Tierney v. Four H Land Co.

586 	288 NEBRASKA REPORTS
James Tierney and Jeffrey Tierney, appellanTs,
v. four H land C ompany limiTed
parTnersHip eT al., appellees.
852 N.W.2d 292
Filed July 18, 2014. 	No. S-13-720.
1. Specific Performance: Equity: Appeal and Error. An action for specific
performance sounds in equity, and on appeal, an appellate court decides factual
questions de novo on the record and will resolve questions of fact and law inde-
pendently of the trial court’s conclusions.
2. Specific Performance: Contracts. Specific performance may be granted only
where there is a valid, legally enforceable contract and the party seeking specific
performance has substantially complied with the terms of that contract.
3. Contracts. Whatever the construction of a particular clause of a contract, stand-
ing alone, may be, it must be read in connection with other clauses.
4. Contracts: Words and Phrases. 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.
5. Specific Performance: Contracts: Equity. Specific performance should be
granted, as a matter of course, of a written contract cognizable in equity, which
has been made in good faith, whose terms are certain, whose provisions are fair,
and which is capable of being enforced without hardship, where the ends of jus-
tice will be subserved thereby.
6. Specific Performance: Equity. A court’s discretion to order specific perform-
ance is controlled by established principles of equity and depending upon the
facts and circumstances of the particular case. It is not a discretion in the sense
that it may be granted or denied at the will or pleasure of the judge. It is governed
by the elements, conditions, and incidents that control the administration of all
equitable remedies.
7. ____: ____. Exoneration from specific performance may be available when spe-
cific performance would be inequitable or unjust due to hardship on the one from
whom performance is sought.
8. Specific Performance: Contracts. Hardship arising from a circumstance unfore-
seeable at entry into a contract may excuse specific performance of a contract,
provided that the hardship is not self-inflicted or caused through inexcusable
neglect on the part of the person seeking to be excused or exonerated from spe-
cific performance.
9. Contracts. A contract is not invalid, nor is the obligor therein in any manner
discharged from its binding effect, because the contract turns out to be difficult
or burdensome to perform.
10. ____. If a party by his own contract creates a duty or imposes a charge on
himself, he must under any and all conditions substantially comply with the
undertaking.
11. 	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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:35 AM CST

TIERNEY v. FOUR H LAND CO. 	587
Cite as 288 Neb. 586
Appeal from the District Court for Lincoln County: William
T. WrigHT, Judge. Reversed and remanded with direction.
James J. Paloucek, of Norman, Paloucek & Herman Law
Offices, for appellants.
Jay C. Elliott, of Elliott Law Office, P.C., L.L.O., for appel-
lees Four H Land Company Limited Partnership and Western
Engineering Company, Inc.
David W. Pederson, of Pederson Law Office, and Lou
Jungbauer, of Yaeger, Jungbauer & Barczak, for appellees
Frank Aloi and Aloi Living Trust.
H eaviCan, C.J., WrigHT, C onnolly, sTepHan, mCC ormaCk,
and miller-lerman, JJ.
WrigHT, J.
NATURE OF CASE
In 1998, James Tierney and Jeffrey Tierney entered into an
agreement with Four H Land Company Limited Partnership
(Four H) and Western Engineering Company, Inc. (Western),
regarding operation of a sand and gravel pit on property owned
by Four H. In this agreement, the Tierneys agreed to waive
their right to contest the issuance of a conditional use per-
mit (CUP) for operation of the sand and gravel pit. In return,
Four H and Western accepted various conditions regarding
operation of the sand and gravel pit, including reclamation of
the property after expiration of the CUP.
In 2009, the Tierneys brought an action for specific per-
formance. They alleged that Four H and Western had not
fulfilled the conditions of the agreement. The district court
concluded that specific performance was not an appropriate
remedy and dismissed the Tierneys’ action. We reverse, and
remand with direction to order specific performance.
SCOPE OF REVIEW
[1] “[A]n action for specific performance sounds in equity,
and on appeal, we decide factual questions de novo on the
record. We will resolve questions of fact and law independently

588 	288 NEBRASKA REPORTS
of the trial court’s conclusions.” Mogensen v. Mogensen, 273
Neb. 208, 212, 729 N.W.2d 44, 50 (2007).
FACTS
BaCkground
This case involves a parcel of real estate previously owned
by Four H and currently owned by the Aloi Living Trust and
its trustee. Henceforth, this real estate will be referred to as
“the property.” Under county zoning, the property was located
within an “A-1 Agricultural District” and historically had been
a hayfield. The Tierneys own lots 3 and 4 of the Hidden Lakes
subdivision in Lincoln County, Nebraska, located immediately
south of the property.
1997 Cup
In 1997, Four H applied for a CUP to operate a sand and
gravel pit on the property. The application was approved by the
Lincoln County Planning Commission and the Lincoln County
Board of Adjustment. The Tierneys appealed approval of the
1997 CUP to the district court, and in July 1998, the 1997
CUP was set aside due to the board of adjustment’s failure to
follow the correct procedures for issuance of a CUP under zon-
ing regulations.
1998 Cup and aCCompanying
agreemenT
Four H applied a second time for a CUP, and again, the
Tierneys objected to the application. To resolve their dispute
regarding the sand and gravel pit operation, in August 1998,
Four H, Western, the Tierneys, and the owners of lots 1 and
2 of the Hidden Lakes subdivision entered into an agreement.
The agreement provided that the Tierneys and the other prop-
erty owners would “waive their right to appeal . . . the issuance
of the [CUP] for the sand and gravel pit operation.” In return,
Four H and Western accepted various conditions to the opera-
tion of the sand and gravel pit.
Four H’s application for a CUP was thereafter approved.
The 1998 CUP was to be effective for a period of 10 years,
terminating on October 31, 2007. The agreement integrated

TIERNEY v. FOUR H LAND CO. 	589
Cite as 288 Neb. 586
the terms of the 1998 CUP, “except to the extent they [were]
contrary to or less restrictive than the terms” of the agreement,
in which case the agreement would control.
The relevant terms of the agreement provided:
As the operation in one phase is completed and the opera-
tion moves to the next phase, [Four H] and [Western]
shall reclaim the land in the phase of prior operations
by filling to at least its approximate original topography,
covered with a minimum of four (4) inches of top soil
and seeded with appropriate native grasses to prevent ero-
sion and to visually restore the site, except the area to be
used for a lake. This shall be done within one (1) year of
termination of operations on the phase. . . . In any event,
reclamation and restoration of the property shall be com-
pleted by October 31, 2008. Restoration shall be the joint
and several obligation of Four H . . . , Western . . . , and
any other operator of the sand and gravel pit.
The relevant provision of the 1998 CUP provided:
At the close of each phase of the sand and gravel pit oper-
ation the area shall be leveled to its original topography
within one year of termination of each phase. The areas
not covered by water shall then be covered with four
inches (minimum) of topsoil and seeded with appropriate
native grasses to prevent erosion of the soil.
This condition was incorporated into the 1998 CUP from the
original 1997 CUP. This was required by the agreement, which
provided that the 1998 CUP “shall include, at a minimum, the
terms and conditions contained in the [CUP] approved by the
Lincoln County Planning Commission on September 9, 1997,
on the initial application of [Four H].”
aCTion for speCifiC
performanCe
In April 2009, the Tierneys filed an action for specific
performance against Four H (prior owner of the property),
Western (operator of the sand and gravel pit), and the Aloi
Living Trust and its trustee (current owners of the prop-
erty). The Tierneys alleged that Four H and Western had
“failed to meet the requirements of the [1998 CUP]” or “their

590 	288 NEBRASKA REPORTS
obligations under the agreement.” In particular, the Tierneys
claimed that
[u]nder the [1998 CUP] and the agreement, Four H and
Western were required to, and agreed that they would,
no later than October, 2008, return the area of the mining
operation to its original topography. Instead, Four H and
Western have raised the ground level of the majority of
the area of the mining operation to approximately six feet
to eight feet higher than the original topography.
The Tierneys prayed for an order requiring Four H and Western
to specifically perform.
Four H and Western denied that they had failed to meet
their obligations under the 1998 CUP or the agreement. They
claimed to have “substantially complied with and performed
the obligations and requirements of the ‘Agreement’ dated
August 11, 1998.” The Aloi Living Trust and its trustee also
alleged that Four H and Western had complied with the 1998
CUP and the agreement.
summary JudgmenT
proCeedings
All parties filed motions for summary judgment. After a
hearing at which evidence was received, the district court
entered summary judgment in favor of Four H, Western, and
the Aloi Living Trust and its trustee. The Nebraska Court of
Appeals affirmed the judgment. See Tierney v. Four H Land
Co., No. A-10-103, 2010 WL 4354243 (Neb. App. Nov. 2,
2010) (selected for posting to court Web site). We granted fur-
ther review and reversed the judgment, because we determined
that the district court judge should have recused himself. See
Tierney v. Four H Land Co., 281 Neb. 658, 798 N.W.2d 586
(2011). “Without addressing the underlying merits of th[e]
dispute,” we remanded the cause for a new hearing. Id. at 663,
798 N.W.2d at 591.
On remand, a different judge of the district court overruled
all the motions for summary judgment. It was determined that
the 1998 CUP and the agreement were ambiguous as they
related to the requirements imposed upon Four H and Western

TIERNEY v. FOUR H LAND CO. 	591
Cite as 288 Neb. 586
and that those ambiguities created genuine issues of material
fact that prevented summary judgment.
BenCH Trial and disTriCT
C ourT order
The case proceeded to a bench trial, which was held over
4 trial days and included a “site visit.” Thereafter, the dis-
trict 	court 	dismissed 	the Tierneys’ complaint 	for 	specific
performance.
The district court explained its findings of fact as to the con-
dition of the property:
The evidence about the topography of the subject prop-
erty before and after the mining is basically undisputed.
Before the gravel mining started the property was rela-
tively level with no significant rises or depressions, was
farmed primarily as a hayfield, and essentially mirrored
the lay of the land on the south side of the country road
. . . which separates the mined property from property
owned by . . . the Plaintiffs Tierneys. Now after mining
operations have been terminated, the subject property has
a lake of approximately 30 acres surface area and has,
around the entire perimeter of the property, a continuous
earthen berm that is elevated 5 to 10 feet above the natu-
ral topography and which is approximately 100 to 150
feet in width.
The court concluded that “[e]ssentially, none of the property is
currently at the elevation it was before the mine. The encircling
berm is elevated above the original topography and the lake is
below the original topography.”
The district court concluded that the 1998 CUP and the
agreement were ambiguous “in the requirements they impose[d]
on [Four H and Western].” The court found that the 1998 CUP
and the agreement were susceptible to at least two interpreta-
tions. It explained:
The [1997 and 1998 CUP’s and the county zoning regu-
lations] appear to impose an unconditional requirement
for a return of the land to its original topography, i.e., its
natural state. The August 11, 1998 Settlement Agreement

592 	288 NEBRASKA REPORTS
(which itself is incorporated into the [CUP] of the same
date) arguably allows [Four H and Western] to fill exca-
vated areas to a height above the natural topography, but
not less.
(Emphasis in original.)
To resolve this apparent conflict between the 1998 CUP and
the agreement, the district court examined the clause in the
agreement that integrated the 1998 CUP and the agreement.
The court noted the agreement stated that the terms and condi-
tions of the 1998 CUP applied “except to the extent they are
contrary to or less restrictive than the terms” of the agreement.
But according to the court, the “restoration requirements of the
Settlement Agreement are on their face ‘less restrictive’ in that
they do allow ‘filling’ of the excavated area above the original
topography, while the other documents require the area [to]
‘be leveled to its original topography.’” Ultimately, the court
found that the intention of the parties was to adopt the more
restrictive requirement, even if it was in the 1998 CUP and not
the agreement.
The district court concluded that the “most reasonable
objective manifestation of the intention of the parties was the
restoration of the property to its original topography, except
for a small lake.” Given this determination as to the intended
restoration of the property and the aforementioned findings
as to the actual condition of the property, the court found that
Four H and Western had not met the requirements of the 1998
CUP and the agreement.
The district court next considered whether it should order
specific 	performance. 	It 	stated 	that 	specific 	performance
“would appear to be the only adequate remedy” due to the fact
that damages “would be uncertain and difficult, if not impos-
sible, to prove.” However, the court ultimately concluded that
specific performance was not an appropriate remedy, because
the 1998 CUP and the agreement were not sufficiently certain
and definite and the burden upon Four H and Western out-
weighed the benefits to the Tierneys.
The district court applied a “heightened burden of certainty
and definiteness” to determine whether it should order specific

TIERNEY v. FOUR H LAND CO. 	593
Cite as 288 Neb. 586
performance. It concluded the 1998 CUP and the agreement
did not meet the requirements of certainty and definiteness,
because identifying the intent of the parties as to restoration
of the property had been “tortuous” and required interpreting
the language of the agreement “in a way contrary to natural
usage.” (Emphasis in original.) Therefore, the court held that
the 1998 CUP and the agreement were “not sufficient . . . to
support specific performance.”
The district court next discussed the “comparative benefits
and burdens of a decree of specific performance,” an analysis
the court admitted had “never arisen in Nebraska.” It con-
cluded that the burdens on Four H and Western were “so out
of balance” with the benefits to the Tierneys that the “overall
result would be more spiteful than just.” It stated that perform-
ance of the 1998 CUP and the agreement would be a project
“massive in both scope and expense.” Conversely, it concluded
that the benefits to the Tierneys from specific performance
would “essentially be aesthetic ones” and that even if specific
performance were ordered, the Tierneys’ “rural living circum-
stances [were] by no means guaranteed.”
Given the “massive” burdens that specific performance
would impose upon Four H and Western and the resulting
“aesthetic” benefits to the Tierneys, the district court denied
specific performance and dismissed the Tierneys’ complaint.
The Tierneys timely appeal. Pursuant to our statutory author-
ity to regulate the dockets of the appellate courts of this
state, we moved the case to our docket. See Neb. Rev. Stat.
§ 24-1106(3) (Reissue 2008).
ASSIGNMENTS OF ERROR
The Tierneys generally assign that the district court erred in
failing to order specific performance of the 1998 CUP and the
agreement. In particular, they assign, restated, that the court
erred by (1) imposing a heightened burden of certainty and
definiteness, (2) comparing the benefits and burdens of per-
formance, and (3) allowing the property to exist in a state that
violated a condition of the 1998 CUP and applicable county
zoning regulations.

594 	288 NEBRASKA REPORTS
ANALYSIS
[2] The question presented is whether the district court erred
by not ordering specific performance. Specific performance
is an appropriate remedy only under certain circumstances.
Specific performance may be granted only where there is a
valid, legally enforceable contract, see Marten v. Staab, 249
Neb. 299, 543 N.W.2d 436 (1996), and the party seeking spe-
cific performance has substantially complied with the terms
of that contract, see Pennfield Oil Co. v. Winstrom, 272 Neb.
219, 720 N.W.2d 886 (2006). There must be no adequate rem-
edy at law for breach of the relevant contract. See Brown v.
Knox, 219 Neb. 189, 361 N.W.2d 540 (1985). Where a contract
relates to real property, the inadequacy of a remedy at law is
assumed. See Mohrlang v. Draper, 219 Neb. 630, 365 N.W.2d
443 (1985).
In the instant case, the district court found that the “most
reasonable objective manifestation of the intention of the par-
ties” was for the property to be restored to its original topog-
raphy, except for a small lake. It also determined that (1) after
completion of the sand and gravel pit operation, Four H and
Western left the property at a higher elevation than before, in
breach of the 1998 CUP and the agreement; (2) the Tierneys
had no adequate remedy at law for Four H’s and Western’s
breach; and (3) if the court were to order specific performance,
it would order Four H and Western to
return the topography to its natural condition of a largely
level field of approximately 2770 feet elevation on the
west side, gently sloping to an elevation of approximately
2765 feet on the east side, leaving a kidney-shaped lake
of approximately 11 acres of surface area in the middle
of the property and then cover the areas, other than the
11-acre [lake], with a minimum of 4 inches of topsoil and
plant native grasses.
Four H and Western did not file a cross-appeal to challenge
these findings.
After making the above findings of fact, the district court
declined to order specific performance, because it found that
the 1998 CUP and the agreement were not sufficiently cer-
tain and definite to support specific performance and that the

TIERNEY v. FOUR H LAND CO. 	595
Cite as 288 Neb. 586
benefits of performance were greatly outweighed by the bur-
dens of restoring the property to its original topography. We
review factual questions de novo on the record and resolve
questions of law independently of the district court. See
Mogensen v. Mogensen, 273 Neb. 208, 729 N.W.2d 44 (2007).
We conclude as a matter of law that the court erred in not
ordering specific performance.
H eigHTened Burden of C erTainTy
and definiTeness
The district court’s first reason for denying specific per-
formance was that the 1998 CUP and the agreement did not
meet a “HEIGHTENED BURDEN OF CERTAINTY AND
DEFINITENESS.” The court found that the 1998 CUP and
the agreement were ambiguous as to whether the property had
to be returned to its original topography or could be returned
to “at least” its original topography. Given this ambiguity,
the court concluded that the 1998 CUP and the agreement
were not sufficiently certain to support specific performance.
We disagree.
The conditions of the 1998 CUP and the agreement, consid-
ered in pari materia, were unambiguous and clearly indicated
that upon completion of the sand and gravel pit operation,
Four H and Western were required to return the property to its
original topography. Therefore, the terms of the 1998 CUP and
the agreement were sufficiently certain and definite to allow
for specific performance.
The agreement required Four H and Western to reclaim the
property after each phase of the sand and gravel pit operation
by “filling to at least its approximate original topography . . .
except the area to be used for a lake.” In terms of reclamation,
the 1998 CUP imposed a stricter requirement upon Four H and
Western than the agreement. The 1998 CUP required that after
each phase of the operation, the property would be “leveled
to its original topography.” The final elevation of the property
could be neither higher nor lower than the elevation prior to the
sand and gravel pit operation, except for the lake.
[3] When viewed alone, the agreement arguably might be
susceptible to two interpretations. It mentions “filling” the

596 	288 NEBRASKA REPORTS
property, but not leveling, and uses the qualifier “at least.” But
the requirements of the agreement cannot be interpreted alone.
Whatever the construction of a particular clause of a contract,
standing alone, may be, it must be read in connection with
other clauses. Hearst-Argyle Prop. v. Entrex Comm. Servs., 279
Neb. 468, 778 N.W.2d 465 (2010). This is particularly true in
the instant case, where the parties integrated the 1998 CUP into
the agreement.
We must view the agreement in connection with the 1998
CUP, even though the 1998 CUP is more restrictive in its rec-
lamation requirements. The parties were required to comply
with the provisions of both the 1998 CUP and the agreement.
The only exception was that the parties would not be bound by
a requirement of the 1998 CUP that was “contrary to or less
restrictive than the terms” of the agreement. But the 1998 CUP
could be more restrictive than the agreement. The requirements
of the 1998 CUP were imposed by county zoning regulations.
Therefore, because the reclamation provision of the 1998 CUP
was more restrictive than the agreement, not less, it was bind-
ing upon the parties.
[4] A contract is ambiguous when a “word, phrase, or provi-
sion in the contract has, or is susceptible of, at least two rea-
sonable but conflicting interpretations or meanings.” Beveridge
v. Savage, 285 Neb. 991, 996, 830 N.W.2d 482, 487 (2013).
When viewed in conjunction with the 1998 CUP, the agreement
was susceptible of only one reasonable interpretation—that
upon completion of the sand and gravel pit operation, Four H
and Western were required to restore the property to its original
topography. By incorporating the 1998 CUP into the agree-
ment, the parties limited the actions that would comply with
the agreement to the action required by the 1998 CUP. And the
1998 CUP clearly required a return to the original topography,
as required by county zoning regulations.
Collectively, the 1998 CUP and the agreement unambigu-
ously required a return to the original topography, except for
a lake created by the extraction of gravel from the property.
Both the 1998 CUP and the agreement required that reclama-
tion of the property would occur in phases that coincided

TIERNEY v. FOUR H LAND CO. 	597
Cite as 288 Neb. 586
with the phases of the sand and gravel pit operation. These
phases were identified “on the site plan.” The site plan was
part of the application for the 1998 CUP and showed the final
phase of the sand and gravel pit operation as leaving a lake
that covered approximately 11 acres. The lake that remained
would represent the volume of gravel that had been removed
during operations. Because the parties referred to and relied
upon the site plan in the agreement, we conclude that they
agreed to the phases outlined in the site plan, including the
11-acre lake.
The 1998 CUP and the agreement set forth the core
requirements for reclamation of the property and were suf-
ficiently certain and definite to describe what was required of
Four H and Western. The district court erred in concluding to
the contrary.
C omparison of BenefiTs and Burdens
of speCifiC performanCe
The second reason given by the district court for not order-
ing specific performance was that the burdens on Four H and
Western outweighed the benefits to the Tierneys. The Tierneys
assert that such a comparison of the benefits and burdens of
specific performance “finds no support in Nebraska law” and
“ignores clear Nebraska law on the applicability of specific
performance as a remedy in cases involving real estate.” Brief
for appellants at 21 and 27. We agree.
[5,6] Specific performance should be granted, “‘as a mat-
ter of course, of a written contract cognizable in equity, which
has been made in good faith, whose terms are certain, whose
provisions are fair, and which is capable of being enforced
without hardship, where the ends of justice will be subserved
thereby.’” Kucera v. Kavan, 165 Neb. 131, 138, 84 N.W.2d
207, 211 (1957), quoting Garsick v. Dehner, 145 Neb. 73, 15
N.W.2d 235 (1944). A court’s discretion to order specific per-
formance is
controlled by established principles of equity and depend-
ing upon the facts and circumstances of the particular
case. It is not a discretion in the sense that it may be

598 	288 NEBRASKA REPORTS
granted or denied at the will or pleasure of the judge. It is
governed by the elements, conditions, and incidents that
control the administration of all equitable remedies.
Mainelli v. Neuhaus, 157 Neb. 392, 395-96, 59 N.W.2d 607,
610 (1953).
[7] 	Because 	specific 	performance 	must 	be 	granted 	or
denied according to general equitable principles, concepts of
fairness and equity can be considered. See id. In particular,
“[e]xoneration from specific performance may be available
when specific performance would be inequitable or unjust due
to hardship on the one from whom performance is sought.”
Mohrlang v. Draper, 219 Neb. 630, 633, 365 N.W.2d 443,
447 (1985).
[8] But to the extent hardship enters into the equation, it is
not compared to the benefits accruing to the party seeking per-
formance. In analyzing whether hardship is sufficient to excuse
performance under a contract, the question is whether the hard-
ship complained of was foreseeable at entry into the contract.
Hardship arising from a “circumstance unforeseeable at entry
into the contract” may excuse specific performance of a con-
tract, provided that the hardship is not “self-inflicted or caused
through inexcusable neglect on the part of the person seeking
to be excused or exonerated from specific performance.” Id.
at 634, 365 N.W.2d at 447. It is inconsequential to this analy-
sis how the hardship compares to the benefits that would be
obtained by the party seeking performance.
We adopted the foregoing approach to hardship, because
under a contrary rule, “one would derive a benefit from his or
her own inexcusable neglect.” Id. For the same reasons, we
decline to depart from our precedent and adopt the cost-benefit
analysis used by the district court—that is, comparing the cost
of performance to the benefits that would accrue to the party
seeking specific performance.
Under an approach that weighs burdens and benefits of per-
formance without considering the origins of those burdens, a
party could be excused from specific performance due to the
exact burdens it willingly and legally assumed under the con-
tract. Furthermore, if the only relevant factor were the degree

TIERNEY v. FOUR H LAND CO. 	599
Cite as 288 Neb. 586
of hardship, a party could derive positive benefits from creat-
ing impediments to its own performance, such as by engaging
in compounded breaches of the contract, and would thereby be
encouraged to do so.
The instant case illustrates the potential problems of the
district court’s approach to hardship. The court excused Four H
and Western from their contractual obligations, because per-
formance would require them to “shove a huge amount of earth
back into” the lake created by the sand and gravel pit operation
in order to return the property to its original topography. The
court explained that this requirement was burdensome, because
it would be a project “massive in both scope and expense,”
would require “pushing approximately 25 acres of fill material
into the lake,” and might require Four H and Western to obtain
permits and licenses. (Emphasis in original.) We find it sig-
nificant that these burdens were required by the 1998 CUP and
the agreement and were the result of Four H’s and Western’s
own actions.
The parties contemplated that performance by Four H and
Western would require filling in a lake created by the sand and
gravel pit operation. Indeed, the 1998 CUP and the agreement
specifically required the lake to be filled in according to the
site plan after each phase of the operation. The 1998 CUP and
the agreement contemplated that restoring the property to its
original topography would be the responsibility of Four H and
Western and that they would obtain all the required permits.
Thus, Four H and Western entered into the 1998 CUP and the
agreement with knowledge that they would be taking on such
burdens. They received the benefits of removing gravel from
the property for 10 years and cannot now be excused from ful-
filling their contractual obligations to restore the property due
to the very burdens they intended to assume under the CUP and
the agreement.
The 1998 CUP and the agreement required Four H and
Western to return the property to its original topography at the
conclusion of each phase of the sand and gravel pit operation.
However, Four H and Western did not engage in this incre-
mental restoration. Instead, the district court found that Four H

600 	288 NEBRASKA REPORTS
and Western pumped sand into a “pile 10 to 12 feet high that
was continuously extended as the operation made its clock-
wise circle of the property.” By doing so, Four H and Western
continually enlarged the lake until it covered 30 acres instead
of 11 acres, which, in turn, created an increased burden of per-
formance. They cannot claim that increased burden as justifi-
cation for excusing specific performance. Four H and Western
chose not to refill the sand after each stage of the operation.
Having created the massive pile of sand, they cannot now
claim that it is just too big to clean up.
[9,10] The approach of the district court rewarded Four H
and Western for failing to perform their obligations under the
1998 CUP and the agreement. Such a result is neither just
nor equitable. Generally speaking, contracts must be enforced
even when performance works hardship. Parties “‘“bind them-
selves by their lawful contracts, and courts cannot alter them
because they work a hardship. . . . A contract is not invalid,
nor is the obligor therein in any manner discharged from its
binding effect, because it turns out to be difficult or burden-
some to perform.”’” Mohrlang v. Draper, 219 Neb. 630, 634,
365 N.W.2d 443, 447 (1985), quoting Wilson & Co., Inc. v.
Fremont Cake & Meal Co., 153 Neb. 160, 43 N.W.2d 657
(1950) (ellipsis in original). “‘“If a party by his own contract
creates a duty or imposes a charge on himself, he must under
any and all conditions substantially comply with the undertak-
ing.”’” Id.
The district court erred in engaging in a comparison of
the benefits and burdens of performance. Its consideration of
burdens should have extended no further than a determination
whether the burdens were foreseeable or self-inflicted. Such
an analysis of hardship would have revealed that Four H’s and
Western’s burdens were both foreseeable and self-inflicted,
and therefore did not provide a reason to excuse Four H and
Western from their obligation to restore the property to its
original topography. See Mohrlang v. Draper, supra.
Specific 	performance 	was 	an 	appropriate 	remedy 	for
Four H’s and Western’s breach, and the district court should
have ordered it. We reverse the judgment of the district court

TIERNEY v. FOUR H LAND CO. 	601
Cite as 288 Neb. 586
and remand the cause with direction to order Four H and
Western to
return the topography to its natural condition of a largely
level field of approximately 2[,]770 feet elevation on the
west side, gently sloping to an elevation of approximately
2[,]765 feet on the east side, leaving a kidney-shaped lake
of approximately 11 acres of surface area in the middle
of the property and then cover the areas, other than the
11-acre [lake], with a minimum of 4 inches of topsoil and
plant native grasses.
oTHer assignmenTs of error
[11] Because we have determined that the district court’s
decision not to order specific performance should be reversed,
we need not address the remaining assignments of error.
An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy
before it. Carey v. City of Hastings, 287 Neb. 1, 840 N.W.2d
868 (2013).
CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court denying specific performance and remand the
cause with direction to enter an order of specific performance.
reversed and remanded WiTH direCTion.
Cassel, J., not participating.