    Nebraska Advance Sheets
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dictate that appointment of a GAL was “mandatory” and that
the county court’s failure to make the appointment was plain
error.23 Unless the court is prepared to overrule this precedent,
it should be followed. I respectfully dissent from the majority’s
failure to do so.
    Miller-Lerman, J., joins in this dissent.

23	
      See id.




          Martin V. Linscott, individually and on behalf of
           Shasteen, Linscott & Brock, P.C., a Nebraska
                professional corporation, appellant,
                    v. Rolf Edward Shasteen and
                       Tony J. Brock, appellees.
                                    ___ N.W.2d ___

                         Filed June 6, 2014.    No. S-13-597.

 1.	 Judgments: Appeal and Error. When reviewing questions of law, an appellate
     court resolves the questions independently of the lower court’s conclusions.
 2.	 Contracts: Parties: Intent. To create a contract, there must be both an offer and
     an acceptance; there must also be a meeting of the minds or a binding mutual
     understanding between the parties to the contract.
 3.	 Contracts: Parties. A binding mutual understanding or meeting of the minds suf-
     ficient 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 circumstances.
 4.	 Contracts: Parties: Intent. An implied contract arises where the intention of
     the parties is not expressed in writing but where the circumstances are such as to
     show a mutual intent to contract.
 5.	 Contracts: Proof. Evidence of facts and circumstances, together with the words
     of the parties used at the time, from which reasonable persons in conducting the
     ordinary affairs of business, but with special reference to the particular matter on
     hand, would be justified in inferring such a contract or promise, is sufficient.
 6.	 Contracts: Parties: Intent. The determination of the parties’ intent to make
     a contract is to be gathered from objective manifestations—the conduct of the
     parties, language used, or acts done by them, or other pertinent circumstances
     surrounding the transaction.
 7.	 Contracts: Intent. If the parties’ conduct is sufficient to show an implied con-
     tract, it is just as enforceable as an express contract.
                         Nebraska Advance Sheets
	                            LINSCOTT v. SHASTEEN	277
	                              Cite as 288 Neb. 276

 8.	 Contracts. Partial performance can remove uncertainty in the terms of a contract
     and establish that an enforceable contract has been formed.
 9.	 Contracts: Parties: Intent. The interpretation given to a contract by the parties
     themselves while engaged in the performance of it is one of the best indications
     of true intent and should be given great, if not controlling, influence.
10.	 Contracts: Statute of Frauds: Time: Words and Phrases. For purposes of the
     statute of frauds, a contract “not to be performed within one year” is one which
     by its terms cannot be performed within 1 year.
11.	 Contracts: Statute of Frauds: Time. A contract is not within the statute of
     frauds merely because it may, or probably will, not be performed within 1 year.
12.	 ____: ____: ____. An oral agreement is valid under the statute of frauds if it is
     capable of being performed within 1 year from the date of making.
13.	 Contracts: Parties: Intent. To be void, the express terms of a contract must
     show that performance was to occur outside of 1 year or the facts must show
     that the parties could not have intended for performance to be completed within
     1 year.
14.	 Contracts: Time. Even if a contract is not performed within 1 year, it is not void
     if it is capable of being performed within 1 year.
15.	 Pleadings. An affirmative defense must be specifically pled to be considered.
16.	 Pleadings: Notice. The key to determining the sufficiency of pleading an affirm­
     ative defense is whether it gives the plaintiff fair notice of the defense.
17.	 Pleadings: Appeal and Error. An affirmative defense not raised or litigated in
     the trial court cannot be urged for the first time on appeal.
18.	 Appeal and Error. Errors that are assigned but not argued will not be addressed
     by an appellate court.
19.	 ____. The purpose of an appellant’s reply brief is to respond to the arguments the
     appellee has advanced against the errors assigned in the appellant’s initial brief.
20.	 Waiver: Appeal and Error. Errors not assigned in an appellant’s initial brief are
     waived and may not be asserted for the first time in a reply brief.
21.	 Appeal and Error. An appellate court will not consider an issue on appeal that
     was not presented to or passed upon by the trial court.
22.	 ____. Errors argued but not assigned will not be considered on appeal.

  Appeal from the District Court for Lancaster County:
James T. Gleason, Judge. Reversed and remanded for further
proceedings.
  V. Gene Summerlin and Marnie A. Jensen, of Husch
Blackwell, L.L.P., for appellant.
  Victor E. Covalt III and Adam R. Little, of Ballew, Covalt &
Hazen, P.C., L.L.O., for appellees.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
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  McCormack, J.
                      NATURE OF CASE
   Martin V. Linscott brought suit individually and deriva-
tively on behalf of Shasteen, Linscott & Brock, P.C. (SLB),
against Rolf Edward Shasteen and Tony J. Brock for one-third
of attorney fees recovered from SLB cases that existed at the
time Linscott withdrew as a shareholder. After a bench trial,
the district court held that Linscott was not owed any attor-
ney fees because there was not an enforceable contract and
the “unfinished business rule” was not applicable. Linscott
now appeals.
                        BACKGROUND
   On July 8, 2002, Linscott, Shasteen, and Brock formed
the law firm SLB, a Nebraska professional corporation. In
2004, Linscott drafted a proposed shareholder agreement that
specified how attorney fees would be divided if a shareholder
left the firm. The proposed agreement contemplated that the
departed attorney would receive a one-third share of all fees
from existing in-process cases and that the firm would receive
two-thirds. The proposed agreement was never executed by
Linscott, Shasteen, or Brock.
   Shortly after the proposed shareholder agreement was cir-
culated, Shasteen and Brock left a signed letter on Linscott’s
office chair. The letter requested that Linscott leave SLB. The
letter stated, “Keep all your cases and we’ll keep ours or we
can divide them as per the proposed agreement.”
   Linscott withdrew from the day-to-day operations of SLB
and began practicing law with a new firm. On September
16, 2004, Shasteen and Brock changed the name of SLB to
Shasteen, Brock & Scholz, P.C. That same day, Linscott sent
an e-mail to Shasteen and Brock discussing “issues” arising
from Linscott’s leaving. In particular, the e-mail stated, “Cases:
Should be handled as proposed in the agreement, me paying
you 2/3 of the fees on my SLB cases, you paying me 1/3 of the
remaining SLB cases . . . .”
   Beginning on September 17, 2004, Linscott began sharing
fees with Shasteen and Brock. From that date through January
10, 2005, Linscott sent 42 fee checks to Shasteen and Brock
totaling $39,519.49. Likewise, starting on September 20, 2004,
                  Nebraska Advance Sheets
	                     LINSCOTT v. SHASTEEN	279
	                       Cite as 288 Neb. 276

and concluding on December 28, 2004, Shasteen and Brock
sent 26 fee checks totaling $44,147.46 to Linscott. The 68
checks exchanged represented fees from a total of 134 cases.
The fees were sent without reducing the amounts for expenses
or overhead.
   On September 17, 2004, Linscott sent an e-mail to Shasteen
and Brock indicating that he intended to pay them for their
portion of fees collected from three clients. On September 20,
2004, Linscott e-mailed Shasteen and Brock and stated that
he had showed his office staff how to divide fees and that he
intended to continue splitting fees the “same way” as they had
been doing. The e-mail further stated, “I am going to honor
our fee arrangement and trust that you will do the same, so
I’m not going to require any additional documentation other
than maybe the disbursement letter on non [sic] weekly checks
(settlements). Let me know if you disagree.”
   In a response e-mail sent on September 22, 2004, Brock did
not object to the fee arrangement. On November 17, Linscott
sent a letter to Shasteen and Brock, which stated, “As far as the
fees are concern [sic], I think things are working well on our
cases where fees are currently being generated.” In a response
letter dated November 29, 2004, Shasteen disagrees with cer-
tain requests made by Linscott but does not discuss or contest
the fee arrangement between the parties. On January 24, 2005,
Shasteen sent Linscott an SLB case list, which indicated cases
that existed at the time of Linscott’s departure which were
retained by Shasteen and Brock.
   According to Brock, this exchange of fees from September
17, 2004, through January 10, 2005, was done without his
knowledge. When Brock learned of this arrangement, he
ordered it to stop. Shasteen and Brock stopped sending checks
on December 28, 2004. Linscott sent his last fee check on
January 10, 2005.
   Linscott filed his complaint with the Lancaster County
District Court. He pleaded five counts: corporate derivative
claims for injunctive relief and an accounting and individual
claims for an accounting, breach of contract, and breach of
fiduciary duty. Shasteen and Brock did not file a counter-
complaint for the return of the fees they had already sent to
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Linscott. The trial was bifurcated in two parts: liability and
damages. After a bench trial on liability, the district court held
that Linscott was entitled to an accounting and found that
there was an enforceable agreement.
   The damages portion of the trial was held on March 2, 2012.
In its order dated February 28, 2013, the district court vacated
its reception of the summary exhibits 88 through 92.
   Upon reconsideration, the district court found that there was
an absence of specific material terms—in particular, a defini-
tion of “‘net fees’” in the unexecuted written agreement—that
precluded the possibility of an implied contract. It further
concluded that even if there was an oral contract, the contract
would be void under the statute of frauds. The district court
held that Shasteen and Brock had no obligation to Linscott to
share any additional attorney fees. Upon a motion for new trial,
the district court further found that the “unfinished business
rule” has no application to this case. The district court found
that absent an enforceable agreement, all payments made were
voluntary. The district court concluded that Shasteen and Brock
were under no obligation to continue payments.
                  ASSIGNMENTS OF ERROR
   Linscott assigns that the district court erred by (1) conclud-
ing that the agreement was unenforceable due to the statute
of frauds, (2) concluding that the unfinished business rule
was not applicable to Linscott’s request for an accounting, (3)
concluding that Linscott was not entitled to an accounting, (4)
failing to award damages to Linscott based on the accounting,
(5) reversing its liability judgment following the damages trial,
(6) reversing its receipt into evidence of Linscott’s exhibits
88 through 92, and (7) failing to award prejudgment interest
to Linscott.
                STANDARD OF REVIEW
   [1] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusions.1

 1	
      Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48, 825
      N.W.2d 204 (2013).
                       Nebraska Advance Sheets
	                          LINSCOTT v. SHASTEEN	281
	                            Cite as 288 Neb. 276

                            ANALYSIS
   The issues presented by this appeal are whether the district
court erred as a matter of law in holding (1) that the absence of
specific material terms, in particular, that the definition of “net
fees” prevents a finding an implied contract was formed, and
(2) that the statute of frauds barred the action. We reverse the
district court’s order and find that it erred as a matter of law on
both findings.
   It is conceded by Linscott that the proposed shareholder
agreement was not executed, but he argues that an implied
contract was created by the conduct of the parties. We therefore
begin our analysis by setting out the established Nebraska law
on implied in fact contracts.
   [2,3] To create a contract, there must be both an offer and
an acceptance; there must also be a meeting of the minds or a
binding mutual understanding between the parties to the con-
tract.2 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’ con-
duct and the surrounding circumstances.3
   [4-7] An implied contract arises where the intention of the
parties is not expressed in writing but where the circumstances
are such as to show a mutual intent to contract.4 Evidence of
facts and circumstances, together with the words of the parties
used at the time, from which reasonable persons in conducting
the ordinary affairs of business, but with special reference to
the particular matter on hand, would be justified in inferring
such a contract or promise, is sufficient.5 The determination
of the parties’ intent to make a contract is to be gathered from
objective manifestations—the conduct of the parties, language
used, or acts done by them, or other pertinent circumstances

 2	
      City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848, 809
      N.W.2d 725 (2011).
 3	
      Id.
 4	
      See, id.; Turner v. Fehrs Neb. Tractor & Equip., 259 Neb. 313, 609
      N.W.2d 652 (2000).
 5	
      Woods v. Woods, 177 Neb. 542, 129 N.W.2d 519 (1964).
    Nebraska Advance Sheets
282	288 NEBRASKA REPORTS



surrounding the transaction.6 If the parties’ conduct is suffi-
cient to show an implied contract, it is just as enforceable as an
express contract.7
   Here, Linscott alleges that prior to his departure from SLB,
the parties had discussed the proposed shareholder agreement
that allocated fees on an equal basis between each shareholder.
The letter signed by Shasteen and Brock stated, “Keep all
your cases and we’ll keep ours or we can divide them as per
the proposed agreement.” The testimony indicates that the
“proposed agreement” refers to the shareholder agreement con-
cerning the fee split. In an e-mail sent the next day, Linscott
informed Shasteen and Brock that he chose to divide the fees
as per the agreement.
   Linscott alleges that Shasteen and Brock did not object to
Linscott’s decision on the fee division until months after the
performance began. With Shasteen and Brock’s apparent acqui-
escence, Linscott went forward with the agreement and had
his office staff begin dividing fees. Shasteen and Brock also
went forward with the agreement and began exchanging checks
with Linscott. A total of 68 checks were exchanged over sev-
eral months, which Linscott alleges were in accord with the
proposed agreement. From this evidence, Linscott argues an
implied contract was formed. The district court disagreed for
two reasons.
   First, the district court found that the parties did not define
specific material terms of the alleged contract; however, it
provided only one example. It stated that the “most flagrant
absence is any definition in paragraph 4 of [the proposed
shareholder agreement] of what is intended by the parties by
the use of the words, ‘net fees.’” It is unclear from the district
court’s order how the lack of a definition for the term “net
fees” prevents the formation of a contract between the parties.
But the district court seemed to find this lack of definition
decisive. The court made no factual findings on the surround-
ing circumstances of the transaction. Due to the lack of factual
findings in the order, it appears from our reading that the

 6	
      Kaiser v. Millard Lumber, 255 Neb. 943, 587 N.W.2d 875 (1999).
 7	
      City of Scottsbluff v. Waste Connections of Neb., supra note 2.
                        Nebraska Advance Sheets
	                           LINSCOTT v. SHASTEEN	283
	                             Cite as 288 Neb. 276

district court found the absence of any definition of the term
“net fees” to be a legal barrier to the formation of an enforce-
able contract.
   Such a finding is incorrect. The proposed shareholder agree-
ment is only one circumstance surrounding the alleged implied
in fact contract that can help determine the intentions of the
parties on how the fees were to be split. Other circumstances
include the parties’ objective manifestations, such as their con-
duct surrounding the transaction.8
   [8,9] For instance, it is a relevant circumstance that the
parties split fees by exchanging a total of 68 checks. And it
is well established that partial performance can remove uncer-
tainty in the terms of a contract and establish that an enforce-
able contract has been formed.9 In fact, we have stated that
the interpretation given to a contract by the parties themselves
while engaged in the performance of it is one of the best indi-
cations of true intent and should be given great, if not control-
ling, influence.10
   It was, therefore, error for the district court to reason that
the lack of a written definition for the term “net fees” bars a
finding of an enforceable contract. At its core, an implied con-
tract arises where the intention of the parties is not expressed
in writing but where the surrounding circumstances are such
to show a mutual intent to contract.11 Although the proposed
shareholder agreement is a circumstance that could help deter-
mine the terms of the implied contract, the conduct and partial
performance of the parties are also integral to that determina-
tion. And that conduct could also help define the terms of the
agreement. On remand, the district court should determine
whether all of the surrounding facts and circumstances of this
transaction created an implied in fact contract and whether

 8	
      Kaiser v. Millard Lumber, supra note 6.
 9	
      Restatement (Second) of Contracts § 34(2) (1981); 42 C.J.S. Implied
      Contracts § 1 (2007).
10	
      See, City of Scottsbluff v. Waste Connections of Neb., supra note 2;
      International Harvester Credit Corp. v. Lech, 231 Neb. 798, 438 N.W.2d
      474 (1989).
11	
      City of Scottsbluff v. Waste Connections of Neb., supra note 2.
    Nebraska Advance Sheets
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such facts and circumstances can define the terms of the
alleged agreement.
    Second, the district court found that if there was an implied
contract, it was void under the statute of frauds, because
the contract could not be performed within 1 year. Again,
we disagree.
    [10-12] The statute of frauds provides, in relevant part:
“In the following cases every agreement shall be void, unless
such agreement, or some note or memorandum thereof, be in
writing, and subscribed by the party to be charged therewith:
(1) Every agreement that, by its terms, is not to be performed
within one year from the making thereof . . . .”12 “A contract
‘not to be performed within one year’ is one which by its terms
cannot be performed within 1 year.”13 A contract is not within
the statute of frauds merely because it may, or probably will,
not be performed within 1 year.14 To state the rule in positive
terms, an oral agreement is valid under the statute of frauds if
it is capable of being performed within 1 year from the date of
making.15 The determination of whether a contract falls within
the statute of frauds is a question of law.16
    [13] Here, the record does not establish that this implied
contract could not be performed within 1 year. Each of the
open cases subject to the implied contract could have wrapped
up within the year either by settlement, dismissal, or final dis-
position. Nothing by the terms of the oral contracts indicates
that such occurrence was impossible. To be void, the express
terms of a contract must show that performance was to occur
outside of 1 year or the facts must show that the parties could
not have intended for performance to be completed within 1
year.17 Neither situation is applicable here.

12	
      Neb. Rev. Stat. § 36-202 (Reissue 2008).
13	
      Rath v. Selection Research, Inc., 246 Neb. 340, 343, 519 N.W.2d 503, 506
      (1994).
14	
      Johnson v. First Trust Co., 125 Neb. 26, 248 N.W. 815 (1933).
15	
      Rath v. Selection Research, Inc., supra note 13.
16	
      37 C.J.S. Statute of Frauds § 228 (2008).
17	
      See, id.; Powder River Live Stock Co. v. Lamb, 38 Neb. 339, 56 N.W. 1019
      (1893).
                       Nebraska Advance Sheets
	                          LINSCOTT v. SHASTEEN	285
	                            Cite as 288 Neb. 276

   [14] In response, Shasteen and Brock argue that the fact
the actual performance of this contract has taken over 7 years
indicates the impossibility of the contract’s being performed
within 1 year. However, even if a contract is not performed
within 1 year, it is not void if it is capable of being performed
within 1 year.18 Although 7 years indicate the unlikelihood
of the contract’s being performed within 1 year, it does
not establish that the implied contract could not have been
performed within 1 year had it been carried out in a differ-
ent manner.19
   Additionally, Shasteen and Brock make two arguments that
appear under the statute of frauds argument section. First, they
argue that the partial performance is insufficient to avoid the
statute of frauds. This argument is irrelevant, because we hold
that the statute of frauds is not applicable.
   [15-17] Second, Shasteen and Brock argue that Nebraska
corporate law under Neb. Rev. Stat. § 21-2069 (Reissue 2012)
requires such a shareholder agreement to be in writing. This
argument is unrelated to the Nebraska statute of frauds found
under § 36-202, which was relied upon by the district court in
its order. This argument is a new affirmative defense. Matters
which seek to avoid a valid contract are affirmative defenses.20
An affirmative defense must be specifically pled to be consid-
ered.21 The only affirmative defense raised by Shasteen and
Brock is that the “alleged ‘Shareholders Agreement’ cannot
be enforced as enforcement thereof is barred by the applicable
statute of fraud and is not signed by the parties.” The key to
determining the sufficiency of pleading an affirmative defense
is whether it gives the plaintiff fair notice of the defense.22
The reference to the “applicable statute of fraud” is in clear
reference to § 36-202, as evidenced by our use of the term

18	
      See id.
19	
      See 13 Samuel Williston, A Treatise on the Law of Contracts § 39:1
      (Richard A. Lord ed., 4th ed. 2013).
20	
      Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369 (1998).
21	
      Countryside Co-op v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873
      (2010).
22	
      Stevenson v. Wright, 273 Neb. 789, 733 N.W.2d 559 (2007).
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in prior cases.23 Use of the term “applicable statute of fraud”
would not give Linscott fair notice of the potential affirmative
defense found under § 21-2069. An affirmative defense not
raised or litigated in the trial court cannot be urged for the first
time on appeal.24
   Therefore, the district court erred as a matter of law in
determining that the oral contract was void under the statute
of frauds.
   The remaining assignments of error, as well as the remain-
ing arguments made by both parties, will not be addressed in
this opinion and should be made before the district court on
remand. Specifically, we find that it is unnecessary to address
the assignment of error regarding the unfinished business rule
at this time. The unfinished business rule states that absent a
contrary agreement, any income generated through the wind-
ing up of unfinished business of a partnership is allocated to
the former partners according to their respective interests in
the partnership.25 Having decided to remand this cause to the
district court for a determination of whether there was a con-
trary implied in fact contract, we need not address whether the
unfinished business rule is applicable.
   [18-20] Linscott also assigns that the district court erred in
denying receipt of four exhibits, but he failed to make such
an argument in his opening brief. Errors that are assigned
but not argued will not be addressed by an appellate court.26
Linscott’s attempt to make the argument for the first time
in the reply brief is too late. The purpose of an appellant’s
reply brief is to respond to the arguments the appellee has
advanced against the errors assigned in the appellant’s initial
brief.27 Errors not assigned in an appellant’s initial brief are

23	
      See, e.g., Braunger Foods v. Sears, 286 Neb. 29, 834 N.W.2d 779 (2013);
      Rath v. Selection Research, Inc., supra note 13.
24	
      Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637 (2000).
25	
      Schrempp and Salerno v. Gross, 247 Neb. 685, 529 N.W.2d 764 (1995).
26	
      Livingston v. Metropolitan Util. Dist., 269 Neb. 301, 692 N.W.2d 475
      (2005).
27	
      Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 N.W.2d 529 (2001).
                       Nebraska Advance Sheets
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	                           Cite as 288 Neb. 276

thus waived and may not be asserted for the first time in a
reply brief.28
   [21] As for the final assignment of error concerning prejudg-
ment interest, the district court has not made a ruling on pre-
judgment interest or the amount of damages because it found
no liability. It is a longstanding rule that we will not consider
an issue on appeal that was not presented to or passed upon by
the trial court.29 Therefore, on remand, Linscott can argue such
issues before the district court.
   [22] We also want to note that in Linscott’s opening brief’s
statement of facts, Linscott discusses a client’s workers’ com-
pensation and uninsured motorist claim. In his argument sec-
tion, Linscott argues that the attorney fees received by Linscott
for this underinsured motorist claim are not subject to the SLB
fee split agreement. But such argument was not assigned as
error. Errors argued but not assigned will not be considered on
appeal.30 This is a damages issue, which can be addressed by
the district court on remand if it finds liability.
                         CONCLUSION
   We conclude that the district court erred as a matter of law
in determining that the lack of specific material terms, par-
ticularly the definition of “net fees,” prevents a finding of an
implied in fact contract. We also find that the district court
erred, as a matter of law, in its determination that the statute
of frauds rendered any implied contract void. For those rea-
sons, we reverse the judgment and remand the cause for fur-
ther proceedings.
	R eversed and remanded for
	                                 further proceedings.

28	
      Id.
29	
      Carlson v. Allianz Versicherungs-AG, 287 Neb. 628, 844 N.W.2d 264
      (2014).
30	
      Butler County Dairy v. Butler County, 285 Neb. 408, 827 N.W.2d 267
      (2013).
