Barnett v. Happy Cab Co.

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
Jeremy Barnett, appellant, v. Happy Cab Co.,
a Nebraska corporation,
et al., appellees.
___ N.W.2d ___
Filed May 26, 2020. 	No. A-19-510.
1. Pleadings: Judgments: Appeal and Error. A motion to alter or amend
a judgment is addressed to the discretion of the trial court, whose deci-
sion will be upheld in the absence of an abuse of that discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Appeal and Error. Although an appellate court ordinarily considers
only those errors assigned and discussed in the briefs, the appellate court
may, at its option, notice plain error.
4. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
5. Contracts: Parties: Intent. To create a contract, there must be both an
offer and an acceptance; there must be a meeting of the minds or a bind-
ing mutual understanding between the parties to a contract.
6. ____: ____: ____. A fundamental and indispensable basis of any enforce-
able agreement is that there be a meeting of the minds of the parties as
to the essential terms and conditions of the proposed contract.
7. ____: ____: ____. A binding mutual understanding or meeting of the
minds sufficient to establish a contract requires no precise formality
or express utterance from the parties about the details of the proposed
agreement; it may be implied from the parties’ conduct and the sur-
rounding circumstances.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:39 AM CDT

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
8. Contracts. It is a fundamental rule that in order to be binding, an agree-
ment must be definite and certain as to the terms and requirements. It
must identify the subject matter and spell out the essential commitments
and agreements with respect thereto.
9. Compromise and Settlement. The object of Neb. Rev. Stat. § 25-901
(Cum. Supp. 2018) is to encourage litigants to compromise their
differences.
10. ____. In reaching a compromise, a party may make a counteroffer dur-
ing negotiations. In other words, the purpose of a confessed judgment
and its acceptance is to have the parties agree upon a final resolution,
and this necessarily requires a meeting of the minds as to the terms of
that resolution.
11. ____. Where an acceptance differs from an offer and is coupled with any
condition that varies or adds to the offer, it is not an acceptance; rather,
it is a counteroffer.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Reversed and vacated, and cause
remanded with directions.
John C. Fowles, of Fowles Law Office, P.C., L.L.O., for
appellant.
Benjamin E. Maxell, of Govier, Katskee, Suing & Maxell,
P.C., L.L.O., for appellees.
Riedmann and Bishop, Judges.
Per Curiam.
INTRODUCTION
Jeremy Barnett appeals from an order of the district court
for Douglas County which found that a confessed judgment
agreement was intended to apply to Happy Cab Co. (Happy
Cab), Checker Cab Co. (Checker Cab), and Richard C. Kincaid
(collectively appellees), rather than just Happy Cab, as the
court had previously determined. The court granted appel-
lees’ motion to alter or amend the court’s previous order and
entered an “Amended Order of Judgment,” entering judgment
in favor of Barnett and against appellees in the amount of
$75,000. Based on the reasons that follow, we reverse the trial

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
court’s May 9, 2019, order and vacate the May 9 “Amended
Order of Judgment” and we remand the cause with directions
to reverse the April 15 “Order” and vacate the order entering
judgment on April 15.
BACKGROUND
On March 3, 2015, Barnett filed a first amended complaint
for personal injuries and damages against appellees and John
Doe Cab Company. Barnett alleged that on January 2, 2011,
he was getting into a “Checker Cab” driven by Kincaid when
the cab began moving and Barnett was injured. He also alleged
that Kincaid was an employee of Happy Cab, Checker Cab,
and/or John Doe Cab Company and that Kincaid’s negligence
was imputed to Happy Cab and/or Checker Cab under the doc-
trine of respondeat superior.
Happy Cab and Checker Cab filed a joint answer admitting
they were Nebraska corporations and denying Kincaid was
their employee. Kincaid filed a separate answer denying he
was an employee of either cab company. Both answers were
filed by the same attorney. John Doe Cab Company was dis-
missed from the case on July 2, 2015.
On March 7, 2019, a few days before the scheduled jury
trial, appellees’ counsel filed an offer to confess judgment in
the amount of $75,000. Barnett filed his acceptance of the offer
to confess judgment as to Happy Cab and its liability insurer,
Paratransit Insurance Co. (Paratransit Insurance), only.
Trial on Barnett’s first amended complaint was scheduled
for March 11, 2019. On that day, the court was advised that
an offer to confess judgment had been filed and that Barnett
had filed an acceptance of the offer. The issue at the hearing
became whether the offer to confess judgment applied only to
Happy Cab or to all appellees. Counsel for Barnett argued that
the offer to confess judgment and acceptance thereof applied
only to Happy Cab; counsel for appellees argued that the offer
and acceptance applied to all appellees and that Checker Cab
and Kincaid should be dismissed as defendants.

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
An independent contractor agreement between Happy Cab
and Kincaid was offered and received into evidence. The court
also took judicial notice of the first amended complaint, the
answers of the defendants, the offer to confess judgment, and
the acceptance of the offer.
On April 15, 2019, the trial court entered an order overrul-
ing Checker Cab’s and Kincaid’s motions to dismiss, finding
that the offer to confess judgment did not apply to Checker
Cab or Kincaid. The court entered an “Order” of judgment the
same day finding that Happy Cab and Paratransit Insurance
made and filed an offer to confess judgment in the amount
of $75,000 and that Barnett filed an acceptance of the offer.
The order further stated that a judgment should be entered on
behalf of Barnett and against Happy Cab only in the amount
of $75,000.
On April 23, 2019, appellees filed a motion to alter or
amend, alleging that the court erred in finding that the offer
to confess judgment did not include Checker Cab or Kincaid.
The motion stated that Checker Cab is a trade name of
Happy Cab and that they are “one in the same.” In regard to
Kincaid, the motion alleged that a valid release of either the
master or servant from liability for tort operates to release
the other where liability is based on the doctrine of respon-
deat superior.
Following a hearing on appellees’ motion to alter or amend,
the court entered an order on May 9, 2019, finding that the
offer to confess judgment was intended to apply to all appel-
lees and that therefore, the motion to alter or amend should
be sustained and a judgment entered in favor of Barnett and
against all appellees in the amount of $75,000. The court
also entered an “Amended Order of Judgment” finding that
appellees filed an offer to confess judgment in the amount
of $75,000 including costs, and Barnett filed an acceptance
of said offer, and that therefore, judgment should be entered
on behalf of Barnett and against appellees in the amount
of $75,000.

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
ASSIGNMENTS OF ERROR
Barnett assigns, restated, that the trial court erred in (1)
finding that the offer to confess judgment applied to all appel-
lees; (2) its application of the “‘intent’” rule and rebuttable
presumption set forth in Podraza v. New Century Physicians of
Neb., 280 Neb. 678, 789 N.W.2d 260 (2010); and (3) entering
a confusing amended order of judgment that is unclear as to its
effect on the prior order.
STANDARD OF REVIEW
[1,2] A motion to alter or amend a judgment is addressed to
the discretion of the trial court, whose decision will be upheld
in the absence of an abuse of that discretion. Breci v. St. Paul
Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014). A
judicial abuse of discretion exists when the reasons or rulings
of a trial judge are clearly untenable, unfairly depriving a liti-
gant of a substantial right and denying just results in matters
submitted for disposition. Id.
ANALYSIS
Barnett’s first two assignments of error relate to the court’s
granting appellees’ motion to alter or amend, thereby finding
that the offer to confess judgment and the acceptance applied
to all appellees, not just Happy Cab. Barnett contends that
Happy Cab was the only appellee to make the offer to con-
fess judgment and the only appellee from whom he accepted
the offer.
The introductory language of the offer to confess judgment
states: “COME NOW the Defendants, Happy Cab . . . and
Paratransit Insurance . . . (collectively “Defendants”) . . . and
for Defendants’ Offer to Confess Judgment . . . hereby state as
follows: . . . Defendants offer to allow judgment to be entered
against them on all claims . . . .” (We note here that Paratransit
Insurance was not a named defendant in this case.) The end of
the offer states that it is “Respectfully submitted” by Happy
Cab, Checker Cab, and Kincaid. Barnett’s acceptance of the

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
offer stated that he was accepting the offer “as to ‘defendants’
Happy Cab and Paratransit Insurance . . . only.”
The trial court initially concluded that the burden was on
Checker Cab and Kincaid to prove the offer to confess judg-
ment and the acceptance were specifically intended to apply
to them and that the burden had not been met. The court held
therefore, that the motion of Checker Cab and Kincaid to dis-
miss pursuant to the offer to confess judgment should be over-
ruled and denied.
However, after the court considered appellees’ motion to
alter or amend, it concluded in its May 9, 2019, order that the
offer to confess judgment was intended to apply to all appel-
lees. This conclusion was based on its determination that the
offer to confess judgment was submitted and made on behalf
of all appellees by counsel who represented all appellees, as
well as the fact that counsel for appellees, upon receiving the
limited acceptance, immediately moved to have the offer apply
to all of his clients, and subsequently filed the motion to alter
or amend.
[3,4] In deciding the case initially and on the motion to alter
or amend, the trial court focused on whether appellees proved
that they intended the offer to confess judgment to apply to
all of them. We determine, however, that the trial court com-
mitted plain error and that this case is better analyzed as a
contract case, which requires a meeting of the minds by both
parties. Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appellate
court may, at its option, notice plain error. Connelly v. City of
Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012). Plain error
exists where there is an error, plainly evident from the record
but not complained of at trial, which prejudicially affects a
substantial right of a litigant and is of such a nature that to
leave it uncorrected would cause a miscarriage of justice or
result in damage to the integrity, reputation, and fairness of
the judicial process. United States Cold Storage v. City of
La Vista, 285 Neb. 579, 831 N.W.2d 23 (2013).

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
[5-7] To create a contract, there must be both an offer and
an acceptance; there must be a meeting of the minds or a bind-
ing mutual understanding between the parties to the contract.
Stitch Ranch v. Double B.J. Farms, 21 Neb. App. 328, 837
N.W.2d 870 (2013). A fundamental and indispensable basis of
any enforceable agreement is that there be a meeting of the
minds of the parties as to the essential terms and conditions
of the proposed contract. Id. A binding mutual understand-
ing or meeting of the minds sufficient to establish a contract
requires no precise formality or express utterance from the
parties about the details of the proposed agreement; it may be
implied from the parties’ conduct and the surrounding circum-
stances. Id.
[8] It is a fundamental rule that in order to be binding, an
agreement must be definite and certain as to the terms and
requirements. It must identify the subject matter and spell
out the essential commitments and agreements with respect
thereto. Id.
Neb. Rev. Stat. § 25-901 (Cum. Supp. 2018), which per-
tains to offers to confess judgment prior to trial, states as
follows:
The defendant in an action for the recovery of money
only may, at any time before the trial, serve upon the
plaintiff or the plaintiff’s attorney an offer in writing
to allow judgment to be taken against the defendant for
the sum specified therein. If the plaintiff accepts the
offer and gives notice thereof to the defendant or the
defendant’s attorney, within five days after the offer
was served, the offer and an affidavit that the notice of
acceptance was delivered in the time limited may be filed
by the plaintiff or the defendant may file the acceptance,
with a copy of the offer verified by affidavit. In either
case, the offer and acceptance shall be entered upon the
record, and judgment shall be rendered accordingly. If the
notice of acceptance is not given in the period limited,
the offer shall be deemed withdrawn and shall not be

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
given in evidence or mentioned on the trial. If the plain-
tiff fails to obtain judgment for more than was offered by
the defendant, the plaintiff shall pay the defendant’s cost
from the time of the offer.
[9,10] We recognize that although Nebraska’a statute does
not specifically provide for a counteroffer of judgment, the
Nebraska Supreme Court has previously identified the pur-
pose of the statute as follows: “The object of this section is to
encourage litigants to compromise their differences.” Palmer
v. Stiles, 78 Neb. 362, 363, 110 N.W. 1004, 1005 (1907). As a
result, we believe it is a reasonable interpretation to conclude
that in reaching a compromise, a party may make a counter-
offer during negotiations. In other words, the purpose of a
confessed judgment and its acceptance is to have the parties
agree upon a final resolution, and this necessarily requires a
meeting of the minds as to the terms of that resolution. That
did not occur here.
The offer to confess judgment was an offer to enter into a
contractual agreement with Barnett. However, the offer was
unclear as to which appellees were making the offer. As previ-
ously stated, the introductory language of the offer identified
Happy Cab and Paratransit Insurance as the parties making the
offer, but the offer was “Respectfully submitted” by all appel-
lees. Appellees argue that they intended for the offer to confess
judgment to apply to all of them.
[11] Barnett’s acceptance of the offer to confess judgment
specifically stated that he was accepting the offer as to Happy
Cab and Paratransit Insurance only. Accordingly, if the offer
to confess judgment was intended to include all appellees,
Barnett’s “acceptance” was actually a counteroffer rather than
an acceptance. See Logan Ranch v. Farm Credit Bank, 238
Neb. 814, 472 N.W.2d 704 (1991) (where acceptance differs
from offer and is coupled with any condition that varies or
adds to offer, it is not acceptance; rather, it is counteroffer).
Therefore, no contract was created, because there was no meet-
ing of the minds.

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
BARNETT v. HAPPY CAB CO.
Cite as 28 Neb. App. 438
An essential term of a contract would include which par-
ties are bound by the contract. In the instant case, the parties
never came to a mutual understanding of which appellees were
bound by the agreement, and thus, there was never any agree-
ment reached by the parties. Therefore, we reverse the trial
court’s May 9, 2019, order and vacate the May 9 “Amended
Order of Judgment.” We also note that upon entering the
May 9 order and “Amended Order of Judgment,” the trial
court should have reversed the April 15 “Order” and vacated
the order entering judgment on April 15, but failed to do so.
This resulted in the confusion about the April 15 order noted
by Barnett on appeal. Upon remand, the trial court is also
directed to reverse the April 15 “Order” and vacate the order
entering judgment on April 15. Our decision places Barnett
and appellees back in the same position they were before the
offer to confess judgment was filed.
CONCLUSION
We conclude that the offer to confess judgment and the
acceptance of offer did not create a contract between Barnett
and any of the appellees, as there was no meeting of the
minds. Accordingly, the court’s May 9, 2019, order is reversed
and the May 9 “Amended Order of Judgment” is vacated, and
the cause is remanded with directions to reverse the April
15 “Order” and to vacate the order entering judgment on
April 15.
Reversed and vacated, and cause
remanded with directions.
Pirtle, Judge, participating on briefs.