Isham in responding to Jack" about whether he would remove the garage, "such delay resulted in a conclusion by Jack that Isham was no longer interested in the garage and forfeited his right to it without considering Jack's equally long delay in notifying Isham he was considering the garage abandoned; 4) The opinion errs by failing to recognize that Jack had an equal ability and opportunity to contact Isham and assure himself that "Isham was no longer interested in the garage" before he - not a court of law - but Jack himself, concluded that Jack had become the owner of the garage; and 5) The opinion errs by affirming the district court's judgment.