Hongsermeier v. Devall

would occur in the litigation process if interlocutory appeals
were allowed from every discovery order which claimed to
implicate privilege.
In the instant case, the Seebas cannot meet the third condition
of the collateral order doctrine, i.e., that the order is effectively
unreviewable upon final judgment. Once a final determination
of the merits of the case has been decided, the Seebas can
appeal the imposition of attorney fees and expenses at that time,
and if the appellate court determines that an error was made,
the remedies available to the Seebas after appeal from a final
judgment are sufficient to adequately protect their interests.
Therefore, this appeal is not reviewable under the collateral
order doctrine.
CONCLUSION
Having found that no final order exists in the instant case
and the appeal is not reviewable under the collateral order doc-
trine, we lack jurisdiction over this appeal. Thus, the appeal
is dismissed.
appeaL diSmiSSed .
J ennifer Lynn hongSermeier , appeLLee , v .
ronaLd d. devaLL and tonya L. devaLL,
huSband and wife , appeLLantS.
744 N.W.2d 481
Filed February 5, 2008. 	No. A-06-521.
1. Specific Performance: Equity: Appeal and Error. An action for specific per-
formance sounds in equity, and on appeal, an appellate court tries factual questions
de novo on the record and, as to questions of both fact and law, is obligated to
reach a conclusion independent from the conclusion reached by the trial court.
2. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no genuine issue as to any
material fact or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
HONGSerMeIer v. DeVALL 	379
Cite as 16 Neb. App. 379
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

4. Contracts: Conveyances: Real Estate: Options to Buy or Sell. A right of first
refusal, rather than an option to purchase real estate, is created by an agreement
which (1) contains no terms or conditions of sale; (2) fails to indicate that the
party interested in purchasing real estate has an absolute right to demand conveyance
of the property at any time prior to the owner’s decision to sell it; and (3) imple-
ments the word “first” to indicate that if the owner decides to sell the real estate, he
or she is compelled to offer it first to the other party to the agreement.
5. Real Estate: Vendor and Vendee: Consideration: Notice: Words and Phrases.
A good faith purchaser of land is one who purchases for valuable consideration
without notice of any suspicious circumstances which would put a prudent person
on inquiry.
6. Real Estate: Vendor and Vendee: Equity. The general rule is that a purchaser
of real estate takes subject to outstanding equitable interests in the property,
which are enforceable against him to the same extent they are enforceable
against the vendor, where the purchaser is not entitled to protection as a bona
fide purchaser.
7. Real Estate: Vendor and Vendee: Consideration: Notice: Proof. The burden
of proof is upon a litigant who alleges that he or she is a good faith purchaser
to prove that he or she purchased the property for value and without notice; this
burden includes proving that the litigant was without notice, actual or constructive,
of another’s rights or interest in the land.
8. Real Estate: Vendor and Vendee: Claims: Notice. To qualify as a bona fide
purchaser of land, one must actually have paid the purchase money before he or
she received notice of a claim against the land.
9. Specific Performance: Proof. A party seeking specific performance must show
his or her right to the relief sought, including proof that the party is ready, able,
and willing to perform his or her obligations under the contract.
10. Summary Judgment: Proof. A party moving for summary judgment must make
a prima facie case by producing enough evidence to demonstrate that the movant
is entitled to judgment if the evidence were uncontroverted at trial.
11. ____: ____. Once the moving party makes a prima facie case, the burden to
produce evidence showing the existence of a material issue of fact that prevents
judgment as a matter of law shifts to the party opposing the motion.
12. Improvements: Equity: Proof. As a general rule, in order that one may recover
compensation for improvements made on another’s land, as equitable relief, three
concurrent elements must be shown to exist: (1) The occupant must have made
the improvements in good faith; (2) he must have been in possession, actual or
constructive, adversely to the title of the true owner; and (3) his possession must
have been held under color or claim of title.
13. Improvements: Title: Notice. An occupant of land is not a possessor in good
faith and hence is not entitled to compensation for improvements which he makes
thereon after he has notice or knowledge that his title is defective, or notice or
knowledge of an adverse title or claim to the property in another.
Appeal from the District Court for Hamilton County: michaeL
owenS, Judge. Affirmed.
380 	16 NeBrASkA APPeLLATe rePOrTS

Patrick A. Brock, of Cunningham, Blackburn, Francis, Brock
& Cunningham, for appellants.
Tanya J. Janulewicz, of Leininger, Smith, Johnson, Baack,
Placzek, Steele & Allen, for appellee.
irwin , S ieverS, and moore, Judges.
moore, Judge.
INTrODUCTION
ronald D. Devall and Tonya L. Devall, husband and wife,
appeal from an order of the district court for Hamilton County,
which granted summary judgment in favor of Jennifer Lynn
Hongsermeier. The court found that Jennifer had a valid right
of first refusal with regard to any offer to purchase certain real
property and that the Devalls were not good faith purchasers
of the property in question. The court ordered the Devalls to
convey the property to Jennifer upon receipt from her of con-
sideration consistent with the terms of the right of first refusal.
For the reasons set forth herein, we affirm.
BACkGrOUND
In February 2003, Jennifer; her father, Ivan Hongsermeier;
and her uncle, Wayne Hongsermeier, entered into a memoran-
dum of understanding. The memorandum was apparently part of
an agreement between Ivan and Wayne to dissolve a partnership
between them. As part of the agreement, the tract of real estate
in Hamilton County that is subject to this lawsuit was conveyed
to Wayne. The conveyance to Wayne was subject to a 10-year
lease with Jennifer as lessee, which lease required Jennifer
to pay the real estate taxes on the property. Jennifer was also
granted a right of first refusal with respect to the real estate
as follows:
In the event that Wayne, or any person or persons claiming
from Wayne, receive a bona fide offer for the purchase of
their interest in the property described above and desire to
accept the same, they shall notify Jennifer, in writing, of
the receipt of such offer, and Jennifer shall have thirty (30)
days in which to notify the party desiring to sell his or her
HONGSerMeIer v. DeVALL 	381
Cite as 16 Neb. App. 379

interest in the subject property of her desire to purchase
the subject property upon the same terms and conditions
as the bona fide offer. In the event that Jennifer exercises
her right of first refusal within the time herein provided,
the party desiring to sell his or her interest in the subject
real estate shall convey marketable title to Jennifer upon
the same terms and conditions as the bona fide offer. In
the event that Jennifer does not exercise her right of first
refusal within the time provided hereinabove, the party
desiring to sell his or her interest in the subject property
may proceed to sell his or her interest in the subject real
estate pursuant to the terms and conditions of the bona fide
offer, without further restriction.
Wayne and Jennifer entered into a written 10-year farm lease
for the property on May 2. Jennifer’s right of first refusal was
also set forth in the farm lease. The memorandum of under-
standing was filed of record with the Hamilton County clerk on
November 22, 2004.
On October 15, 2004, Wayne entered into a purchase agree-
ment with David Dalton and Teresa Dalton for sale of the prop-
erty for $185,000. Wayne’s real estate broker, Melvin Meyer,
was made aware of Jennifer’s lease and right of first refusal at
the time. Jennifer was notified of this offer. Ultimately, Jennifer
did not have the financial resources to meet the Dalton offer,
but the Daltons still declined to complete the transaction due to
Jennifer’s existing leasehold interest.
On December 9, 2004, Wayne and the Devalls entered into
an agreement to purchase the property for $181,500. Under the
terms of the Devall agreement, closing was to occur on January
28, 2005. Prior to closing, the Devalls became aware of the
farm lease and the contents of the memorandum of understand-
ing. Because the Devalls were concerned about the leasehold
interest, they negotiated a lower price with Wayne of $160,000.
Jennifer’s attorney, Galen Stehlik, sent a letter to Meyer dated
January 27, 2005, which stated:
I wanted to communicate with you, in writing, and
advise you that Jennifer . . . did not exercise her right of
first refusal with the respect to [sic] real estate you have
382 	16 NeBrASkA APPeLLATe rePOrTS

listed for Wayne . . . . Accordingly, the right of First
refusal that appears in the matter of public record has not
been exercised, and the property can be sold without any
further reference to the right of First refusal.
On January 28, the Devalls closed the transaction and received
a joint tenancy warranty deed to the premises, which deed was
filed of record on February 1.
The Devalls sent Jennifer a letter, dated March 11, 2005,
demanding rent for the farm ground and informing Jennifer that
the Devalls would be making certain improvements to the prop-
erty. Between January 20 and March 31, the Devalls invested
approximately $31,000 in the property. Stehlik sent a letter to
the Devalls, dated March 29, 2005, notifying the Devalls of
Jennifer’s intention to exercise her right of first refusal.
Jennifer filed a complaint in the district court on April 7,
2005. Among other things, Jennifer alleged that the purchase
offer made by the Devalls was never presented to her; that
she never had an opportunity to respond to the Devall offer,
contrary to the memorandum of understanding; and that the
Devalls knew of the existence of Jennifer’s right of first refusal
but took no efforts to make their offer known to Jennifer.
Jennifer alleged that the Devalls purchased the property subject
to easements and restrictions of record and that her right of first
refusal constituted a restriction of record. Jennifer stated that
she had communicated to the Devalls her desire to purchase the
property under the same terms and conditions as those of their
offer to Wayne, but that the Devalls had refused to honor her
right of first refusal. Jennifer asked the court to find that her
right of first refusal constituted a restriction of record against
the real estate. Jennifer sought an order directing the Devalls
to convey title to Jennifer upon receipt of the consideration
offered by the Devalls to Wayne and quieting title to the prop-
erty in Jennifer. Jennifer also sought injunctive relief, which is
not relevant to the issues on appeal.
In an amended answer, filed February 17, 2006, the Devalls
alleged, among other things, that they were unaware of the
memorandum 	of 	understanding 	and 	that 	they 	relied 	upon
Stehlik’s representation that Jennifer was not exercising the
HONGSerMeIer v. DeVALL 	383
Cite as 16 Neb. App. 379

right of first refusal contained in the farm lease. The Devalls
also alleged that they had made improvements to the real prop-
erty which had increased its value and for which they should
be compensated through a lien on the property for the value of
the improvements.
Jennifer filed a motion for summary judgment on February
17, 2006, which motion was heard by the district court on
March 2. evidence submitted at the hearing included the depo-
sitions of Meyer (the real estate broker who brokered the trans-
action), Stehlik (Jennifer’s previous attorney), and Beverly Hess
(the real estate broker who represented the Devalls), as well
as certain deposition exhibits and affidavits of the parties. We
will set forth the evidence admitted at the hearing as it relates
to the question of whether the Devall offer was made known to
Jennifer prior to closing and the question of improvements made
on the property by the Devalls.
In an affidavit, Jennifer stated that she did not exercise her
right of first refusal with respect to the Dalton offer and that
during December 2004 and continuing through January 14,
2005, Wayne attempted to buy out Jennifer’s lease interest
in the property for a cash payment. No agreement was ever
reached between Jennifer and Wayne concerning a buyout of
the lease. Jennifer stated that she never discussed any need with
Stehlik or authorized Stehlik to provide a letter to Wayne’s real
estate agent regarding her right of first refusal. When Jennifer
received a copy of Stehlik’s letter to Meyer on January 28,
2005, she called Stehlik to question why the letter had been
prepared. Jennifer learned that the real estate had been sold to
someone other than the Daltons sometime after February 1, and
she averred that prior to that date, she had never been provided
with either verbal or written notification regarding a proposed
sale to someone other than the Daltons. Upon learning that the
real estate had been sold, Jennifer made inquiries to find out
the identity of the purchasers. Jennifer stated that she did not
receive any communication from Wayne, the Devalls, or any-
one on their behalf until the March 11 letter from the Devalls.
Finally, Jennifer stated that on January 28, and through the date
of her affidavit, February 15, 2006, she had the ability to exer-
cise a right of first refusal to purchase the real estate in question
384 	16 NeBrASkA APPeLLATe rePOrTS

“upon the same terms and conditions” as those upon which the
real estate was purchased by the Devalls.
Meyer testified by deposition. Meyer testified that Jennifer
was told that the Dalton contract had fallen through, but he
did not recall when she was told. Meyer testified that either he
or Wayne let Jennifer know, but Meyer did not recall telling
Jennifer himself. However, Meyer did not think that either he or
Wayne gave Jennifer notice of the second offer, the offer from
the Devalls. Meyer did not recall giving Stehlik a copy of the
Devall offer. Meyer thought he called Stehlik and requested a
letter, but he testified that he probably did not know whether
Stehlik knew that an offer for $181,500 had been received.
Meyer was unable to state whether Stehlik had been provided
a copy of an addendum to the Devall purchase agreement,
which addendum lowered the price to $160,000, prior to when
Stehlik wrote the letter to Meyer regarding Jennifer’s right of
first refusal. Meyer testified, in fact, that the final purchase
price between Wayne and the Devalls was not negotiated until
Stehlik’s letter had been received.
Upon cross-examination, Meyer testified that he gave notice
of the Devall offer to Wayne but that he did not give notice of
that offer to Jennifer. Meyer was asked specifically whether
he knew if Wayne told Jennifer that there was another offer.
Meyer responded that he doubted Wayne did so, because he did
not think that Wayne and Jennifer were speaking. Meyer did
not believe it necessary to notify Jennifer of the Devall offer,
because of the letter from Stehlik. Meyer testified that when
he called Stehlik, he asked whether every time there was an
offer on the property, “we had to go back to [Jennifer] and get
another right of refusal.” When asked whether he had asked
Stehlik to address any specific questions in the letter, Meyer
responded, “I just asked Stehlik if we had to go back every
time and if he’d give me a letter to that effect. And that’s what I
received.” Meyer confirmed his earlier testimony that he did not
think he told Stehlik that he was calling in reference to another
offer on the property. Meyer testified that in their conversation,
Stehlik did not tell him that Stehlik would have to check with
Jennifer before sending the letter. Meyer represented to the
HONGSerMeIer v. DeVALL 	385
Cite as 16 Neb. App. 379

Devalls, at the time of closing, that Stehlik’s letter “clear[ed]
up the problem.”
Stehlik also testified by deposition. Stehlik testified that
Jennifer provided him with a copy of the Dalton offer to pur-
chase the property for $185,000 and that Jennifer did not exer-
cise her right of first refusal with respect to the Dalton purchase
offer. Stehlik testified further that subsequently to the Dalton
offer, he was not advised of any other purchase offers on the
property. Stehlik specifically testified that he was not made
aware that the Daltons had backed out of their offer to purchase
the property. Concerning the telephone call he received from
Meyer, Stehlik stated that Meyer wanted him to “generate a
letter that said that Jennifer did not exercise her option or did
not exercise the right of first refusal as set forth in the lease.”
Testifying that Meyer called on January 27, 2005, Stehlik
stated, “He said he needed a letter indicating that Jennifer did
not exercise her right of first refusal. That’s all he said.” Stehlik
did not believe that Meyer discussed with him whether Jennifer
had to be contacted every time an offer was received. Stehlik
stated that neither Meyer nor Jennifer ever told him that there
was another offer on the property. Stehlik testified that when
Meyer called him, he assumed that the Dalton offer was the
only offer in existence and that Jennifer did not have the finan-
cial resources to meet that offer. Stehlik generated his letter to
Meyer based on this assumption. Stehlik testified that Meyer
had expressed some urgency in his conversation about the let-
ter and had indicated that he would pick the letter up from
Stehlik. Stehlik did not recall whether he spoke to Jennifer
before generating the letter, but he did testify that she called
him after receiving a copy of the letter. Stehlik testified that
he did not become aware of the Devall offer on the property
until sometime in February 2005, after the closing date. Stehlik
testified as to his understanding of Jennifer’s right of first
refusal, stating that he understood the documentation to require
that “any subsequent offer needed to first be run by Jennifer.”
Stehlik thought that he called Meyer in approximately March,
sometime after learning about the Devall offer, and that Meyer
“kind of gave the impression that he didn’t feel like he had to
keep on going back to Jennifer.”
386 	16 NeBrASkA APPeLLATe rePOrTS

Hess, the real estate broker who represented the Devalls, tes-
tified in her deposition that prior to the closing of the sale to the
Devalls, no one communicated to her anything to indicate that
Jennifer was not in agreement with waiving her right of first
refusal. Hess stated that Meyer represented that the letter from
Stehlik applied to the Devall transaction. Hess testified that
Jennifer called her after the closing and told Hess that Jennifer
had never given Stehlik permission to generate the letter to
Meyer. Hess and the Devalls became aware prior to closing that
Jennifer was a tenant on the property, but neither Hess nor the
Devalls contacted Jennifer prior to closing. Hess testified that
as soon as she found out about the right of first refusal, she
asked Meyer to obtain something to indicate that Jennifer was
signing off on the purchase. Hess agreed that the letter obtained
was not signed by Jennifer, but she testified that she trusted that
Jennifer’s attorney, Stehlik, had signed the letter. Hess did not
make a copy of the purchase agreement between the Devalls
and Wayne or the addendum to that agreement available to
Jennifer. Hess thought that information concerning the Devall
offer for $181,500 had been made available to Jennifer, but she
did not confirm that this was done.
An affidavit from ronald Devall was received into evidence.
ronald stated that on January 28, 2005, prior to closing, he
received a copy of the letter from Stehlik to Meyer indicating
that Jennifer did not wish to exercise her right of first refusal
with respect to the property. ronald stated that Meyer repre-
sented to him that Stehlik’s letter was in direct reference to the
Devall offer to purchase the property. ronald stated further that
he was never given any indication or acknowledgment from
anyone of Jennifer’s not having been aware of the Devall offer
to purchase the property and that the Devalls were assured by
Wayne and Meyer that the Stehlik letter satisfied their concerns
relative to the farm lease and the right of first refusal. With
these assurances, ronald assumed that Jennifer was aware of
the circumstances of the Devalls’ purchase of the property and
felt no further need to communicate with Jennifer personally.
Prior to closing, ronald was advised that Jennifer was aware
of the Dalton offer for $185,000, and he was advised by Wayne
prior to closing that Jennifer did not have the financial resources
HONGSerMeIer v. DeVALL 	387
Cite as 16 Neb. App. 379

to meet the Dalton offer and would not have the financial
resources to meet the $181,500 offer being submitted by the
Devalls. Wayne also advised ronald that once the Devalls pur-
chased the property, the Devalls could develop the property as
they wished without being in violation of the farm lease. ronald
stated that he purchased the property in order to construct some
additional buildings and to run his trucking business from the
property. ronald detailed the improvements he made on the
property between January 28, when he took possession of the
property, and March 31, when he received the letter indicating
that Jennifer wished to exercise her right of first refusal, and he
stated that the improvements cost approximately $31,117.63.
ronald stated that the improvements had increased the value
of the property in general and in particular had substantially
increased the value of the residence on the property. ronald
stated that the improvements were made under the assumption
that the Devalls were the lawful owners of the property.
The district court entered an order on April 5, 2006, grant-
ing Jennifer’s motion for summary judgment. The court found
that Jennifer possessed a valid right of first refusal on the
property in question and that the Devalls closed on the transac-
tion despite having actual and constructive notice of Jennifer’s
right. The court found that Wayne was required to notify
Jennifer in writing of the offer and give her an opportunity to
buy under the same terms, which, in this case, the court found
to be the amount of $160,000. The court found that the Devalls
were not good faith purchasers of the real estate. The court
addressed the Devalls’ contention that Jennifer was not entitled
to summary judgment because she did not have the ability to
complete the sale. The court noted Jennifer’s affidavit, wherein
Jennifer stated that on January 28, 2005, she did have the abil-
ity to purchase the property. The court found the statements
in the record that Jennifer did not have the financial ability to
complete a purchase under the terms of the Dalton agreement
to be irrelevant to the question of whether she had the ability
to make a purchase meeting the terms of the Devall offer. The
court granted Jennifer’s motion for summary judgment and
ordered the Devalls to convey the premises to Jennifer upon
receipt from her of $160,000. The court also stated that any
388 	16 NeBrASkA APPeLLATe rePOrTS

request for relief by any party not specifically granted by the
court’s order was denied. Subsequently, the Devalls perfected
their appeal to this court.
ASSIGNMeNTS OF errOr
The Devalls assert, consolidated and restated, that the dis-
trict court erred in (1) granting Jennifer’s motion for summary
judgment, (2) finding that Jennifer could acquire the prop-
erty for $160,000, and (3) failing to consider and address the
Devalls’ claim that their improvements to the property unjustly
enriched Jennifer.
STANDArD OF reVIeW
[1] An action for specific performance sounds in equity, and
on appeal, an appellate court tries factual questions de novo on
the record and, as to questions of both fact and law, is obligated
to reach a conclusion independent from the conclusion reached
by the trial court. Langemeier v. Urwiler Oil & Fertilizer, 265
Neb. 827, 660 N.W.2d 487 (2003).
[2,3] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate inferences
that may be drawn from those facts and that the moving party
is entitled to judgment as a matter of law. Johnson v. Knox Cty.
Partnership, 273 Neb. 123, 728 N.W.2d 101 (2007). In review-
ing a summary judgment, an appellate court views the evidence
in the light most favorable to the party against whom the judg-
ment is granted and gives such party the benefit of all reason-
able inferences deducible from the evidence. Id.
ANALYSIS
Jennifer’s Right of First Refusal.
[4] A right of first refusal, rather than an option to purchase
real estate, is created by an agreement which (1) contains no
terms or conditions of sale; (2) fails to indicate that the party
interested in purchasing real estate has an absolute right to
demand conveyance of the property at any time prior to the
owner’s decision to sell it; and (3) implements the word “first”
to indicate that if the owner decides to sell the real estate, he
or she is compelled to offer it first to the other party to the
HONGSerMeIer v. DeVALL 	389
Cite as 16 Neb. App. 379

agreement. Winberg v. Cimfel, 248 Neb. 71, 532 N.W.2d 35
(1995). The parties do not question that what was created in the
memorandum of understanding and the farm lease was a right of
first refusal. The right created provides that if Wayne received
an offer for purchase of his interest in the property which he
wanted to accept, he was required to notify Jennifer in writing
of the offer, after which notification Jennifer would have 30
days in which to exercise her right under the same terms and
conditions as those of the offer. Although there is some dispute
in the record as to whether Jennifer was aware prior to January
28, 2005, that the Daltons were no longer interested in purchas-
ing the property, the record contains no evidence to suggest
that Wayne presented either of the Devall offers to Jennifer,
orally or in writing, at any time prior to January 28. There is no
dispute in the record that the Devalls, Hess, and Meyer did not
inform Jennifer of the Devall offer. Although Meyer requested
a letter from Stehlik concerning Jennifer’s exercise of her right,
the record shows that Meyer did not inform Stehlik his request
was in reference to the Devall offer and shows that Stehlik did
not communicate with Jennifer prior to drafting and sending out
the letter. While the Devalls may have relied on Stehlik’s letter
and the assurances of Meyer and Wayne in closing the transac-
tion, without evidence that the Devall offer had been presented
to Jennifer, Stehlik’s letter did not act as an effective waiver of
Jennifer’s right relative to the Devall offer. The district court
found no genuine issue of material fact concerning Jennifer’s
entitlement to be notified of the Devall offer and the lack of
notice to her, and we find no error in this finding.
Devalls Were Not Good Faith Purchasers.
[5] The district court determined that the Devalls were not
good faith purchasers of the real property. A good faith pur-
chaser of land is one who purchases for valuable consideration
without notice of any suspicious circumstances which would
put a prudent person on inquiry. Caruso v. Parkos, 262 Neb.
961, 637 N.W.2d 351 (2002).
[6] The Nebraska Supreme Court has stated, “‘The general
rule is that a purchaser of real estate takes subject to outstand-
ing equitable interests in the property, which are enforceable
390 	16 NeBrASkA APPeLLATe rePOrTS

against him to the same extent they are enforceable against the
vendor, where the purchaser is not entitled to protection as a
bona fide purchaser . . . .’” Winberg v. Cimfel, 248 Neb. at 80,
532 N.W.2d at 41, quoting Westpark, Inc. v. Seaton Land Co.,
225 Md. 433, 171 A.2d 736 (1961).
Where the holder of an option exercises his or her rights
thereunder and makes a purchase of real estate covered by
the option, his or her act will relate back to the time of
giving the option so as to cut off the rights of all persons
who, with knowledge of the option, acquired subsequent
interests in the land. Therefore, a holder of an option to
purchase real property, given for a valuable consideration
and duly accepted, may, under the prevailing rule, main-
tain a suit for specific performance against one purchasing
the property with notice of the option.
Specific performance will not, however, be decreed
against third persons who become purchasers for value
of 	property 	in 	ignorance 	of 	the 	option 	or 	contract.
Furthermore, an option to purchase lands, unsupported by
a valuable consideration, is not an interest therein which a
purchaser for value is bound to notice or which equity will
regard, and the want of mutuality may be urged as a bar to
its specific enforcement.
71 Am. Jur. 2d Specific Performance § 188 at 200 (2001). See,
also, Beard v. Morgan, 143 Neb. 503, 512, 10 N.W.2d 253,
258 (1943) (“‘[a] purchaser with notice is liable to the same
equity, stands in his place, and is bound to do that which the
person he represents would be bound to do by the decree. He
takes the estate subject to the charge, and stands in the place of
his vendor’”).
[7,8] The burden of proof is upon a litigant who alleges that
he or she is a good faith purchaser to prove that he or she pur-
chased the property for value and without notice; this burden
includes proving that the litigant was without notice, actual or
constructive, of another’s rights or interest in the land. Caruso v.
Parkos, supra. To qualify as a bona fide purchaser of land, one
must actually have paid the purchase money before he or she
received notice of a claim against the land. Winberg v. Cimfel,
248 Neb. 71, 532 N.W.2d 35 (1995). It is uncontradicted that
HONGSerMeIer v. DeVALL 	391
Cite as 16 Neb. App. 379

the Devalls became aware of Jennifer’s right of first refusal
prior to the January 28, 2005, closing date. Accordingly, the
Devalls were not good faith purchasers and were bound by
Jennifer’s right of first refusal. See id.
Jennifer’s Exercise of Right of First Refusal.
The Devalls argue that there are issues of material fact con-
cerning the terms under which Jennifer could exercise her right.
We disagree. The record is clear that Wayne initially accepted
the Devall offer to purchase the property for $181,500, but that
when he was unable to buy out the farm lease held by Jennifer,
he agreed to give the Devalls a credit of $21,500 at the time of
closing in return for accepting the terms of the existing farm
lease. In other words, in exchange for not having to buy out the
farm lease, Wayne agreed to accept a purchase price in terms
of actual dollars received of $160,000. The district court found
that the terms of the Devall offer were for a purchase price of
$160,000 and that Jennifer should be given the opportunity
to purchase the property under those terms. The right of first
refusal given to Jennifer specifies that she be given the right to
purchase Wayne’s interest in the property under the same terms
and conditions as those of any offer accepted by Wayne for the
sale of his interest in the property. even if Jennifer had been
notified of the $181,500 offer and had chosen not to exercise
her option relative to that offer, she still was entitled to notice
of the $160,000 offer and had the right to exercise her option
relative to that offer as well. We find no error in the district
court’s findings as to the terms under which Jennifer could
exercise her right of first refusal.
[9-11] The Devalls present certain arguments as to whether
there are issues of material fact concerning Jennifer’s finan-
cial ability to perform under the right of first refusal. A party
seeking specific performance must show his or her right to the
relief sought, including proof that the party is ready, able, and
willing to perform his or her obligations under the contract.
Langemeier v. Urwiler Oil & Fertilizer, 265 Neb. 827, 660
N.W.2d 487 (2003). In her affidavit, Jennifer stated that on
January 28, 2005, and through the date of her affidavit, she
had the ability to exercise her right of first refusal under the
392 	16 NeBrASkA APPeLLATe rePOrTS

terms and conditions of the Devall offer. A party moving for
summary judgment must make a prima facie case by producing
enough evidence to demonstrate that the movant is entitled to
judgment if the evidence were uncontroverted at trial. Pogge v.
American Fam. Mut. Ins. Co., 272 Neb. 554, 723 N.W.2d 334
(2006). Once the moving party makes a prima facie case, the
burden to produce evidence showing the existence of a material
issue of fact that prevents judgment as a matter of law shifts
to the party opposing the motion. Id. The Devalls presented no
direct evidence to contradict the assertion in Jennifer’s affida-
vit, only pointing to evidence that Jennifer was unable to meet
the financial requisites of the Dalton offer. We agree with the
district court’s conclusion that Jennifer’s financial inability to
purchase the property at the time of the Dalton offer under the
terms of the Dalton offer is irrelevant to the question of whether
in January 2005 she was financially able to complete a purchase
under the terms of the Devall offer.
Viewing the evidence in the light most favorable to the
Devalls and giving them the benefit of all reasonable inferences
deducible from the evidence, as we must, we conclude that
the district court did not err in granting summary judgment in
Jennifer’s favor.
Improvements Made by Devalls.
The Devalls assert that the district court erred in failing to
consider and address their claim that their improvements to the
property unjustly enriched Jennifer. Although the court’s sum-
mary judgment order did not specifically address this claim by
the Devalls, the court indicated that it was denying any request
for relief not specifically granted by its order.
[12,13] As a general rule, in order that one may recover com-
pensation for improvements made on another’s land, as equita-
ble relief, three concurrent elements must be shown to exist: (1)
The occupant must have made the improvements in good faith;
(2) he must have been in possession, actual or constructive,
adversely to the title of the true owner; and (3) his possession
must have been held under color or claim of title. Williams v.
Beckmark, 150 Neb. 100, 33 N.W.2d 352 (1948). An occupant
of land is not a possessor in good faith and hence is not entitled
HONGSerMeIer v. DeVALL 	393
Cite as 16 Neb. App. 379

to compensation for improvements which he makes thereon
after he has notice or knowledge that his title is defective, or
notice or knowledge of an adverse title or claim to the property
in another. See id. See, also, Neb. rev. Stat. § 76-301 et seq.
(reissue 2003) (enacted with respect to occupying claimants).
Because the Devalls made the improvements with knowledge
of the lease and right of first refusal, they were not entitled to
recover on their claim. We find no error in the denial of the
Devalls’ claim for compensation for improvements made to
the property.
CONCLUSION
The district court did not err in granting summary judgment
in Jennifer’s favor or in denying the Devalls’ claim with respect
to improvements made to the property.
affirmed .
keLLi d. hoLLing , appeLLee , v .
tony L. hoLLing , appeLLant .
744 N.W.2d 479
Filed February 5, 2008. 	No. A-07-065.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in con-
nection with which an appellate court has an obligation to reach an independent,
correct conclusion irrespective of the determination made by the court below.
2. Courts: Trial: Evidence: Dismissal and Nonsuit. After submission, a trial court
has no authority to dismiss a case without prejudice on the basis that a plaintiff
has failed to produce sufficient evidence to sustain his or her claims.
Appeal from the District Court for Dawson County: J ameS e.
doyLe iv, Judge. Affirmed as modified.
Douglas Pauley and Chris A. Johnson, of Conway, Pauley &
Johnson, P.C., for appellant.
No appearance for appellee.
inbody, Chief Judge, and carLSon and caSSeL, Judges.
394 	16 NeBrASkA APPeLLATe rePOrTS