Ficke v. Wolken

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FICKE v. WOLKEN
Cite as 291 Neb. 482
Gerald Ficke, appellee, v.
Gilbert Wolken, appellant.
___ N.W.2d ___
Filed July 31, 2015. No. S-13-906.
1. Specific Performance: Equity: Appeal and Error. An action for spe-
cific performance sounds in equity, and on appeal, an appellate court
tries factual questions de novo on the record and, as to questions of both
fact and law, is obligated to reach a conclusion independent from the
conclusion reached by the trial court.
2. Equity: Appeal and Error. On appeal from an equity action, when
credible evidence is in conflict on material issues of fact, an appel-
late court considers and may give weight to the fact that the trial
court observed the witnesses and accepted one version of the facts
over another.
3. Appeal and Error. The Nebraska Supreme Court will not consider
errors which are not properly assigned in a petition for further review
and discussed in the supporting memorandum brief.
4. Fraud: Contracts: Title. An oral agreement for the transfer of title to
real estate is voidable under the statute of frauds.
5. Contracts: Specific Performance: Real Estate: Proof. A party seek-
ing specific performance of an oral contract for the sale of real estate
upon the basis of part performance must prove an oral contract, the
terms of which are clear, satisfactory, and unequivocal, and that the
acts done in part performance were referable solely to the contract
sought to be enforced, and not such as might be referable to some
other or different contract, and further that nonperformance by the
other party would amount to a fraud upon the party seeking spe-
cific performance.
6. Contracts: Partial Performance: Fraud: Testimony: Intent. When
considering the part performance exception to the statute of frauds,
the alleged acts of performance must speak for themselves. Testimony
by the plaintiff as to his or her intent in rendering the performance, by
itself, is insufficient.
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7. Evidence: Witnesses. The admissions by a party to an action upon a
material matter are admissible against him or her as original evidence.
8. ____: ____. An admission may be made by conduct as well as orally or
in writing.
9. ____: ____. As a general rule, any act or conduct on the part of a party
which may fairly be interpreted as an admission against interest on a
material issue may be shown in evidence against him or her.
10. ____: ____. Where a party on the trial of an action advances contentions
which are inconsistent with his or her prior conduct with respect to the
matter in controversy, such prior conduct may be shown as being in the
nature of an admission.
Petition for further review from the Court of Appeals,
Inbody, R iedmann, and Bishop, Judges, on appeal thereto from
the District Court for Gage County, Paul W. Korslund, Judge.
Judgment of Court of Appeals affirmed.
Lyle J. Koenig, of Koenig Law Firm, for appellant.
Bradley A. Sipp for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Cassel, J.
INTRODUCTION
An employee, relying upon the part performance excep-
tion to the statute of frauds, alleged that his former employer
breached an oral contract to convey real estate. Gerald Ficke
claimed that the employer promised him 80 acres of farmland
if he continued his employment for a period of 10 years. The
Nebraska Court of Appeals affirmed a decree in Ficke’s favor,
concluding that he had proved part performance.1 Although
we ultimately agree that Ficke proved part performance, we
disapprove of the Court of Appeals’ reliance upon Ficke’s tes-
timony as to his intent. To prove part performance, the alleged
acts of performance must establish the exception without the
1
See Ficke v. Wolken, 22 Neb. Ct. App. 587, 858 N.W.2d 249 (2014).
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aid of such testimony. Because there was other sufficient evi-
dence, we affirm.
BACKGROUND
In January 2000, Ficke began working for Gilbert Wolken
as a “hired hand.” Ficke performed cattle work, maintenance,
mechanical work, and general farm work. He worked various
hours depending on the season, ranging from 40 to 60 hours
per week. And he was always “on-call” and expected to fix
any issues that might arise, regardless of what he was doing.
When Ficke began his employment, he earned $7.50 per hour.
But at the time of his employment’s termination, his wages
had risen to $14.75 per hour. He was also paid overtime
and usually received an annual bonus extending from $500
to $2,000.
According to Ficke, Wolken promised him the 80 acres
of farmland sometime in 2002 or 2003. At the time of the
promise, Ficke and Wolken were driving in Wolken’s pickup.
Ficke looked down at his shoes and said, “[T]here’s the only
ground I’ll ever own.” Wolken responded that he would make
Ficke a deal. Wolken told Ficke, “After working ten years
. . . for me, I will give you 80 acres.” And Wolken indicated
that the 80 acres were the first 80 acres that Wolken had
ever purchased.
Although Ficke worked for Wolken for approximately 10
years 9 months, Wolken never signed over the 80 acres to Ficke.
And Wolken terminated Ficke’s employment in September
2010. In March 2011, Ficke filed a complaint against Wolken
alleging that Wolken had breached the oral contract.
A bench trial was conducted before the district court, and
Ficke testified as to his relationship with Wolken. Ficke indi-
cated that he and Wolken were “[v]ery good friends” and that
he considered Wolken to be a “father figure.” Ficke described
that he and Wolken would participate in various activities that
“friends and family do together,” such as eating together on
birthdays, attending concerts, and celebrating holidays.
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As to his reaction to Wolken’s promise, Ficke testified that
he was overwhelmed and that he “didn’t really know how
to take it.” Ficke told Wolken that he did not have to give
Ficke the land, but Wolken insisted. And Ficke indicated that
Wolken raised the matter many times. Wolken would mention
the promise “every so often” and would remind Ficke, usually
in January, that Ficke had only “another year or two years,”
depending on the year.
And Ficke iterated that Wolken’s promise was a significant
factor for his continued employment.
[Ficke’s counsel:] During this ten-year, nine-month
span of time that you worked for . . . Wolken, did you
ever think about quitting?
[Ficke:] Oh, yes.
Q. Why?
A. Well, I worked constantly. I had no family life,
insurance. I had no health insurance for, I don’t know,
five, six years. I just, you know, I always thought, you
know, that I could do better, but then in the back of
[my] mind, yeah, 80 acres after ten years isn’t a bad
deal either.
Q. Did you ever decide to stay working for . . . Wolken
because of his promise?
[Wolken’s counsel:] We will object on the ground that
it’s leading and suggestive, Your Honor.
THE COURT: Sustained.
[Ficke’s counsel:] Well, you testified that you thought
about quitting before. Why did you stay with him?
[Ficke:] Well, 80 acres, and farming, that’s what I
loved. I loved to farm. And after the ten years, a bonus
like that is something that a person works for.
According to Ficke, on January 10, 2010, Wolken told
him that he had completed the 10 years of employment and
that the 80 acres belonged to Ficke. Although Wolken never
signed over the 80 acres, Ficke described one instance when
Wolken treated the 80 acres as belonging to Ficke. During
harvest season, all of the wheat from the 80 acres was
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kept separate and Wolken instructed the cooperative to pay
Ficke 40 percent of the profit from the wheat. Additionally,
before Ficke’s employment was terminated, Wolken offered
to purchase a house for Ficke in exchange for the 80 acres.
Ficke agreed to the proposal, but the purchase offer was
not accepted and the deal “fell through.” And after Ficke’s
employment was terminated, Wolken discussed the 80 acres
with Ficke and mentioned that he was attempting to determine
how he could purchase the 80 acres from Ficke with minimal
tax consequences.
The district court also received portions of Wolken’s depo-
sition testimony, and Wolken confirmed the existence of the
promise. Wolken testified that he promised Ficke “[e]ighty
acres of land if [Ficke] fulfilled his job.” And Wolken stated
that in order to fulfill his job, Ficke was required to “[a]ct like
a decent man.” Wolken explained that he wanted to give Ficke
a “better attitude on the job.” But Wolken did not believe that
Ficke had fulfilled his obligations.
According to Wolken, Ficke’s temper was an issue and
Ficke would argue with Wolken’s wife and call Wolken names.
Wolken testified that Ficke “was dangerous to be around,” and
he described one instance in which Ficke had intentionally set
fire to bales of straw and another in which Ficke had thrown a
telephone at the windshield of Wolken’s vehicle.
Additionally, the district court received testimony from
Wolken’s sister. Wolken’s sister testified that after Wolken had
fired Ficke, Wolken told her that he had promised Ficke the 80
acres and that Ficke had completed the 10-year period.
After trial, the district court entered a decree (styled as an
“order”) granting Ficke specific performance of the contract.
The court determined that Ficke’s testimony was “completely
credible” and that Ficke would not have fulfilled the 10 years
of employment but for Wolken’s promise to convey the 80
acres. Thus, the court concluded that the part performance
exception to the statute of frauds applied, because “[t]o not
enforce performance by Wolken would amount to a fraud
upon Ficke.”
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Cite as 291 Neb. 482
Wolken filed a timely notice of appeal, and the case was
assigned to the Court of Appeals’ docket. On appeal, the
Court of Appeals determined that Ficke had met his burden
of proving the existence of the oral contract and its terms by
clear, satisfactory, and unequivocal evidence. As to Ficke’s
performance of the contract, the Court of Appeals relied upon
Ficke’s testimony in concluding that his continued employment
for the 10-year period was referable solely to the oral contract.
It therefore affirmed the granting of specific performance in
Ficke’s favor.
We granted Wolken’s petition for further review.
ASSIGNMENTS OF ERROR
Wolken assigns, restated, that the Court of Appeals erred in
(1) concluding that Ficke established by clear, satisfactory, and
unequivocal evidence that his continued employment for 10
years was referable solely to the oral contract to convey the 80
acres and (2) applying a subjective, rather than an objective,
test to determine whether Ficke had partially performed the
oral contract.
STANDARD OF REVIEW
[1] An action for specific performance sounds in equity,
and on appeal, an appellate court tries factual questions de
novo on the record and, as to questions of both fact and law, is
obligated to reach a conclusion independent from the conclu-
sion reached by the trial court.2
[2] On appeal from an equity action, when credible evidence
is in conflict on material issues of fact, an appellate court
considers and may give weight to the fact that the trial court
observed the witnesses and accepted one version of the facts
over another.3
2
Langemeier v. Urwiler Oil & Fertilizer, 265 Neb. 827, 660 N.W.2d 487
(2003).
3
Twin Towers Condo. Assn. v. Bel Fury Invest. Group, 290 Neb. 329, 860
N.W.2d 147 (2015).
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ANALYSIS
[3] In his petition for further review, Wolken does not chal-
lenge the Court of Appeals’ conclusion that Ficke met his
burden of proving the existence and terms of the oral contract
by clear, satisfactory, and unequivocal evidence. Although we
understood Wolken at oral argument to raise various asser-
tions regarding the existence of the contract and its terms, we
will not consider errors which are not properly assigned in
a petition for further review and discussed in the supporting
memorandum brief.4 Thus, we restrict our analysis to Wolken’s
specific assignments of error, both of which address the Court
of Appeals’ conclusion that Ficke’s performance was referable
solely to the oral contract.
[4] It is clear that unless some exception applies, Ficke’s
claim to enforce the promise to convey the 80 acres was barred
by the statute of frauds. An oral contract to convey land falls
under the statute of frauds.5 And it is the general rule that an
oral agreement for the transfer of title to real estate is voidable
under the statute of frauds.6
Nebraska’s statute of frauds applicable to the sale of an
interest in land provides:
No estate or interest in land, other than leases for a
term of one year from the making thereof, nor any trust or
power over or concerning lands, or in any manner relat-
ing thereto, shall hereafter be created, granted, assigned,
surrendered, or declared, unless by operation of law, or
by deed of conveyance in writing, subscribed by the party
creating, granting, assigning, surrendering or declaring
the same.7
4
See Steele v. Sedlacek, 261 Neb. 794, 626 N.W.2d 224 (2001).
5
See Neb. Rev. Stat. §§ 36-103 to 36-105 (Reissue 2008).
6
Hackbarth v. Hackbarth, 146 Neb. 919, 22 N.W.2d 184 (1946).
7
§ 36-103.
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Thus, because Ficke did not assert the existence of any docu-
ment signed by Wolken which could satisfy the statute of
frauds, some exception must apply to permit Ficke’s claim.
[5] As observed by the Court of Appeals, an exception to
the statute of frauds authorizes specific performance of an
oral contract in cases of part performance.8 A party seek-
ing specific performance of an oral contract for the sale of
real estate upon the basis of part performance must prove
an oral contract, the terms of which are clear, satisfactory,
and unequivocal, and that the acts done in part performance
were referable solely to the contract sought to be enforced,
and not such as might be referable to some other or differ-
ent contract, and further that nonperformance by the other
party would amount to a fraud upon the party seeking spe-
cific performance.9
The Court of Appeals determined that Ficke had satisfied
the part performance exception for two reasons: (1) Ficke con-
tinued his employment for the 10-year period and (2) Ficke’s
testimony indicated that his continued employment was refer-
able solely to the promise of the 80 acres and not to some
other contract or relationship.
We first address the Court of Appeals’ reliance upon Ficke’s
testimony as to his intent. In determining that Ficke’s contin-
ued employment was referable solely to the oral contract, the
Court of Appeals cited the portion of Ficke’s testimony quoted
above—that Ficke had thought about quitting, but that the
promise of the 80 acres was “something that a person works
for.” The Court of Appeals determined that this testimony
established the part performance exception, because it proved
that the “sole reason [Ficke] continued his employment was to
attain the land that was promised.”10
8
See American Central City v. Joint Antelope Valley Auth., 281 Neb. 742,
807 N.W.2d 170 (2011).
9
Id.
10
Ficke, supra note 1, 22 Neb. Ct. App. at 595, 858 N.W.2d at 257.
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We disapprove of this reliance upon the above testimony
as the sole basis for the part performance exception. The
part performance exception entails an onerous burden of
proof—a plaintiff must prove not only that the alleged per-
formance is referable to the oral contract, but also that the
performance “cannot be accounted for on any other reasonable
hypothesis.”11 Multiple courts have recognized that in satisfy-
ing this high burden, the alleged acts of performance must
speak for themselves.12 As expressed by the Supreme Court
of Connecticut:
[W]e have found no cases, nor have the plaintiffs pointed
us to any, in which testimonial evidence as to intent,
rather than actions, was probative evidence of part per-
formance. Indeed, if we were to accept as dispositive
testimony that a party would not have undertaken the
action “but for” the other party’s promise, this lim-
ited exception to the statute of frauds would swallow
the rule.13
Without a focus upon a plaintiff’s acts, “the statute of frauds
could be avoided whenever a plaintiff claimed that he under-
took any act in reliance on an alleged agreement.”14
[6] This reasoning is consistent with both our prior case law
and the purpose of the statute of frauds.15 We therefore hold
that to establish the part performance exception, the alleged
acts of performance must speak for themselves. Testimony
11
Crnkovich v. Crnkovich, 144 Neb. 904, 907, 15 N.W.2d 66, 68 (1944).
12
See, Owens v. M.E. Schepp Ltd. Partnership, 218 Ariz. 222, 182 P.3d 664
(2008); Glazer v. Dress Barn, Inc., 274 Conn. 33, 873 A.2d 929 (2005).
13
Glazer, supra note 12, 274 Conn. at 71, 873 A.2d at 953.
14
Owens, supra note 12, 218 Ariz. at 228, 182 P.3d at 670.
15
See, Halsted v. Halsted, 169 Neb. 325, 329, 99 N.W.2d 384, 387 (1959)
(observing that statute of frauds “would be reduced to a mere shell” if
party was permitted to await death of other parties and satisfy statute
solely by his testimony); Hackbarth, supra note 6 (rejecting plaintiff’s
claim of alleged oral contract to convey personal property under statute
of frauds and observing that evidence of such contract consisted solely of
plaintiff’s testimony).
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by the plaintiff as to his or her intent in rendering the per­
formance, by itself, is insufficient.
Having identified the proper framework, we turn to the
alleged acts of performance to determine whether they are suf-
ficient to establish the part performance exception. As previ-
ously indicated, in this case, the alleged acts of performance
constitute Ficke’s continued employment for the 10-year
period. Wolken contends that Ficke’s continued employment
was insufficient, because there was no basis to distinguish
between Ficke’s continued employment under his regular
employment contract and his continued employment pursuant
to the promise of the 80 acres.
Wolken’s argument is premised upon two prior cases in
which we found the claimants’ continued employment insuf-
ficient to prove part performance. In Theobald v. Agee,16 an
employer allegedly promised two of his employees that he
would leave them an interest in a farm in his will if they
remained in his employ. Upon the employer’s death, one of the
employees filed suit, alleging that he had performed the con-
tract by remaining in his employment until the company had
been sold. But we determined that the employee’s continued
employment “was equally referable to his employment contract
with the [c]ompany, under which contract he received payment
for his services.”17
And in In re Estate of Layton,18 an employer allegedly
promised an employee that he would execute a will leav-
ing a store and inventory to the employee in return for the
employee’s serv­ice. The employee filed suit and claimed that
he had remained at the store, working 10 hours per day, 6
days per week, at what he felt were low wages, because of
the employer’s promise. Like Theobald, we found no basis
to distinguish the claimant’s performance of his employ-
ment contract from his performance of the alleged promise.
16
Theobald v. Agee, 202 Neb. 524, 276 N.W.2d 191 (1979).
17
Id. at 533, 276 N.W.2d at 196.
18
In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817 (1982).
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The employee continued to be compensated for his services
and received annual raises in his compensation. Further, the
employee admitted that he did not agree to do anything more
for the employer pursuant to the alleged promise.
However, we find this case distinguishable from Theobald
and In re Estate of Layton. In both those cases, the employer
was deceased at the time the employee brought the claim. Thus,
a risk for fraud existed upon the employer’s estate. We have
previously recognized that “‘[c]ourts of justice lend a very
unwilling ear to statements of what dead men have said.’”19
“‘Unsupported testimony of a single person as to a conversa-
tion between himself and a deceased person is regarded as the
weakest of all kinds of evidence.’”20
But in this case, the propensity for fraud against the
employer or the employer’s estate was nonexistent. In his
deposition testimony, Wolken admitted to promising the 80
acres to Ficke. Thus, rather than fraud against the employer,
the possibility for fraud in this case existed only as against
Ficke. With respect to the part performance exception, we
have stated that the alleged part performance must be “some-
thing that the claimant would not have done unless on account
of the agreement and with the direct view to its performance—
so that nonperformance by the other party would amount to
fraud upon him.”21
We find the evidence received by the district court suf-
ficient to support its conclusion that Ficke would not have
continued his employment but for the promise of the 80 acres
and that he did so with the 80 acres as his direct view. In
doing so, we give weight to the fact that the district court
heard Ficke’s testimony and found it credible. Ficke testified
that he “worked constantly” and was always “on-call,” that
19
Johnson v. Kern, 117 Neb. 536, 546, 225 N.W. 38, 42 (1929), quoting Lea
v. Polk County Copper Co., 62 U.S. (21 How.) 493, 16 L. Ed. 203 (1858).
20
Johnson, supra note 19, 117 Neb. at 546, 225 N.W. at 42, quoting Lippert
v. Pacific Sugar Corporation, 33 Cal. App. 198, 164 P. 810 (1917).
21
Overlander v. Ware, 102 Neb. 216, 218, 166 N.W. 611, 612 (1918).
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he had no family life or health insurance, and that he always
believed he “could do better.”
Additionally, the district court received evidence of Wolken’s
own statements and conduct admitting that Ficke had fully
performed his obligation and that Ficke was entitled to the 80
acres. Wolken’s sister testified that Wolken had told her that
Ficke had completed the 10-year period. And Wolken granted
Ficke payment for a portion of the wheat harvested from the
80 acres and had attempted to purchase a house for Ficke as a
substitute for the 80 acres.
[7-9] Wolken’s statement to his sister and his treatment of
the 80 acres as belonging to Ficke are critically important as
admissions. The admissions by a party to an action upon a
material matter are admissible against him or her as original
evidence.22 And an admission may be made by conduct as well
as orally or in writing.23 Thus, as a general rule, any act or con-
duct on the part of a party which may fairly be interpreted as
an admission against interest on a material issue may be shown
in evidence against him or her.24
[10] By admitting to his sister that Ficke had fully per-
formed and in attempting to substitute the house for the
80 acres, Wolken admitted that Ficke was entitled to the
80 acres. Thus, Wolken effectively admitted that Ficke’s
per­formance was referable solely to the oral contract. And
Wolken’s actions regarding the wheat harvest further dem-
onstrated Wolken’s belief that Ficke was the owner of the 80
acres. Wolken’s admissions treated the contract as performed
and the 80 acres as belonging to Ficke; thus, his contention
that Ficke’s performance was not referable solely to the con-
tract is inconsistent with his own statements and conduct.
Where a party on the trial of an action advances contentions
which are inconsistent with his or her prior conduct with
respect to the matter in controversy, such prior conduct may
22
Silvey & Co., Inc. v. Engel, 204 Neb. 633, 284 N.W.2d 560 (1979).
23
32 C.J.S. Evidence § 530 (2008).
24
Id.
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be shown as being in the nature of an admission.25 We there-
fore consider Wolken’s statements and conduct as additional
evidence that Ficke’s performance was referable solely to
the contract.
Giving no consideration to Ficke’s testimony as to his
intent, we find the evidence regarding Ficke’s acts—particu-
larly Wolken’s admissions by statements and conduct—is suf-
ficient to establish that his continued employment for the
10-year period was referable solely to the oral contract. Thus,
although for different reasons from those stated by the Court
of Appeals, we agree that Ficke’s claim as to the 80 acres was
enforceable under the part performance exception to the statute
of frauds.
CONCLUSION
Although Ficke’s claim regarding the 80 acres fell directly
within the statute of frauds, it was enforceable under the part
performance exception. The evidence, particularly Wolken’s
admissions by statements and by conduct, was sufficient to
establish that Ficke’s performance of the oral contract was
referable solely to the promise of the 80 acres. And our analy-
sis gives no consideration to Ficke’s testimony as to his intent.
We emphasize that a claimant’s testimony as to his or her
intent in rendering performance is insufficient to establish the
exception. Under the part performance exception, the alleged
acts of performance must speak for themselves. We therefore
disapprove of the Court of Appeals’ reliance upon Ficke’s tes-
timony as to his intent. But because there was other sufficient
evidence, we affirm the granting of specific performance in
Ficke’s favor.
A ffirmed.
Stephan, J., not participating.
25
Id.