Jones v. Stahr

2003, hearing shows that the hearing was not intended solely
to address the issue of Brock’s attorney’s lien, is not persua-
sive. Regardless of why Chief’s lawyer was there, Holmes was
not there and could not be bound by what his former lawyer
told the judge, which would not be evidence in any event.
Moreover, the pleading generating the hearing, Brock’s motion
for approval of an attorney’s lien, quite obviously “sets the
agenda” for the hearing—which was only Brock’s entitlement
to an attorney’s lien. Whether Holmes and Chief had agreed to
a modification of Holmes’ running award of TTD, which agree-
ment should be approved at the hearing under § 48-141(1), was
not noticed for hearing, and no evidence was introduced at the
hearing on that subject.
Therefore, because no agreement existed between Holmes
and Chief regarding a modification of the March 22, 2000,
award, we find that the compensation court erred when it found
that such a modification had occurred.
CONCLUSION
For the reasons stated above, we reverse the compensa-
tion court’s finding that the October 24, 2003, order modi-
fied the March 22, 2000, award. We remand this cause to the
compensation court review panel with directions to vacate its
dismissal of Holmes’ appeal and for such panel to remand the
cause to the trial judge for further proceedings consistent with
this opinion.
R eveRsed and Remanded with diRections .
wesley J. J ones , an individual , appellee , v . daniel F. stahR
and G eoRGia a. stahR, husband and wiFe , appellants ,
theRese doRenbach , appellee , and laRRy coFFey ,
inteRvenoR- appellant .
746 N.W.2d 394
Filed March 25, 2008. 	No. A-06-572.
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.
596 	16 NeBRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

2. Specific Performance: Appeal and Error. When considering an appeal in an
action for specific performance, an appellate court will resolve questions of fact
and law independently of the trial court’s conclusions.
3. Equity: Appeal and Error. In reviewing an equity action, when credible evi-
dence is in conflict on material issues of fact, the court may consider and give
weight to the fact that the trial court observed the witnesses and accepted one
version of the facts over another.
4. Contracts: Offers to Buy or Sell. A right of first refusal has no binding effect
unless the offeror decides to sell.
5. Contracts: Options to Buy or Sell: Assignments. The option holder’s rights in
an option supported by consideration are assignable in the absence of any words
of assignability, except, of course, where the nature or terms of the option bring
it within some recognized exception.
6. Contracts: Real Estate: Offers to Buy or Sell. Acceptance of an offer to buy or
sell real estate must be an unconditional acceptance of the offer as made; other-
wise, no contract is formed; and there must be no substantial variation between
the offer and the acceptance, since if such acceptance differs from the offer or is
coupled with any condition that varies or adds to it, it is not an acceptance, but
a counterproposition.
Appeal 	from 	the 	District 	Court 	for 	Lancaster 	County:
J eFFRe 	cheuvRont, 	Judge. 	Reversed 	and 	remanded 	with
direction.
William G. Blake and Jason L. Scott, of pierson, Fitchett,
Hunzeker, 	Blake 	& 	katt, 	for 	appellants 	and 	intervenor-
appellant.
Shannon R. Harner and Susan M. Napolitano, of Hoppe &
Harner, L.L.p., for appellee Wesley J. Jones.
Darrell 	k. 	Stock, 	of 	Snyder 	& 	Stock, 	for 	appellee
Therese Dorenbach.
inbody, Chief Judge, and caRlson and cassel, Judges.
cassel, Judge.
INTRODUCTION
This appeal addresses whether a right of first refusal to pur-
chase real estate remains personal in nature after the seller has
decided both to sell the entire remaining property and to accept
the terms and conditions specified by a potential buyer. We
conclude that upon the concurrence of these events, the right
of first refusal ripens into an option. Because such options are
JONeS v. STAHR 	597
Cite as 16 Neb. App. 596

ordinarily assignable, a provision in the option holder’s accept-
ance reserving the right to assign does not constitute a material
deviation. We reverse, and remand with direction.
BACkGROUND
The relevant facts are not in dispute. On February 14, 1998,
Therese Dorenbach entered into an agreement with Daniel
F. Stahr and Georgia A. Stahr, husband and wife, for the
sale of Dorenbach’s real property at 7800 N.W. 70th Street,
Malcolm, Nebraska. The purchase agreement contained the
following language:
Buyer [the Stahrs] acknowledges that Seller [Dorenbach]
has previously granted to Gary Aerts a right of first refusal
to fifteen (15) acres adjacent to property. . . . However,
subject to that right of first refusal held by Gary Aerts,
Seller [Dorenbach] does grant a subordinate right of
first refusal to Buyer [the Stahrs] on the land retained by
Seller [Dorenbach], comprising approximately one hun-
dred twenty seven (127) acres, more or less.
On or about April 17, the Stahrs took title to the property at
7800 N.W. 70th Street.
On or about June 14, 2005, Dorenbach listed her remain-
ing property, located at 7900 N.W. 70th Street, with a real
estate broker. The broker sent a letter to the Stahrs telling them
that Dorenbach had listed the property and that once an offer
came in, they would be given 24 hours to match or exceed the
purchase price.
On June 27, 2005, Wesley J. Jones submitted an offer to
Dorenbach to purchase the property. Jones offered Dorenbach
$550,000 for the property, and his offer was conditioned upon
his ability to obtain a $400,000 loan. On June 28, Dorenbach
accepted Jones’ offer. The next day, Swanson telephoned the
Stahrs and provided them with a copy of Jones’ purchase offer.
On the morning of June 30, the Stahrs’ agent delivered a pur-
chase agreement, dated June 29, 2005, to Dorenbach stating
that they wished to purchase the property for the same price. In
the Stahrs’ agreement, they stated that they would be paying the
purchase price entirely in cash, and the Stahrs inserted the fol-
lowing language in an addendum to their purchase agreement:
598 	16 NeBRASkA AppeLLATe RepORTS

“Buyer [the Stahrs] reserves the right to assign this contract to
a third party prior to closing.”
In a letter dated July 20, 2005, Dorenbach’s attorney informed
the Stahrs that their offer was not acceptable, given that the
offer provided for the Stahrs to be able to assign the contract to
a third party prior to closing. Specifically, the letter states:
When this was entered into, [Dorenbach] intended the
right of refusal to be personal to you and she is not will-
ing to allow it to be assigned in any manner. [Dorenbach]
is also bothered by the fact that your purchase agree-
ment indicates that the payment will be “all cash,” yet it
has come to our attention that there will be a loan from
Hastings State Bank which has some contingencies.
The letter also states that Dorenbach had received a revised
offer from Jones, and it told the Stahrs they had 24 hours within
which to agree to or exceed the terms of Jones’ second offer.
The Stahrs then notified Dorenbach that they would stand on
the exercise of their right of first refusal made in response to
Jones’ initial offer and that they were ready, willing, and able
to close on the purchase of the property. The record shows that
Dorenbach did not sell the property to Jones or the Stahrs, but
that Gary Aerts exercised his right of first refusal and purchased
15 acres from Dorenbach.
On August 31, 2005, Jones filed his complaint against the
Stahrs and Dorenbach seeking declaratory judgment determin-
ing the rights and duties of the parties under the contracts. The
Stahrs filed an answer, counterclaim, and cross-claim seek-
ing to enforce their offer to purchase Dorenbach’s property.
Subsequently, the Stahrs assigned any rights they had to pur-
chase Dorenbach’s property to Larry Coffey and Coffey filed a
complaint in intervention in the action. Dorenbach’s amended
cross-claim and counterclaim alleges that the right of first
refusal was personal to the Stahrs, and Dorenbach sought to
have the Stahrs’ right of first refusal declared invalid.
Trial was held on March 28, 2006. Dorenbach testified that
when negotiating with Daniel in 1998 for the sale of her land at
7800 N.W. 70th Street, Daniel brought up the idea of the right
of first refusal. Dorenbach stated that Daniel indicated that he
wanted the right of first refusal for himself. Dorenbach testified
JONeS v. STAHR 	599
Cite as 16 Neb. App. 596

that she and Daniel did not discuss the Stahrs’ ability to assign
the right. Dorenbach testified that she gave the Stahrs the first
right of refusal “on the feeling that in good faith it was for
[Daniel] and [Daniel] only.” Dorenbach testified that she would
not have agreed to the right of first refusal if it had contained
language allowing the right to be assigned. Dorenbach testified
that she granted Aerts a right of first refusal to 15 acres of her
property because Aerts, her neighbor, told her that he wanted
to buy additional property adjacent to his own so that no one
could build close to his property.
Dorenbach stated that in the 1998 purchase agreement with
the Stahrs, she included a provision stating that the Stahrs were
granted the right to hunt on Dorenbach’s land. The provision
states, “Buyer [the Stahrs] understands that this right to hunt
is not exclusive and other hunters, including but not limited
to family members of Seller [Dorenbach], will be hunting on
Seller’s [Dorenbach’s] adjacent land at various times.” The 1998
agreement also states that the Stahrs asked to erect a sign on
Dorenbach’s land at the northeast corner of the intersection of
N.W. 70th Street and U.S. Highway 34, and Dorenbach agreed,
but the agreement stated, “This right is specific to the current
Buyer [the Stahrs] and is not assignable or transferrable.”
Daniel testified that he spoke to Dorenbach’s son about the
right of first refusal and mentioned that he wanted to have the
option to purchase the property adjacent to the land he pur-
chased from Dorenbach in 1998 if he could afford it. Daniel
testified that he and Dorenbach never discussed whether the
right of first refusal would be assignable. Daniel testified that
the Stahrs intended their June 29, 2005, offer to purchase
Dorenbach’s property to meet the terms of Jones’ offer without
significantly varying from those terms. Daniel testified that he
remained ready, willing, and able to do what is necessary to
close on the purchase of Dorenbach’s property on the terms of
the June 29 purchase offer.
In an order filed April 24, 2006, the trial court dismissed
Jones from the action, stating that he lacked standing to chal-
lenge the Stahrs’ exercise of the right of first refusal. The court
found in favor of Dorenbach, granting her amended cross-claim
and counterclaim and stating that the Stahrs’ offer to purchase
600 	16 NeBRASkA AppeLLATe RepORTS

dated June 29, 2005, was an invalid exercise of the Stahrs’
right of first refusal. The court dismissed the Stahrs’ and
Coffey’s claims.
In doing so, the trial court stated:
The inescapable conclusion is that Dorenbach granted the
rights of first refusal to Aerts and the Stahrs to allow them
to acquire the land adjacent to their homes rather than
have the land be acquired by a third party. In other words,
these rights of first refusal permitted Aerts and the Stahrs
to have some control over the ownership of the land adja-
cent to their homes. The court finds that the right of first
refusal was personal to the Stahrs and was not assignable.
Therefore, when their June 29, 2005 offer to purchase
included the provision for assignment, this constituted a
material deviation from the offer by Jones and it is not
binding upon Dorenbach.
The Stahrs and Coffey appeal.
ASSIGNMeNTS OF eRROR
On appeal, the Stahrs and Coffey argue that the trial court
erred (1) in finding that the right of first refusal granted to the
Stahrs was personal and could not be assigned and in basing
its decision on testimony from Dorenbach, (2) in finding that
the Stahrs did not have a valid and enforceable agreement to
purchase the property from Dorenbach because they inserted
language into the purchase agreement reserving their right to
assign their interest in the agreement prior to closing, and (3)
in finding that the Stahrs’ exercise of their right of first refusal
was invalid because it was a material deviation from the offer
made by Jones.
STANDARD OF ReVIeW
[1-3] An action for specific performance sounds in equity,
and on appeal, an appellate court decides factual questions
de novo on the record. See Mogensen v. Mogensen, 273 Neb.
208, 729 N.W.2d 44 (2007). When considering an appeal in
an action for specific performance, an appellate court will
resolve questions of fact and law independently of the trial
court’s conclusions. See id. In reviewing an equity action, when
JONeS v. STAHR 	601
Cite as 16 Neb. App. 596

credible evidence is in conflict on material issues of fact, the
court may consider and give weight to the fact that the trial
court observed the witnesses and accepted one version of the
facts over another. See id.
ANALYSIS
Right of First Refusal.
On appeal, the Stahrs and Coffey argue that the trial court
erred in finding that the right of first refusal granted to the Stahrs
by Dorenbach was personal in nature and could not be assigned.
Dorenbach disagrees and cites Schupack v. McDonald’s System,
Inc., 200 Neb. 485, 264 N.W.2d 827 (1978), in support of her
position. Although generally the law supports assignability of
rights, it does not permit assignments for matters of personal
trust or confidence, or for personal services. See id.
The district court recognized that in the absence of lan-
guage indicating that a right of first refusal is assignable or
would pass to the grantee’s heirs, the right is personal. As the
Maryland Court of Appeals explained in Park Station v. Bosse,
378 Md. 122, 835 A.2d 646 (2003), rights of first refusal are
presumed to be personal and are not ordinarily construed as
transferable or assignable unless the particular clause granting
the right refers to successors or assigns or the instrument other-
wise shows that the right was intended to be transferable or
assignable. The opinion of the Maryland court cites numerous
supporting cases from many jurisdictions. Accord, 77 Am. Jur.
2d Vendor and Purchaser § 34 (2006); Jonathan F. Mitchell,
Can a Right of First Refusal Be Assigned?, 68 U. Chi. L. Rev.
985 (2001); 3 eric Mills Holmes, Corbin on Contracts § 11.15
(Joseph M. perillo ed., rev. ed. 1996).
Although many of the decisions from other jurisdictions
presume the right is personal in order to avoid a conflict with
the rule against perpetuities, other reasons also support the
rule. For example, the court in Old Nat’l Bank v. Arneson, 54
Wash. App. 717, 776 p.2d 145 (1989), explained that the holder
of a right of first refusal holds only a general contract right to
acquire a later interest in real estate should the property owner
decide to sell. In that event, a new contract ensues under which
the preemptive holder may receive an interest in land.
602 	16 NeBRASkA AppeLLATe RepORTS

Significance of Decisions to Sell and to Accept Terms.
While the district court focused on the nature of the right of
first refusal prior to Dorenbach’s decisions to sell the remain-
ing real estate and to accept the terms of Jones’ offer, the court
overlooked these decisions. Once Dorenbach determined to
sell and found Jones’ offer acceptable, the Stahrs’ right of first
refusal ripened into an option contract.
[4] In Winberg v. Cimfel, 248 Neb. 71, 532 N.W.2d 35
(1995), the Nebraska Supreme Court relied upon the distinc-
tion between an option and a right of first refusal discussed in
a treatise by Samuel Williston. As the court noted, a right of
first refusal has no binding effect unless the offeror decides to
sell. “The ‘right of first refusal’ or ‘preemption’ is conditioned
upon the willingness of the owner to sell; it can be enforced by
specific performance where such willingness can be proved.” 25
Samuel Williston, A Treatise on the Law of Contracts § 67:85
at 503-04 (Richard A. Lord ed., 4th ed. 2002). Stated another
way, “the right is subject to an agreed condition precedent,
typically the owner’s receipt of an offer from a third party and
the owner’s good-faith decision to accept it.” 3 Holmes, supra,
§ 11.3 at 470.
“[T]he occurrence of these events (owner’s receipt of an
offer and the good-faith decision to accept it) satisfies the con-
dition precedent, which ‘triggers’ the right of first refusal that
‘ripens’ into an option.” Id. at 470-71. See, e.g., Smith v. Hevro
Realty Corp., 199 Conn. 330, 507 A.2d 980 (1986).
[5] “In nearly all jurisdictions the option holder’s rights in an
option supported by consideration are assignable in the absence
of any words of assignability, except of course, where the
nature or terms of the option bring it within some recognized
exception.” 3 Holmes, supra, § 11.15 at 586.
We do not read the decision of the Nebraska Supreme
Court in Schupack v. McDonald’s System, Inc., 200 Neb.
485, 264 N.W.2d 827 (1978), as inconsistent with the law of
other jurisdictions. In Schupack, the plaintiffs brought suit
against McDonald’s Corporation and McDonald’s System, Inc.
(collectively McDonald’s), seeking a declaratory judgment to
determine the respective rights and obligations of the parties
under a right of first refusal originally granted by McDonald’s
JONeS v. STAHR 	603
Cite as 16 Neb. App. 596

to Bernard L. Copeland. The plaintiffs contended that the right
of first refusal was transferred and conveyed to them in 1964
by Copeland and his partner when they sold all their inter-
est in various McDonald’s franchises in Omaha, Nebraska,
and Council Bluffs, Iowa, to the plaintiffs. In other words,
the assignment occurred before McDonald’s had decided to
develop additional locations. Moreover, as we observe below,
the Schupack decision was driven by the continuing nature of
the franchise relationship.
The right of first refusal in Schupack allowed the possessor of
the right of first refusal to acquire additional McDonald’s fran-
chises which might be developed in the future by McDonald’s
in the Omaha-Council Bluffs area. The suit arose because
McDonald’s granted a franchise in Bellevue, Nebraska, to some-
one other than the plaintiffs. The district court determined that
the right of first refusal was not personal to Copeland and his
partner, but that the Omaha area did not encompass Bellevue.
McDonald’s appealed, and the plaintiffs cross-appealed.
The Supreme Court held that the right of first refusal was
intended to be personal in nature to Copeland and could not be
transferred or assigned without the consent of McDonald’s and
that McDonald’s had not consented to a transfer of the right
of first refusal from Copeland to the plaintiffs. Therefore, the
Supreme Court held that the plaintiffs possessed no right of
first refusal to additional McDonald’s franchises in the Omaha-
Council Bluffs area and dismissed the plaintiffs’ action.
In doing so, the Supreme Court noted that whether a right
of first refusal is personal and thus not assignable without the
consent of the grantor is to be resolved by ascertaining the
intent of the parties to the transaction. Additionally, the court
stated that the intention of the parties is to be ascertained from
the contract, its nature, and the attending circumstances. Id.
The Schupack decision addressed franchise rights rather than
an interest in real estate. A poorly managed franchise can stain
the reputation of the remainder of a nationwide chain of such
businesses. The relationship between franchisor and franchisee
is usually continuing in nature.
On the other hand, where the seller is disposing of his or
her entire interest in real estate, the decision to sell severs any
604 	16 NeBRASkA AppeLLATe RepORTS

such continuing relationship. Dorenbach does not argue that
she would have any continuing relationship to the property
or to the Stahrs after the sale was completed. We assume that
prior to any decision by Dorenbach to sell the real estate, the
right of first refusal remained personal to the Stahrs. But once
she decided both to sell the real estate and to accept the terms
of Jones’ offer, the Stahrs’ right of first refusal ripened into
an option. The Stahrs exercised the option by tendering their
acceptance to Dorenbach.
Material Deviation.
The Stahrs and Coffey argue that the trial court erred in find-
ing that the Stahrs did not have a valid and enforceable agree-
ment to purchase the property from Dorenbach because they
inserted language into the purchase agreement reserving their
right to assign their interest in the agreement prior to closing.
They also contend that the trial court erred in finding that the
exercise of the Stahrs’ right of first refusal was invalid because
it was a material deviation from the offer made by Jones.
[6] Acceptance of an offer to buy or sell real estate must be
an unconditional acceptance of the offer as made; otherwise, no
contract is formed; and there must be no substantial variation
between the offer and the acceptance, since if such acceptance
differs from the offer or is coupled with any condition that var-
ies or adds to it, it is not an acceptance, but a counterproposi-
tion. See Anderson v. Stewart, 149 Neb. 660, 32 N.W.2d 140
(1948). See, also, Logan Ranch v. Farm Credit Bank, 238 Neb.
814, 472 N.W.2d 704 (1991).
As we have already described, there is no dispute that
Dorenbach decided to sell, that she received an offer from
Jones, and that she decided to accept the offer. At that time, the
Stahrs’ right of first refusal ripened into an option, which they
then proceeded to exercise. As such options are assignable by
the option holder, the language of the Stahrs’ acceptance, which
merely reserved the right to assign, did not constitute a material
variation from Jones’ offer.
At oral argument, Dorenbach’s counsel conceded that if the
Stahrs’ right was assignable, the contested provision did not
constitute a material variation. While it may not have been
JONeS v. STAHR 	605
Cite as 16 Neb. App. 596

assignable before Dorenbach decided to accept Jones’ offer,
once she did, the right of first refusal ripened into an assign-
able option. It follows that the Stahrs’ acceptance was binding
and that the “ripened option” thereby became an enforceable
contract. The district court erred in finding that the reservation
of the right to assign constituted a material deviation from the
terms of Jones’ offer.
CONCLUSION
When Dorenbach decided both to sell the real estate and to
accept Jones’ offer, the Stahrs’ right of first refusal ripened into
an option contract. Because option contracts are assignable by
the optionee, the Stahrs’ reservation of the right to assign was
not a material deviation from Jones’ offer. The district court
erred in finding a material deviation. We reverse the judgment
of the district court and remand with direction to grant specific
performance to the Stahrs.
R eveRsed and Remanded with diRection .
caRlson, Judge, dissenting.
I respectfully dissent from the majority’s opinion, given my
conclusion that regardless of whether the Stahrs’ ability to pur-
chase Dorenbach’s property is considered a right of first refusal
or an “option,” there is sufficient evidence on this record to
show that the Stahrs’ right, or option, to purchase Dorenbach’s
property was too personal in character to permit assignment.
The majority states that the Stahrs’ right of first refusal
ripened into an option once Dorenbach accepted Jones’ offer
to purchase. Assuming that this is true, one must still consider
whether the Stahrs’ option to purchase Dorenbach’s property
was assignable. As the majority states, “In nearly all juris-
dictions the option holder’s rights in an option supported by
consideration are assignable in the absence of any words of
assignability, except of course, where the nature or terms of the
option bring it within some recognized exception.” 3 eric Mills
Holmes, Corbin on Contracts § 11.15 at 586 (Joseph M. perillo
ed., rev. ed. 1996).
Although generally the law supports assignability of rights,
it does not permit assignments for matters of personal trust
or confidence, or for personal services. Eli’s, Inc. v. Lemen,
606 	16 NeBRASkA AppeLLATe RepORTS

256 Neb. 515, 591 N.W.2d 543 (1999), citing Schupack v.
McDonald’s System, Inc., 200 Neb. 485, 264 N.W.2d 827
(1978); Earth Science Labs. v. Adkins & Wondra, P.C., 246
Neb. 798, 523 N.W.2d 254 (1994); Andersen v. Ganz, 6 Neb.
App. 224, 572 N.W.2d 414 (1997).
The Nebraska Supreme Court has stated that whether rights
and duties under a contract are too personal in character to
permit assignment is a question of construction to be resolved
from the nature of the contract and the express or presumed
intention of the parties. Schupack v. McDonald’s System, Inc.,
supra. Additionally, the court stated that the intention of the
parties is to be ascertained from the contract, its nature, and the
attending circumstances. Id.
In the instant case, the right of first refusal granted by
Dorenbach to the Stahrs states as follows:
Buyer [the Stahrs] acknowledges that Seller [Dorenbach]
has previously granted to . . . Aerts a right of first refusal
to fifteen (15) acres adjacent to property. . . . However,
subject to that right of first refusal held by . . . Aerts,
Seller [Dorenbach] does grant a subordinate right of first
refusal to Buyer [the Stahrs] on the land retained by
Seller [Dorenbach], comprising approximately one hun-
dred twenty seven (127) acres, more or less.
The record shows that on June 27, 2005, Jones submitted an
offer to Dorenbach to purchase her remaining property. Jones
offered Dorenbach $550,000 for the property, and his offer was
conditioned upon his ability to obtain a $400,000 loan. On June
28, Dorenbach accepted Jones’ offer. The Stahrs then exercised
their right of first refusal, offering to purchase Dorenbach’s
property for the same price. In the Stahrs’ agreement, they
stated that they would be paying the purchase price entirely in
cash, and the Stahrs inserted the following language in their
purchase agreement: “Buyer [the Stahrs] reserves the right to
assign this contract to a third party prior to closing.”
In a letter dated July 20, 2005, Dorenbach’s attorney informed
the Stahrs that their offer was not acceptable; specifically, the
letter states:
When this was entered into, [Dorenbach] intended the
right of refusal to be personal to you and she is not willing
JONeS v. STAHR 	607
Cite as 16 Neb. App. 596

to allow it to be assigned in any manner. [Dorenbach]
is also bothered by the fact that your purchase agree-
ment indicates that the payment will be “all cash,” yet it
has come to our attention that there will be a loan from
Hastings State Bank which has some contingencies.
At trial, Dorenbach testified that when negotiating with
Daniel in 1998 for the sale of her land, Daniel brought up the
idea of the right of first refusal. Dorenbach stated that Daniel
indicated that he wanted the right of first refusal for himself.
Dorenbach testified that she and Daniel did not discuss the
Stahrs’ ability to assign the right. Dorenbach testified that she
gave the Stahrs the first right of refusal “on the feeling that in
good faith it was for [Daniel] and [Daniel] only.” Dorenbach
testified that she would not have agreed to the right of first
refusal if it had contained language allowing the right to
be assigned.
Dorenbach testified that she granted Aerts a right of first
refusal to 15 acres of her property because Aerts, her neighbor,
told her that he wanted to buy additional property adjacent to
his own so that no one could build close to his property. Daniel
testified that when he spoke to Dorenbach’s son about the right
of first refusal, Daniel mentioned that he wanted to have the
option to purchase the property adjacent to the land he pur-
chased from Dorenbach in 1998 if he could afford it. Daniel
testified that he and Dorenbach never discussed whether the
right of first refusal would be assignable.
In the instant case, the trial court reviewed the right of refusal
Dorenbach granted to the Stahrs, its nature, and the attend-
ing circumstances in concluding that the right of first refusal
Dorenbach granted to the Stahrs in 1998 was personal in nature
and could not be assigned by the Stahrs. The trial court relied on
Dorenbach’s testimony at trial that she considered the right to be
personal to the Stahrs and that she did not want the right of first
refusal to be assigned. The trial court went on to state:
The inescapable conclusion is that Dorenbach granted
the rights of first refusal to Aerts and the Stahrs to allow
them to acquire the land adjacent to their homes rather
than have the land be acquired by a third party. In other
words, these rights of first refusal permitted Aerts and
608 	16 NeBRASkA AppeLLATe RepORTS

the Stahrs to have some control over the ownership of
the land adjacent to their homes. The court finds that the
right of first refusal was personal to the Stahrs and was
not assignable.
After reviewing de novo the trial court’s determination that
the right of first refusal was personal, and keeping in mind that
the trial court observed the witnesses and accepted Dorenbach’s
version of the facts, I cannot say that the trial court erred in
so finding.
After concluding that the right of first refusal was personal
in nature, the trial court stated, “Therefore, when [the Stahrs’]
June 29, 2005 offer to purchase included the provision for
assignment, this constituted a material deviation from the offer
by Jones and it is not binding upon Dorenbach.” Given my
conclusion that the trial court did not err in finding that the
right or option granted to the Stahrs by Dorenbach was personal
in nature and not assignable, it follows that by virtue of the
Stahrs’ inserting language into the purchase agreement reserv-
ing their right to assign their interest in the agreement prior to
closing, the Stahrs’ exercise of that right of first refusal became
invalid because it was a material deviation from the offer made
by Jones.
Acceptance of an offer to buy or sell real estate must be an
unconditional acceptance of the offer as made; otherwise, no
contract is formed; and there must be no substantial variation
between the offer and the acceptance, since if such acceptance
differs from the offer or is coupled with any condition that var-
ies or adds to it, it is not an acceptance, but a counterproposi-
tion. See Anderson v. Stewart, 149 Neb. 660, 32 N.W.2d 140
(1948). See, also, Logan Ranch v. Farm Credit Bank, 238 Neb.
814, 472 N.W.2d 704 (1991). I cannot conclude that the trial
court erred in this regard either, and therefore, I would affirm
the judgment of the trial court.
JONeS v. STAHR 	609
Cite as 16 Neb. App. 596