Zornes v. Zornes ( 2015 )

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ZORNES v. ZORNES
Cite as 292 Neb. 271
Eric M. Zornes, as Trustee of the Eric M. Zornes
R evocable Trust, appellant and cross-appellee,
v. Julia A. Zornes, as Trustee of the
Julia A. Zornes R evocable Trust,
appellee and cross-appellant.
___ N.W.2d ___
Filed December 18, 2015. No. S-14-775.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts 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.
2. Summary Judgment. When reasonable minds can differ as to whether
an inference can be drawn, summary judgment should not be granted.
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 was granted and
gives that party the benefit of all reasonable inferences deducible from
the evidence.
4. Partition: Equity: Appeal and Error. A partition action is an action in
equity and is reviewable by an appellate court de novo on the record.
5. Uniform Commercial Code: Negotiable Instruments. Under the
Uniform Commercial Code, when a note is payable to two or more per-
sons not alternately, i.e., joined by “and” rather than “or,” they may only
enforce or receive payment jointly.
6. Accord and Satisfaction. To constitute an accord and satisfaction, there
must be (1) a bona fide dispute between the parties, (2) substitute per-
formance tendered in full satisfaction of the claim, and (3) acceptance of
the tendered performance.
7. Partition: Estates. The purpose of a partition action is to divide a
jointly owned interest in real property so that each owner may enjoy and
possess in severalty.
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ZORNES v. ZORNES
Cite as 292 Neb. 271
Appeal from the District Court for Lancaster County:
A ndrew R. Jacobsen, Judge. Reversed and remanded for fur-
ther proceedings.
James B. Luers and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., for appellant.
Jane F. Langan Mach and Sheila A. Bentzen, of Rembolt
Ludtke, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Heavican, C.J.
INTRODUCTION
In this conversion suit, Eric M. Zornes, as trustee for his
revocable trust, appeals the district court’s summary judg-
ment in favor of his ex-wife, Julia A. Zornes, as trustee of her
revocable trust. We also review the district court’s partition
of two promissory notes. We reverse, and remand for fur-
ther proceedings.
BACKGROUND
In 2006, Eric won a lottery with a group of coworkers who
had pooled their money. With their new wealth, Eric and his
wife, Julia, commenced a gifting plan to three family mem-
bers: Julia’s brothers, Andy Wolfe and Jason Wolfe, and Jason
Reed, the husband of Eric’s niece. To avoid taxes, these gifts
were structured as loans with annual payment forgiveness.
Each borrower made a promissory note for his loan, payable
to Julia’s and Eric’s trusts jointly.
Andy’s note was secured by a deed of trust for real property
in Lincoln, Nebraska. Deciding to make a change, Andy sold
his Lincoln property in July 2009 and purchased a new home
with the sale proceeds. Julia had discussed the prospect of the
sale with Eric and told him the new home would not cost Julia
and Eric “any more or less money.” In response, Eric told
Julia she was “going to do what she was going to do.”
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Later that month, after the sale, Andy wired full payment on
the note to Julia’s individual savings account. Without inform-
ing Eric, Julia re-lent all but $22,154.66 of the proceeds to
Andy’s wife, Sara Whitney, for the purchase of the new home.
Whitney made two notes for the loan, payable only to Julia’s
trust. Julia retained the surplus proceeds. There is some dis-
pute as to whether Eric had knowledge of these transactions at
that time.
A couple of weeks after Andy and Whitney paid the old note
and made the new notes, Eric and Julia legally separated. In
October 2009, Eric filed for divorce. During divorce settlement
negotiations, Eric’s attorney made reference several times to
the promissory notes for Andy, Jason Wolfe, and Jason Reed.
However, the final settlement agreement reached in August
2011 did not mention the promissory notes or the proceeds.
Nothing in the record indicates the parties ever discussed the
Whitney notes.
A year later, in August 2012, Julia’s attorney sent a letter
to Eric’s attorney referencing “recent discussions” between
them. The letter stated that Andy’s note had been paid in full
to Julia and that the proceeds were loaned to Whitney. In
response, on October 19, one of Eric’s attorneys sent a let-
ter to Julia’s attorney, demanding Eric’s alleged share of the
note proceeds.
Eric claims that he did not learn that Andy’s house had
been sold until March 2010. He further alleges he discovered
sometime later, presumably around the time of the August
2012 letter, that Julia had retained the proceeds of the sale and
lent money to Whitney. But Julia argues that Eric consented to
her handling of the proceeds. Julia also asserts several affirm­
ative defenses, including, as relevant to this appeal, accord
and satisfaction.
Eric filed his complaint in this action on October 30, 2012,
alleging Julia had converted the proceeds of Andy’s note.
Julia counterclaimed for partition of the Jason Wolfe and
Jason Reed notes. The parties each filed motions for summary
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judgment and motions for expenses, costs, and attorney fees.
The district court granted Julia’s motion for summary judg-
ment. It found that even if Julia had converted the proceeds,
the settlement agreement operated as an accord and satisfac-
tion. The district court also ordered partition of the promissory
notes for Jason Wolfe’s and Jason Reed’s loans by granting
each party a one-half divided interest in proceeds from each.
The district court denied both Julia’s and Eric’s motions for
expenses, costs, and attorney fees.
Eric appeals, and Julia cross-appeals.
ASSIGNMENTS OF ERROR
Eric assigns, consolidated and reordered, that the lower
court erred by (1) denying his motion for summary judgment
on his conversion claim and (2) granting Julia’s motion for
summary judgment on the ground of accord and satisfaction.
In her cross-appeal, Julia assigns the lower court erred in (1)
the method by which it partitioned the Jason Wolfe and Jason
Reed notes and (2) denying her motion for expenses, costs, and
attorney fees.
STANDARD OF REVIEW
[1-3] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts 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.1 When reasonable minds can differ as to whether
an inference can be drawn, summary judgment should not
be granted.2 In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
1
DMK Biodiesel v. McCoy, 290 Neb. 286, 859 N.W.2d 867 (2015).
2
Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015).
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party the benefit of all reasonable inferences deducible from
the evidence.3
[4] A partition action is an action in equity and is reviewable
by an appellate court de novo on the record.4
ANALYSIS
This case presents four primary issues. The first two issues
are interrelated: whether the undisputed facts establish that
Julia committed conversion and whether they also establish
accord and satisfaction. We must next determine the proper
method to partition two promissory notes. Finally, Julia asks
us to review the district court’s denial of expenses, costs, and
fees. Because we find that there exist genuine issues of mate-
rial fact as to both motions, as well as to the value of the
notes, we reverse, and remand.
Eric’s Claim for Conversion.
In his first assignment of error, Eric argues the undisputed
facts show that Julia committed conversion. We disagree.
Section 3-420 of the Uniform Commercial Code (UCC)
states that the common law of conversion applies to negotiable
instruments and also creates a statutory cause of action when,
in part, “a bank makes or obtains payment [on an] instrument
for a person not entitled to enforce the instrument or receive
payment.”5 When a provision of the UCC applies, a litigant
cannot rely on common-law causes of action.6
[5] The parties assume that the common law applies to
suits between copayees; however, we note that § 3-420 could
be construed to apply here. Under the UCC, when a note is
payable to two or more persons not alternately, i.e., joined
by “and” rather than “or,” they may only enforce or receive
3
Rent-A-Roofer v. Farm Bureau Prop. & Cas. Ins. Co., 291 Neb. 786, 869
N.W.2d 99 (2015).
4
Channer v. Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005).
5
Neb. U.C.C. § 3-420(a) (Reissue 2001).
6
Mandolfo v. Mandolfo, 281 Neb. 443, 796 N.W.2d 603 (2011).
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payment jointly.7 Andy’s note was payable to both trusts not
alternately. Therefore, Julia, alone, was not entitled to enforce
the note, potentially bringing this case into the ambit of
§ 3-420.
But we note that the factual disputes discussed below would
be material to a claim under either the UCC or common law.
Therefore, our selection of conversion law in this case would
not affect our decision and we need not determine which
rule applies.
Julia argues she did not commit conversion because she had
Eric’s consent to collect and relend the proceeds. Reviewing
the denial of Eric’s motion for summary judgment, if a reason-
able jury could find that Julia acted with Eric’s consent, then
the district court did not err.8
To prove consent, Julia argued three central facts. First, Julia
presented evidence that starting in July 2009, Eric knew Andy
was planning to sell his house, and that the proceeds would be
used to purchase a new home. Next, Julia relies upon a con-
versation in which she informed Eric of these plans and told
him the new home would not cost “any more or less money”
than was already owed on Andy’s note. Eric responded that
Julia was “going to do what she was going to do.” Finally,
Julia presented e-mail messages between bank and title com-
pany representatives that could infer Eric knew about and
consented to the wire transfer of proceeds to Julia’s individual
savings account.
Eric denies he was aware of the wire transfer and claims
the conversation Julia relies upon is highly ambiguous. Eric
argues that his apparent consent to Andy and Whitney’s pur-
chase of a new home for “any more or less money” hardly
proves he consented to giving Julia his entire interest in the
proceeds from Andy’s note. Further, Julia admits that she
never asked Eric’s permission for the wire transfer and never
informed him of the new notes to Whitney.
7
Neb. U.C.C. § 3-110(d) and comment 4 (Reissue 2001).
8
See Hughes v. School Dist. of Aurora, supra note 2.
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Despite the weaknesses in Julia’s defense as illustrated by
Eric, a reasonable jury could find that Julia acted with Eric’s
consent. Thus, a genuine issue of material fact precludes
Eric’s motion for summary judgment and his first assignment
of error is without merit.
Julia’s Defenses.
In his second assignment of error, Eric argues Julia was not
entitled to summary judgment on the theory that the settlement
agreement constituted an accord and satisfaction. We agree.
[6] To constitute an accord and satisfaction, there must
be (1) a bona fide dispute between the parties, (2) substitute
performance tendered in full satisfaction of the claim, and (3)
acceptance of the tendered performance.9 Whether Eric should
have known that Julia made concessions in the divorce settle-
ment, intending them to satisfy Eric’s claim for proceeds, is
a question of fact.10 A meeting of the minds is essential, and
therefore, there is no accord and satisfaction if one party is not
yet aware of the later-disputed matter.11
The district court found, first, that the parties had a bona
fide dispute at the time of settlement concerning the disposition
of Eric’s half of the note proceeds. Second, the district court
found that Julia had made concessions in settlement negotia-
tions in order to reach an agreement and that the parties had
done so in satisfaction of Eric’s claim of right to the proceeds.
Finally, the district court found that Eric had accepted the
settlement agreement as substitute performance, which was
evidenced by his hearing testimony.
Each of the district court’s findings relies upon an infer-
ence that Eric knew about the proceeds. This inference would
have been permissible had there been no reasonably cred-
ible evidence to the contrary. However, summary judgment
9
Simons v. Simons, 261 Neb. 570, 624 N.W.2d 36 (2001).
10
See Peterson v. Kellner, 245 Neb. 515, 513 N.W.2d 517 (1994).
11
See Mahler v. Bellis, 231 Neb. 161, 435 N.W.2d 661 (1989).
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proceedings do not resolve factual issues, but instead deter-
mine whether there is a material issue of fact in dispute.12
In this case, there was a genuine issue of material fact as to
whether Eric knew about the proceeds. There was evidence to
support a conclusion that Eric was unaware of Julia’s actions
until after the settlement agreement was executed. For exam-
ple, letters from Eric’s divorce attorney during negotiations
consistently listed the original loan to Andy as marital prop-
erty, suggesting that Eric believed his trust still had an interest
in the note to Andy and that the note had not yet been satisfied.
There could be no meeting of the minds, and no agreement for
substitute performance in satisfaction of that dispute, if Eric
did not yet know that the note had been paid off.
Julia alternatively claims that the dispute was over whether
the notes were marital property as opposed to gifts to the loan
recipients. However, the record shows that while she consid-
ered the loans to be gifts, Julia also knew the parties could
cease the gifting plan at any time. Thus, a finder of fact could
reasonably determine there was no bona fide dispute as to the
proper classification of the notes as marital property.
For these reasons, summary judgment on the ground of
accord and satisfaction was improper.
Julia pleaded several additional defense theories before the
district court. These included: failure to state a claim upon
which relief can be granted, laches, estoppel, res judicata, col-
lateral estoppel, waiver, and ratification. The district court did
not pass upon any of these defenses. Julia raised the defenses
of waiver and ratification in the argument section of her appel-
late brief. We find that summary judgment on these theories
is precluded by the same genuine issues of material fact as
pertain to accord and satisfaction. Further, we do not find that
any of the other defenses Julia pleaded below warrant sum-
mary judgment in her favor.
12
O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731
(2014).
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Therefore, Julia was not entitled to summary judgment and
Eric’s second assignment of error has merit. We reverse, and
remand for further proceedings.
Partition of Remaining Notes.
In Julia’s first assignment of error on cross-appeal, she
asserts the district court erred by partitioning the Jason
Wolfe and Jason Reed notes in one-half interests of each to
the parties.
[7] The purpose of a partition action is to divide a jointly
owned interest in real property so that each owner may enjoy
and possess in severalty.13 This court has twice applied the law
of partition to personal property, including one case involving
promissory notes.14
Julia requests that this court grant her the entire Jason Wolfe
note and grant the Jason Reed note to Eric. She argues that
splitting each note as the district court did is legally ineffec-
tive, because the notes still require Julia and Eric to act jointly
as holder under § 3-110.
Eric contends that the district court partitioned the notes
properly. He claims that although the Jason Reed note has a
greater face value, other factors render the Jason Wolfe note
more valuable.
We find merit in both arguments. Because the district
court did not order any assignments of interest when it parti-
tioned the notes, it actually preserved joint management under
§ 3-110. However, if there truly are significant differences
in value between the two notes, Julia’s proposal might not
be equitable.
Thus, upon remand, the parties shall assign their inter-
ests in the notes so that Julia retains complete interest in the
Jason Wolfe note and Eric retains complete interest in the
13
Channer v. Cumming, supra note 4.
14
Hoover v. Haller, 146 Neb. 697, 21 N.W.2d 450 (1946); Riley v. Whittier,
100 Neb. 107, 158 N.W. 446 (1916).
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Jason Reed note so that the parties can independently manage
the notes made by their respective family members. We also
direct the trial court to determine the values of each note, tak-
ing into consideration any relevant factors such as collateral
and financing terms. The district court shall order partition
with an equalization payment as necessary.
Attorney Fees and Costs.
In Julia’s second assignment of error, she argues the district
court should have granted her motion for expenses, costs, and
attorney fees. The district court denied Julia’s motion with-
out explanation.
Julia claims that a provision of the Uniform Trust Code
authorizes the court to award costs and fees, because this is “a
judicial proceeding involving the administration of a trust.”15
Eric denies that the Uniform Trust Code applies. We note, how-
ever, that the applicability of this section is irrelevant, because
the code merely grants courts discretion to award costs and
fees. The record does not indicate the district court abused its
discretion, particularly in light of our decision to remand the
cause for further proceedings. Therefore, Julia’s second assign-
ment of error is without merit.
CONCLUSION
We reverse the summary judgment and remand the cause
for further proceedings not inconsistent with this opinion.
R eversed and remanded for
further proceedings.
Stacy, J., not participating.
15
See Neb. Rev. Stat. § 30-3893 (Reissue 2008).