Mock v. Neumeister

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/07/2017 09:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MOCK v. NEUMEISTER
Cite as 296 Neb. 376
Clarence E. Mock III, Special A dministrator
of the Estate of Carl Landgraf, deceased,
appellant and cross-appellee, v. Gail L.
Neumeister and M arlene Neumeister,
appellees and cross-appellants.
___ N.W.2d ___
Filed April 14, 2017. No. S-15-1226.
1. Property: Undue Influence: Equity: Appeal and Error. An action to
set aside inter vivos transfers of property on the basis that they were
made as the result of undue influence is one in equity and, as such, is
reviewed by an appellate court de novo on the record.
2. Judgments: Evidence: Appeal and Error. Despite de novo review,
when credible evidence is in conflict on material issues of fact, the
appellate court will consider and may give weight to the fact that the
trial court observed the witnesses and accepted one version of the facts
over another.
3. Costs: Appeal and Error. The decision of a trial court regarding taxing
of costs is reviewed for an abuse of discretion.
4. Undue Influence: Property: Proof. The elements which must be
proved in order to vitiate a transfer of property on the ground of undue
influence are that (1) the transferor was subject to undue influence, (2)
there was an opportunity to exercise such influence, (3) there was a
disposition to exercise such influence, and (4) the transfer was clearly
made as the result of such influence.
5. Undue Influence: Deeds: Words and Phrases. The undue influence
which will void a deed is an unlawful or fraudulent influence which
controls the will of the grantor.
6. Deeds: Conveyances: Undue Influence. A court, in examining the mat-
ter of whether a deed was procured by undue influence, is not concerned
with the rightness of the conveyance but only with whether it was the
voluntary act of the grantor.
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MOCK v. NEUMEISTER
Cite as 296 Neb. 376
7. Deeds: Undue Influence: Proof. The burden is on the party alleging
the execution of a deed was the result of undue influence to prove such
undue influence by clear and convincing evidence.
8. Evidence: Words and Phrases. Clear and convincing evidence is
evidence which produces in the trier of fact a firm belief or conviction
about the existence of the fact to be proved.
9. Undue Influence. Mere suspicion, surmise, or conjecture does not war-
rant a finding of undue influence; instead, there must be a solid founda-
tion of established facts on which to rest the inference of its existence.
10. Appeal and Error. To be considered by an appellate court, an error
must be both specifically assigned and specifically argued in the brief of
the party asserting the error.
11. Undue Influence: Proof. Undue influence is usually difficult to prove
by direct evidence, and it rests largely on inferences drawn from facts
and circumstances surrounding the testator’s life, character, and men-
tal condition.
12. ____: ____. It is not necessary for a court in evaluating the evidence
of undue influence to separate each fact supported by the evidence and
pigeonhole it under one or more of the four essential elements. The trier
of fact should view the entire evidence and decide whether the evidence
as a whole proves each element of undue influence.
13. Equity: Costs. The taxation of costs in equitable actions is governed by
Neb. Rev. Stat. § 25-1711 (Reissue 2016).
14. Costs: Statutes. Unlike Neb. Rev. Stat. §§ 25-1708 and 25-1710
(Reissue 2016), which provide that costs shall be allowed of course to
the successful party, Neb. Rev. Stat. § 25-1711 (Reissue 2016) gives
the court discretion to tax costs and to apportion such costs between
the parties.
Appeal from the District Court for Otoe County: David K.
A rterburn, Judge. Affirmed.
Thomas M. Locher and Joseph J. Kehm, of Locher,
Pavelka, Dostal, Braddy & Hammes, L.L.C., and William R.
Reinsch, of Reinsch, Slattery, Bear & Minahan, P.C., L.L.O.,
for appellant.
Jeanette Stull and Justin J. Knight, of Perry, Guthery, Haase
& Gessford, P.C., L.L.O., for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, and
Stacy, JJ.
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MOCK v. NEUMEISTER
Cite as 296 Neb. 376
Cassel, J.
I. INTRODUCTION
This is an appeal from a decree refusing to set aside life-
time transfers of real estate claimed to be the result of undue
influence. The ultimate issue before the district court and now
before this court is whether the appellant proved by clear
and convincing evidence that the deeds were the result of
undue influence. Upon our de novo review, we conclude that
the appellant failed to meet his burden of persuasion. And
because we find no abuse of discretion by the district court
in declining to tax costs of depositions, we affirm the district
court’s decree.
II. BACKGROUND
This is a fact-intensive case. The district court heard testi-
mony from 33 live witnesses and received over 200 exhibits
during an 8-day trial. After briefly summarizing the contested
transactions and the proceeding challenging them, we will set
forth the evidence from the trial at considerable length.
1. Transactions Attacked
On June 11, 2011, a couple of weeks prior to Carl Landgraf’s
87th birthday, he executed two joint tenancy warranty deeds
conveying approximately 1,000 acres of his farmland to Gail
L. Neumeister and Marlene Neumeister. In July 2012, Landgraf
executed deeds to fix an error in the earlier deeds. The total
recited consideration for the four deeds was $4.
2. Proceeding Attacking
Transactions
After Landgraf’s death, the probate court appointed Clarence
E. Mock III as special administrator of Landgraf’s estate.
Mock sued the Neumeisters, alleging that the deeds were the
product of undue influence by the Neumeisters and should be
set aside.
The Neumeisters denied that the deeds were the product
of undue influence. But in the event that the district court set
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MOCK v. NEUMEISTER
Cite as 296 Neb. 376
aside the transfers, they filed a counterclaim requesting to be
compensated for improvements made upon the land following
the transfer.
3. Facts Developed at Trial
(a) Before Transaction
(i) Landgraf ’s Family
Landgraf was born in 1924, the youngest of three sons.
Neither Landgraf nor his brothers married or had children.
Landgraf and his brother, Jerome Landgraf (Jerome), were pre-
ceded in death by their parents and brother. They lived nearly
their entire lives on the property originally owned by their par-
ents. Between the two brothers, Jerome was the spokesperson
and decisionmaker. Their house lacked modern amenities. It
had limited electricity. It lacked plumbing and a working fur-
nace or stove. Because there was no bathroom, Landgraf often
used a bucket for a toilet.
The Catholic faith was important to Landgraf’s family.
Landgraf attended Mass and holy days regularly. Items signal-
ing faith and devotion decorated Landgraf’s house. According
to a relative’s testimony, there was a desire to “pay back” the
Catholic church because the church helped Landgraf’s grand-
parents when they immigrated to the United States due to reli-
gious persecution.
In 1995, Jerome began living in a nursing home. He died
on August 25, 2000. Landgraf inherited Jerome’s interest or
was a joint owner with right of survivorship with Jerome for
Jerome’s interest in personal and real property.
(ii) Landgraf ’s Land
Landgraf owned several tracts of farmland in Otoe County,
Nebraska. His home was located on a farm near Dunbar,
Nebraska, which consisted of approximately 1,000 acres of
land. When Landgraf’s father was in charge, the family farmed
most of the land. After Landgraf’s father died, Landgraf and
Jerome “kept putting more and more to grass.” They farmed
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some of the land, but primarily used it for livestock. After
Jerome entered the nursing home, this land was farmed by
Gail for approximately 10 years. Landgraf also owned farms
some distance from his home. These farms were composed
of approximately 80 acres and 160 acres and were farmed by
Robert and Jacqueline Knake and Robert Witte, respectively.
(iii) Relationship With Farmers
a. Neumeisters
In 1978, Gail began helping his brother perform haying
work for Landgraf and Jerome. When Gail’s brother moved in
1983, Gail took over the haying work. In 1995, after Jerome
entered the nursing home, Gail stopped haying and began
farming Landgraf’s land. He had a 60-40 lease arrangement
with Landgraf in which Landgraf received 40 percent of the
income and paid 40 percent of expenses.
In 2004, Gail told Landgraf that he did not want to farm
the land anymore and Landgraf became very upset. According
to Gail, Landgraf offered to cosign on a $67,000 note if Gail
continued to farm the land. The lender subsequently sued the
Neumeisters for failure to pay the loan. In May 2006, the day
before Gail’s equipment and other collateral were to be taken
by the lender, Gail wrote a check for $75,000 payable to him-
self that Landgraf signed.
Landgraf’s attorney, Richard Hoch, tried to work with the
Neumeisters to document some obligation to repay Landgraf,
but he was unsuccessful because the Neumeisters never
returned the instruments that Hoch prepared for their signa-
tures. According to Gail, the arrangement to repay Landgraf
was for Gail “to keep farming or be around” and to “work
it off.” But by the time the loan was paid off, Gail had
ceased farming. Gail stopped farming Landgraf’s land in 2005,
because “the input costs were higher than the output costs.”
Gail testified that he worked off the debt by controlling weeds,
cleaning a road ditch, cutting trees, fixing a roof, and various
other things.
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MOCK v. NEUMEISTER
Cite as 296 Neb. 376
Gail also claimed that he worked off the debt by per-
forming work for Landgraf under the Environmental Quality
Incentives Program (EQIP). This was a “cost share” program
with the government concerning conservation work. Landgraf
had three 10-year EQIP contracts. Gail was the “operator” on
the contracts and also acted as the contractor doing the con-
servation work. He was to perform the work without being
compensated by Landgraf.
Yearly status reviews were performed on EQIP contracts to
check progress. Because costs increased every year, there was
an incentive to complete the work under the contracts sooner
rather than later. Gail failed to perform the work in a timely
manner. In 2007, with essentially only 2 years left on the con-
tracts, only 30 percent of the work had been completed. If the
contracts were not completed as required, the landowner—i.e.,
Landgraf—was subject to liquidated damages.
A resource conservationist with the Natural Resources
Conservation Service testified that Landgraf had “a hard
time understanding what was going on” and expressed fear
about the potential penalties. The conservationist communi-
cated with Hoch about drafting a letter on Landgraf’s behalf
to request that the contracts be canceled. The conservationist
felt that Landgraf’s “lack of understanding, his state of mind,
[and] his anxiety were circumstances that would warrant”
the waiver of penalties upon cancellation. Hoch testified that
Landgraf was upset that the work under the contracts was not
getting accomplished, and Hoch assisted Landgraf in obtain-
ing cancellation without penalties. The conservationist later
met with Landgraf and Gail, and he testified that Gail was
very angry about the cancellation of the contracts and that
Landgraf was very nerv­ous and uncomfortable. At trial, Gail
explained that he was “a little hurt because the amount of
work that I put into it, I never got paid for.”
Landgraf was concerned about Gail’s not farming the land.
Gail continued to store his equipment on Landgraf’s land after
he stopped farming for Landgraf. There was also evidence
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MOCK v. NEUMEISTER
Cite as 296 Neb. 376
that Gail ran a cow/calf operation and kept the livestock on
Landgraf’s pasture without compensating Landgraf. Hoch sug-
gested that Landgraf find another tenant, but Landgraf was
reluctant to terminate Gail’s lease. Gail was unsure whether
he continued to have a lease with Landgraf after he stopped
farming the land, but he testified that he did not pay anything
on any such lease from and after 2005. Gail knew that others
were interested in farming Landgraf’s land. He testified that he
suggested Landgraf should rent the land to someone else and
that he brought someone to try to rent pasture from Landgraf
but Landgraf refused. The Knakes offered to farm the land,
but Landgraf declined the offer due to uncertainty about Gail’s
reaction. Robert testified that Landgraf complained about not
getting enough money off the land to pay the taxes, but that
Landgraf feared Gail would never repay him for the loan if
Landgraf leased the land to someone else. Hoch obtained a
proposal from an individual concerning a 5-year lease, but
Landgraf similarly did not accept it.
In 2005, Gail had a discussion with Landgraf about a sale
and gift of approximately 10 acres of Landgraf’s land. The
land included a residence across the road from Landgraf’s
home. After completion of a survey, Landgraf told Hoch that
he did not want to sell all that land. The transaction did not
occur. According to Gail, he declined the gift because it would
cost too much money to rehabilitate the house on the property.
Hoch testified that “major work” needed to be done to restore
the house, but he had the impression that the transaction did
not occur because Landgraf disagreed with where the stakes
were laid out by the survey and did not want to convey that
much property.
There is no dispute that the Neumeister family helped
Landgraf. If Landgraf or Jerome needed something, they
called the Neumeisters for help. Marlene testified that she
visited Landgraf two to three times a week after Jerome died.
An individual who farmed across the road from Landgraf
observed Gail help Landgraf but never saw anyone else help
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MOCK v. NEUMEISTER
Cite as 296 Neb. 376
him. Another witness observed Gail helping Landgraf “[a]
lot.” Gail considered himself to be Landgraf’s primary care-
giver after Jerome died. Marlene testified about how Gail
missed time with his family in order to help Landgraf. Even
after Gail ceased farming Landgraf’s land in 2005, he con-
tinued to help Landgraf with whatever Landgraf needed or
wanted and visited Landgraf “probably every other day or
every three days.” Gail helped Landgraf because they were
“pretty close friends.”
b. Knakes
The Knakes had long farmed the 80-acre parcel owned by
Landgraf. Robert farmed it for 61 years, and Jacqueline helped
farm the land since 1973. They—like Gail—had a 40-60 crop
share arrangement with Landgraf.
(iv) Earlier Estate Planning
a. 1999 Estate Planning Documents
In 1999, Hoch prepared a will and a charitable trust for
Landgraf. Landgraf’s will named Gail as the personal repre-
sentative and bequeathed all farm equipment to him. It gave
various sums of money to a number of recipients, including
Gail, and gave the remainder of the estate to the charitable
trust. The charitable trust specified that upon Landgraf’s death,
all non-real-estate assets would be held in trust for 25 years
and all net income would be divided in one-fourth interests
and paid on an annual basis to St. Mary’s Catholic Church
of Nebraska City, Nebraska; St. Benedict’s Catholic Church
of Nebraska City; St. Paulinus Catholic Church of Syracuse,
Nebraska; and Lourdes Central Catholic School of Nebraska
City. The charitable trust directed that the real estate be
held for 50 years after Landgraf’s death and then sold, with
the proceeds divided equally between the same four chari-
table beneficiaries.
Gail drove Landgraf to the law office and watched Landgraf
sign the documents. Gail testified that during the meeting,
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MOCK v. NEUMEISTER
Cite as 296 Neb. 376
Landgraf whispered to him that “this isn’t the way I really
want it.” Gail told Landgraf that he could either sign the docu-
ments or ask Hoch to change them.
Hoch testified that Landgraf spent a lot of time thinking
about his estate planning, and Hoch could not imagine that
the documents did not reflect Landgraf’s wishes. According
to Hoch, Landgraf knew what he wanted in terms of estate
planning: He wanted to have a trust, to have his farmland not
sold, and to have the Catholic church as the final recipient.
Hoch also testified that Landgraf “was not a sophisticated cli-
ent” and that he needed somebody to help him with legal and
financial matters.
b. Relationship With Hoch
After 1999
Hoch continued to represent Landgraf after preparing the
1999 estate planning documents. Hoch assisted with Jerome’s
estate by closing the guardianship and conservatorship mat-
ter and opening an intestate estate. As noted, Hoch helped
Landgraf with regard to the loan that Landgraf cosigned and
the EQIP contracts. But Hoch did not recall performing any
legal work for Landgraf after 2007.
A witness recalled an event at a bank in 2006 in which
Landgraf approached Hoch and “was venting some of his
anger” and was “evidently and apparently, very . . . troubled
with a previous discussion; perhaps, an argument.” Gail testi-
fied that in 2007, Landgraf told him that he had been “bul-
lied” by Hoch but that Landgraf would not say what Hoch
had done.
Hoch described his last memory of seeing Landgraf, which
occurred in 2007. He saw Landgraf crying and shaking on
a street in Nebraska City, and Landgraf said that he needed
Hoch’s help. Landgraf told Hoch that “they’re trying to take my
land” and that “[t]hey’re trying to make a new will.” Landgraf
told Hoch that Gail and John Horan, an attorney, were trying
to make Landgraf “change things and take his land.” Hoch felt
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that Landgraf exhibited diminished capacity at that time. He
discouraged Landgraf from continuing a business relationship
with Gail, but Landgraf did not heed Hoch’s advice. Hoch
called Horan and relayed what had happened. Horan recalled
that Hoch told him Landgraf was mad at Hoch because Hoch
told Landgraf that Landgraf was “probably going to have to go
in a nursing home.”
c. 2007 Meeting With Horan
In June 2007, Gail called Horan and said that he wanted
Horan to speak with Landgraf about estate planning. Horan
and two other attorneys had represented Gail in 2002 or 2003
in connection with an automobile accident. According to Gail,
Landgraf selected Horan and Gail speculated that it could
have been because Horan provided services for Gail’s father-
in-law, with whom Landgraf spoke. According to Jacqueline,
Landgraf said that Gail talked him into going to see Gail’s
attorney rather than Hoch and that Landgraf did not want to
do so.
Before Horan met with Landgraf, he received a call from
Hoch expressing concern that Landgraf may not be doing
what Landgraf wanted to do. When Horan met with Gail and
Landgraf about changing Landgraf’s will, Landgraf stated,
upon Horan’s inquiry, that he wanted Gail to be present dur-
ing the consultation. Landgraf told Horan that he was think-
ing about “gifting or selling” 240 acres to the Neumeisters.
Landgraf expressed concern about having to pay capital gains
taxes if he sold the land, and Horan explained that a gift
would not involve any out-of-pocket expense to Landgraf
in taxes. The topic never went beyond dealing with the 240
acres of land. The meeting concluded by Horan’s telling
Landgraf to let Horan know whether Landgraf wanted to sell
the property or give it away, and Horan would then prepare
the appropriate paperwork. Horan never heard back from
Landgraf. He did not have any concerns that Gail was influ-
encing Landgraf.
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(v) Adult Protective Services
Investigations
The Nebraska Department of Health and Human Services
investigated two intakes concerning Landgraf. The first intake,
in 2007, was prompted by Landgraf’s passing out at a funeral,
being filthy and confused, and having a sunken face and gray-
ish coloring. Landgraf thanked the adult protective services
worker for checking on him, assured the worker that he did
not need assistance, and asked not to be checked on again. The
department found self-neglect.
In August 2009, the department received another intake
regarding Landgraf. This intake concerned financial exploita-
tion by Gail. The worker testified that Landgraf was “very
guarded with his information and at times possibly a little
paranoid.” When asked if Landgraf expressed being upset
with Gail about anything, the worker testified that “all he told
me was that it was being taken care of; that I did not need
to worry about it.” Landgraf again refused any assistance.
The worker found no evidence of wrongdoing by Gail. He
testified that Landgraf was not a vulnerable adult, that he
could make his own decisions, and that he was able to “pro-
tect himself.”
(vi) Other Pertinent Testimony
a. Piper Testimony
Irene Piper met Landgraf in approximately 2008. She began
taking him pies on a regular basis. Landgraf told her that he
never wanted to see his land sold. With land and equipment
being so expensive, Landgraf felt that it was impossible to be
able to buy both land and equipment to farm, so he planned to
give—not sell—his land “to his farmers.” These discussions
occurred between 2008 and 2011. Landgraf never mentioned
wanting to give his land to a church. He was upset that some-
one had given money directly to a church in order to keep the
church open and, shortly thereafter, the church closed; thus, the
money did not benefit the community.
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Piper met Gail on one occasion, and Landgraf introduced
him as the person who took care of Landgraf. Piper did not
feel that Gail interfered with her ability to communicate with
Landgraf. She testified that Landgraf did not express any fear
of Gail or show any sign that he was uncomfortable around
Gail. Piper testified that she stopped taking pies to Landgraf,
and instead sent the pies through Gail, when she determined
that Landgraf was becoming increasingly frail.
b. Easter Testimony
Arlene Easter knew Landgraf from when she and her hus-
band did custom farming for him and from selling him crop
insurance. She testified that Landgraf wanted a popular level
of insurance coverage and, even though she sensed that Gail
likely wanted better coverage as the operator, she thought
Landgraf got his way in those situations. Easter always felt like
Landgraf was sufficiently able to make decisions in both the
crop insurance and the banking context. She had the impres-
sion that Gail and Landgraf were friends and that they liked
one another.
c. Knake Family Testimony
Jacqueline felt that Landgraf’s mental capacity remained
consistent over the years. Landgraf became more talkative after
Jerome’s death, and Jacqueline would speak with him in her
vehicle in Landgraf’s yard because he would not allow her in
his house. If Landgraf heard a vehicle drive by, he would ask if
it was Gail. Jacqueline testified that Landgraf seemed to have
a sigh of relief if it was not Gail driving by. Landgraf told the
Knakes that shortly after they would leave, Gail would arrive
and want to know why the Knakes were there.
Craig Knake, the Knakes’ son, recalled an occasion in 2009
where he and Landgraf spoke for 4 to 5 hours in Craig’s vehi-
cle. Every time someone drove by, Landgraf seemed nervous
and asked if it was Gail. Late that night, Gail pulled in behind
Craig and Landgraf and asked what Craig was doing there.
Craig testified that Landgraf “kind of went to mute.” On other
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occasions when Craig spoke with Landgraf, he would notice
Gail drive by several times. According to Craig, Landgraf
shook when discussing Gail. Landgraf told Craig that Gail said
Landgraf needed to see a new attorney, that Landgraf said he
did not want to go, but that Gail grabbed Landgraf by the arm
and said they needed to go talk to the attorney.
Landgraf told Robert that Gail wanted a gift of some land,
and Robert suggested that Landgraf give Gail “the 380 across
the road” if Gail could get the money to farm it. Robert had the
impression that Landgraf and Gail had a close relationship and
that Landgraf trusted Gail. He thought that Gail had “some”
influence over Landgraf’s business decisions.
d. Testimony Concerning Susceptibility
to Undue Influence
Dr. Bennett Blum, a physician specializing in psychiatry
with subspecialties in forensic psychiatry and geriatric psy-
chiatry, performed an assessment related to the deeds at issue.
He never met Landgraf, but he reviewed depositions, legal
briefs, discovery responses, the deeds at issue, documents
from various attorney files, medical records, records from the
Department of Health and Human Services, and police reports.
He testified that “any type of decreased general function leads
to increased dependency or increased reliance on someone
else and, therefore, could increase the susceptibility to being
manipulated and, therefore, to undue influence.” Blum opined
that during the period from 2007 through 2013, Landgraf suf-
fered from a class of cognitive ability referred to as “impaired
executive functions” that was mild to moderate in severity. He
testified that the ability to understand deeds and the conse-
quences of executing deeds or contracts required intact execu-
tive functions. According to Blum, people who are particularly
stubborn or rigid are one of the easiest types of personalities
to manipulate. Blum believed that Landgraf’s cognitive impair-
ment existed during 2011 and that Landgraf was unduly influ-
enced in connection with the deeds.
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At least eight witnesses familiar with Landgraf testified
that he was stubborn and not easily persuaded. Hoch testi-
fied that Landgraf did not make decisions on the spur of the
moment. And an individual who assisted Landgraf with the
preparation of tax documents testified that Landgraf always
seemed to be of sound mind.
Other testimony offered insight on Landgraf’s relationship
with Gail. An individual who owned land next to Landgraf
testified that in March 2011, Landgraf told him that things
were “not too good,” because the Neumeisters were “not
doing what they’re supposed to be doing.” When asked why
Landgraf did not just tell them to leave, Landgraf said that he
could not and that he was “scared of them.” Another witness
testified that Landgraf depended on Gail. But at least six wit-
nesses did not believe that Landgraf was afraid of Gail. Others
testified that Landgraf did not express resentment or anger
toward Gail.
(b) 2011 Estate Planning
Gail testified that in 2011, Landgraf wanted to change
his estate planning documents after an incident in which
Landgraf’s pastor asked Gail to speak to Landgraf about get-
ting his property in better shape. Gail testified that when he
told Landgraf about the conversation, Landgraf “got all upset
and slapped his legs and says why are they always in my busi-
ness?” The pastor did not recall any such conversation.
According to Gail, Landgraf handed him an envelope and
asked him to have Marlene type the writing on the envelope.
Neither Gail nor Marlene discussed the notes on the envelope
with Landgraf. Marlene typed the notes onto three pages of
paper, which pages were half filled, at most. Landgraf’s signa-
ture appears on two of the three pages, but Gail did not recall
when or why Landgraf signed those pages.
After Marlene typed the notes, Landgraf wanted to know
what lawyer he could see. Gail mentioned Hoch and Horan,
but Landgraf said no. Gail and Landgraf drove to Humboldt,
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Nebraska, to see Kelly Werts. Gail testified that he did not
know Werts or anyone at that law firm, although a secretary in
the firm testified that Gail worked with her husband.
Landgraf told Werts about his desire to change his estate
plan. Werts felt that Landgraf seemed alert and intelligent.
Gail testified that at the time of that meeting, he had no idea
how Landgraf wanted to change his estate. Werts testified that
when it became clear estate planning was the focus of the
meeting, Werts asked Landgraf if Gail could stay in the room
and Landgraf said yes. According to Werts, Gail’s role dur-
ing the meeting was as “a bystander,” but he clarified some
details regarding the EQIP program. Werts saw no evidence
that Gail had influenced Landgraf to meet with Werts or that
Gail was influencing any decisions that Landgraf made during
the meeting.
Werts provided insight on why Landgraf did not return
to Hoch for changes to Landgraf’s estate planning docu-
ments. He testified that Hoch had earlier refused to make the
changes that Landgraf wanted. According to Werts, Landgraf
expressed “a general frustration that [Hoch] wasn’t doing what
[Landgraf] wanted done specific to current changes that he
wanted to make” and referred to Hoch’s interference in “mak-
ing [Gail] a . . . tenant on a farm and some [Farm Service
Agency] programs and EQIP programs.” Werts thought that
Landgraf believed all the Nebraska City attorneys were “in
cahoots” with one another and felt that if he spoke with an
attorney from out of town, there may not be as much sharing
of information.
Landgraf handed Werts the typewritten sheets with
Landgraf’s instructions, and Werts went through them line
by line to confirm that they represented Landgraf’s wishes.
Landgraf told Werts that he wanted to give the farm to the
Neumeisters in exchange for their paying Landgraf’s bills.
Landgraf wanted to give 160 acres of land as an outright
gift to the Neumeisters and then to sell the other acres to the
Neumeisters at $350 per acre—a sale that Werts acknowledged
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would be significantly less than fair market value. Landgraf
wanted to give the Knakes and Witte the lands they were
respectively farming upon Landgraf’s death. Landgraf did not
want money to be distributed to the specified charities outright;
instead, he wanted it to be held in trust and “doled out” as
needed by the charities.
Based on the meeting, Werts’ understanding was that
Landgraf’s ultimate goal was to have Gail pay his bills. He
suggested that a better structure, which would be easier to
explain on a tax return, would be to sell some land for a fair
market price to the Neumeisters and then to give as a gift the
balance of the acres. Thus, Werts prepared deeds giving the
Neumeisters 852.82 acres as a gift and transferring 148.09
acres to them in return for a promissory note of $296,180.
Werts also prepared a trust deed for the Neumeisters to
sign in order to secure payment of the note with a lien on
the property.
Werts drafted the “Carl Landgraf Revocable Living Trust.”
The trust directed that upon Landgraf’s death, the trustee—
Gail—was to distribute real estate to the Knakes and Witte and
all remaining real or tangible personal property held by the
trust to Gail. Upon Landgraf’s death, any indebtedness owed
by the Neumeisters was forgiven. According to the document,
the remainder of the trust property was to be held and man-
aged for seven designated charities, which included the four
charities named in the 1999 charitable trust. Fifteen years after
Landgraf’s death, the trustee was instructed to distribute any
remaining principal and interest equally to St. Mary’s Catholic
Church in Nebraska City and St. Paulinus Catholic Church
in Syracuse.
On June 11, 2011, in addition to the two joint tenancy war-
ranty deeds at issue, Landgraf also signed the Carl Landgraf
Revocable Living Trust and powers of attorney naming Gail
as power of attorney for both financial matters and health
care decisions. The secretary at Werts’ law firm testified that
she would not have notarized the deeds if she had concerns
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that Landgraf was being unduly influenced at the time they
were signed. Werts was not present on either occasion when
Landgraf signed the deeds conveying land to the Neumeisters.
The Neumeisters did not sign the promissory note or the trust
deed prepared by Werts; Gail testified that Landgraf did not
want the Neumeisters to sign them.
Landgraf gave the property to the Neumeisters outright
rather than holding it in trust, and Gail testified that Landgraf
said “now you can deal with everything.” Gail “figured
[Landgraf] was tired of the people hounding him and bugging
him.” Gail explained that “the county [had told Landgraf to
deal] with the trees [and] the thistle problem” and that others
were telling Landgraf what he should be doing with the farm.
Werts testified that there was some urgency on Landgraf’s
part in getting the deeds prepared so that Gail could com-
mence farming.
(c) After Transaction
(i) Farming
After the deeds were signed, Gail began farming the prop-
erty. He had a good crop and did not share any of the proceeds
with Landgraf.
(ii) Post-Transfer Payments
Landgraf continued to live in his house after giving the
property to the Neumeisters. Gail testified that the understand-
ing was that he would take care of all of Landgraf’s bills
as long as Landgraf lived, including electric bills, telephone
bills, and groceries. The expenses were to be paid with Gail’s
money. Landgraf’s money would be used if Landgraf wanted
“something special” and for contributions to the church, medi-
cal expenses, and nursing home costs. However, the evidence
showed that Gail paid for some things, such as Landgraf’s
power bill and attorney fees, with Landgraf’s money.
Gail was supposed to use his money to pay the real estate
taxes on the land leased by the Knakes and Witte. An exhibit
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showed that Gail generally used his funds to pay those taxes
for the second half of the 2010 taxes through 2014. However,
Landgraf paid the second half of the taxes for 2011. Gail
testified that Landgraf did so because Landgraf needed some
expenses to offset the extra money that the Witte property was
going to bring. After Landgraf died, Gail paid the taxes out of
Landgraf’s revocable trust.
(iii) Reliance on Gail
In the fall of 2011, Landgraf began driving less and Gail
provided him with transportation. When Landgraf completely
ceased driving, Gail drove Landgraf to Mass every week.
An exhibit containing telephone records showed Landgraf’s
telephone calls. Between January 30, 2012, and January 24,
2013—when Landgraf entered the nursing home—Gail either
called or received a call from Landgraf’s telephone line
6,142 times. Those calls accounted for 81 percent of all of
Landgraf’s incoming or outgoing telephone calls during that
time period.
(iv) Landgraf ’s Hospitalization
and Stay in Nursing Home
On January 25, 2013, Gail took Landgraf to a hospital.
When Landgraf arrived at the hospital, he was covered with
fecal matter. Landgraf was then moved to a nursing home. Gail
visited Landgraf at the nursing home almost every day. The
director of social services at the nursing home testified that
when Landgraf became upset, he would want to talk to Gail
and would become calm after doing so.
Landgraf had anxiety and fear about theft of his property at
the farm. To try to resolve this fear while Landgraf was in the
nursing home, Gail and Landgraf planned to erect a building
on the farm and to move the contents of Landgraf’s house and
outbuildings into it. They planned to put a bedroom, kitchen,
and bathroom in one corner of the building for Landgraf’s use.
Gail purchased materials for the building using funds from
Landgraf’s revocable trust.
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On March 6, 2013, Landgraf had an emergency surgery.
Gail was present for the surgery. The following day, Landgraf
returned to the nursing home. Also on March 7, Gail used the
power of attorney to write a check transferring money from
Landgraf’s personal checking account to the revocable trust
account in order to cover the cost of the building materials
and the nursing home payments. On March 10, Landgraf died
unexpectedly. Because the funds from the March 7 check
were not deposited until March 12—2 days after Landgraf’s
death—Gail reimbursed Landgraf’s estate from the trust in
the amount of $47,500. Gail ultimately did not construct the
building due to Landgraf’s death.
(v) Criminal Investigation
In May or June 2013, the Nebraska State Patrol received
a complaint about a large amount of property that had been
transferred from Landgraf to Gail for little consideration.
There was concern that Landgraf was coerced or not com-
petent to transfer that property. A criminal investigator inter-
viewed Gail twice concerning the circumstances of the prop-
erty transfer. Gail told the investigator that the idea to transfer
the property was Landgraf’s and that Landgraf wanted the
individuals who farmed the ground to own the property
after Landgraf’s death. Gail falsely told the investigator that
Landgraf went to Werts’ office without Gail and that Landgraf
never loaned Gail money. After subpoenaing bank records, the
investigator was satisfied that Gail had not taken actions to
benefit himself.
4. Pertinent Motions
During Trial
At one point during the trial, the Neumeisters moved to dis-
miss for lack of evidence. Counsel explained, “I know [Mock]
hasn’t officially declared that [he has] rested, but for purposes
of preserving the record, my understanding from the case law
is that’s the bench trial equivalent of a directed verdict.” The
district court overruled the motion.
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At the end of the Neumeisters’ case in chief, Mock moved to
dismiss the Neumeisters’ counterclaim. The district court over-
ruled the motion.
At the close of all the evidence, the Neumeisters renewed
their motion to dismiss for want of evidence. Mock also
renewed his motion to dismiss the Neumeisters’ counterclaim.
The district court overruled both motions.
Also at the close of the evidence, the Neumeisters submitted
their motion to determine and tax costs. They requested costs
of $3,025.59.
5. District Court’s Decree
Following the trial, the district court entered a comprehen-
sive 38-page decree. The court stated that it must “consider
a contrasting issue in the realm of the burden of proof.” The
court explained:
[I]t is not completely clear . . . whether proof of a confi-
dential or fiduciary relationship coupled with such suspi-
cious circumstances in a conveyance case strictly applies.
The Court does believe, based on the language found in
[In re Estate of Clinger1], however, that it is likely appli-
cable. As previously stated, the Supreme Court has clearly
delineated a higher standard of proof for the contestant
with regard to cases of conveyance as opposed to will
contests. Therefore, there is some precedent for treating
the two scenarios differently. Ultimately, the case law is
clear that the contestant ([Mock]) carries a clear and con-
vincing burden of proof in order to prevail on his claim
of undue influence and, therefore, must prove those ele-
ments accordingly. This Court will certainly consider any
and all evidence of a confidential or fiduciary relation-
ship coupled with suspicious circumstances . . . that have
been proven in this case in determining whether [Mock]
has met his burden. But the ultimate burden will remain
with [Mock].
1
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
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The district court found that evidence showed a confidential
relationship between Landgraf and Gail prior to the execution
of the 2011 deeds and trust. The court reasoned that because
significant evidence existed which would both support and
negate an inference that the deeds were the result of undue
influence, it could not find that Mock had met his burden of
proof by clear and convincing evidence. The court therefore
found in favor of the Neumeisters on the claim of undue influ-
ence and determined that their counterclaim was moot.
The court sustained the Neumeisters’ motion to tax costs as
to mileage fees, witness fees, and postage. The court overruled
the motion as to deposition costs.
Mock appealed, and the Neumeisters filed a cross-appeal.
We granted Mock’s petition to bypass review by the Nebraska
Court of Appeals.
III. ASSIGNMENTS OF ERROR
Mock assigns that the district court erred in (1) “failing to
set aside the disputed instruments because [Mock’s] evidence
shows a confidential or fiduciary relationship coupled with
suspicious circumstances sufficient to justify an inference of
undue influence,” (2) “failing to set aside the disputed instru-
ments because [the Neumeisters] failed to rebut the inference
of undue influence,” and (3) “failing to dismiss the counter-
claim of [the Neumeisters] as a matter of law.”
On cross-appeal, the Neumeisters allege that the district
court abused its discretion in refusing to tax the costs of origi-
nal depositions to Mock as part of the judgment.
IV. STANDARD OF REVIEW
[1,2] An action to set aside inter vivos transfers of property
on the basis that they were made as the result of undue influ-
ence is one in equity and, as such, is reviewed by an appellate
court de novo on the record.2 Despite de novo review, when
2
See Peterson v. Peterson, 230 Neb. 479, 432 N.W.2d 231 (1988).
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credible evidence is in conflict on material issues of fact, the
appellate court will consider and may give weight to the fact
that the trial court observed the witnesses and accepted one
version of the facts over another.3
[3] The decision of a trial court regarding taxing of costs is
reviewed for an abuse of discretion.4
V. ANALYSIS
1. Undue Influence
(a) Settled Principles of Law
We begin by summarizing well-settled principles governing
an action to set aside a deed on the basis of undue influence.
This establishes our framework.
[4-6] The elements which must be proved in order to viti-
ate a transfer of property on the ground of undue influence are
that (1) the transferor was subject to undue influence, (2) there
was an opportunity to exercise such influence, (3) there was
a disposition to exercise such influence, and (4) the transfer
was clearly made as the result of such influence.5 The undue
influence which will void a deed is an unlawful or fraudulent
influence which controls the will of the grantor.6 The court,
in examining the matter of whether a deed was procured by
undue influence, is not concerned with the rightness of the
conveyance but only with whether it was the voluntary act of
the grantor.7
[7-9] The burden is on the party alleging the execution
of a deed was the result of undue influence to prove such
3
See, Hopkins v. Hopkins, 294 Neb. 417, 883 N.W.2d 363 (2016); Goff v.
Weeks, 246 Neb. 163, 517 N.W.2d 387 (1994).
4
Martensen v. Rejda Bros., 283 Neb. 279, 808 N.W.2d 855 (2012).
5
Fremont Nat. Bank & Trust Co. v. Beerbohm, 223 Neb. 657, 392 N.W.2d
767 (1986).
6
Rule v. Roth, 199 Neb. 746, 261 N.W.2d 370 (1978).
7
Caruso v. Parkos, 262 Neb. 961, 637 N.W.2d 351 (2002).
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undue influence by clear and convincing evidence.8 Clear and
convincing evidence is evidence which produces in the trier of
fact a firm belief or conviction about the existence of the fact
to be proved.9 Mere suspicion, surmise, or conjecture does
not warrant a finding of undue influence; instead, there must
be a solid foundation of established facts on which to rest the
inference of its existence.10
(b) Contrasting Standards
Mock’s petition for bypass proposed to address whether
the standard of proving undue influence should be different
depending upon whether the transfer was inter vivos or testa-
mentary. Traditionally, we have applied different burdens of
proof. In an equitable action, the proponent of an undue influ-
ence theory bears the burden to prove each of the elements by
clear and convincing evidence.11 On the other hand, in a will
contest, undue influence need only be proved by the greater
weight of the evidence.12
[10] But Mock’s brief assigns no error to the district court’s
application of the equity standard, and his brief recites it in
defining our scope of review. To be considered by an appellate
court, an error must be both specifically assigned and spe-
cifically argued in the brief of the party asserting the error.13
Because he did neither, we do not address it.
8
Id.
9
In re Estate of Mecello, 262 Neb. 493, 633 N.W.2d 892 (2001).
10
Caruso v. Parkos, supra note 7; Craig v. Kile, 213 Neb. 340, 329 N.W.2d
340 (1983); McDonald v. McDonald, 207 Neb. 217, 298 N.W.2d 136
(1980); Zych v. Zych, 183 Neb. 708, 163 N.W.2d 882 (1969).
11
Goff v. Weeks, supra note 3.
12
See, Hartley v. Metropolitan Util. Dist., 294 Neb. 870, 885 N.W.2d 675
(2016) (equivalent burdens); In re Estate of Price, 223 Neb. 12, 388
N.W.2d 72 (1986) (will contest burden).
13
In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d 781
(2015).
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(c) Mock’s Formulation of Error
(i) Parties’ Contentions
Mock’s first two assignments of error assert, respectively,
that his evidence justified an inference of undue influence
and that the Neumeisters failed to rebut the inference. This
formulation appears to be driven by language from two
of our opinions: In re Estate of Hedke14 and In re Estate of
Clinger.15
[11] In In re Estate of Hedke, we discussed a “presump-
tion of undue influence.” We began with a truism: One does
not exert undue influence in a crowd; it is usually surrounded
by all possible secrecy. This led to the unremarkable legal
proposition that undue influence is usually difficult to prove
by direct evidence and that it rests largely on inferences drawn
from facts and circumstances surrounding the testator’s life,
character, and mental condition.16 Depending upon the evi-
dence in a particular case, these inferences may drive a fact
finder’s conclusion.
But, after observing that the ultimate burden of persuasion
for undue influence remains with the contestant throughout the
trial, we stated that our “case law on the proof necessary to
rebut a presumption of undue influence is inconclusive.”17
Mock now invites us to “clarify that the burden[-]­shifting
framework [of In re Estate of Hedke and In re Estate of
Clinger] applies to the undue influence challenge to inter vivos
conveyances of real property in this case.”18 On the other hand,
the Neumeisters assert that in In re Estate of Clinger, we “alto-
gether abandoned the ‘presumption of undue influence.’”19
14
In re Estate of Hedke, 278 Neb. 727, 775 N.W.2d 13 (2009).
15
In re Estate of Clinger, supra note 1.
16
See In re Estate of Hedke, supra note 14.
17
Id. at 745, 775 N.W.2d at 29.
18
Brief for appellant at 6.
19
Brief for appellees at 12.
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Moreover, they argue that we “create[d] even more confusion”
by discussing an inference of undue influence.20
(ii) Reasoning of In re
Estate of Clinger
In In re Estate of Clinger, one of the issues on appeal was
the trial court’s refusal of the contestants’ proposed instruc-
tions regarding a “presumption” of undue influence. We reaf-
firmed our holding from 197721 and declared that “the concept
referred to as a ‘presumption of undue influence’ in will con-
tests is not a true presumption” within the meaning of Neb.
Rev. Stat. § 27-301 (Reissue 2016).22 We noted that several
of our cases after 1977 referred to an “‘inference’ of undue
influence,”23 and we discouraged use of the phrase “presump-
tion of undue influence.”
Our core holding in In re Estate of Clinger merely rejected
using the term “presumption of undue influence” in a jury
instruction. We observed that “sound reasons dictate against
using the language of presumption in charging the jury in a
will contest”24 and that “the language of presumption becomes
unimportant and potentially misleading”25 where the contest­
ant met the burden of going forward and the proponent met
the burden of producing contrary evidence. We explained
that in a jury trial, “[a]n instruction that a ‘presumption’ of
undue influence exists would conflict with the statutory bur-
den of persuasion that must be satisfied by the contestant”
and “could easily be seen by a jury as placing the judge’s
imprimatur on the contestant’s claim.”26 Thus, our holding
20
Id. at 14.
21
See McGowan v. McGowan, 197 Neb. 596, 250 N.W.2d 234 (1977).
22
In re Estate of Clinger, supra note 1, 292 Neb. at 253, 872 N.W.2d at 51.
23
Id. at 249, 872 N.W.2d at 48.
24
Id. at 252, 872 N.W.2d at 50.
25
Id. at 253, 872 N.W.2d at 50.
26
Id. at 253, 872 N.W.2d at 50-51.
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in In re Estate of Clinger really has little to do with the case
before us.
In the course of discussing the difference in terminology,
we observed: “If a contestant’s evidence shows a confidential
or fiduciary relationship, coupled with other suspicious cir-
cumstances, the contestant has introduced evidence sufficient
to justify an inference of undue influence. In other words, that
evidence is sufficient to sustain the contestant’s prima facie
case of undue influence.”27 This was not new. We had previ-
ously said:
In an undue influence case the burden of proof, or the
risk of nonpersuasion on that issue, is on the plaintiff
and remains there throughout the trial. . . . In an action
based on undue influence, when a confidential relation-
ship exists between the parties, and a prima facie case is
established, the burden of proof remains on the plaintiff,
but the burden of going forward with the evidence shifts
to the defendants.28
We then said that “[t]he inference of undue influence may be
rebutted by proof that the testator had competent independent
advice and that the will was his or her own voluntary act.”29
But the case from which we drew this language added, “or by
other evidence of the circumstances surrounding the execu-
tion of the will.”30 This language from In re Estate of Clinger
and our statement in In re Estate of Hedke about inconclusive
case law seems to have distracted the parties from the deci-
sive question.
(iii) Effect of Inferences
Given Mock’s assignments of error, the burden-shifting
framework is of little import in this case. Mock’s first two
27
Id. at 253, 872 N.W.2d at 51.
28
Anderson v. Claussen, 200 Neb. 74, 80, 262 N.W.2d 438, 441-42 (1978).
29
In re Estate of Clinger, supra note 1, 292 Neb. at 253-54, 872 N.W.2d
at 51.
30
In re Estate of Novak, 235 Neb. 939, 947, 458 N.W.2d 221, 227 (1990).
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assignments of error assert that the district court erred in fail-
ing to set aside the disputed instruments. He challenges the
court’s ultimate conclusion and does not assert error in failing
to grant the bench trial equivalent of a directed verdict.
A motion to dismiss at the close of all the evidence has the
same legal effect as a motion for directed verdict.31 A party
against whom a motion to dismiss is directed is entitled to
have all relevant evidence accepted or treated as true, every
controverted fact as favorably resolved, and every beneficial
inference reasonably deducible from the evidence.32 A “prima
facie case” means that evidence sufficiently establishes ele-
ments of a cause of action and, notwithstanding a motion
for a directed verdict in a jury trial or a motion to dismiss
in a nonjury trial, allows submission of the case to the fact
finder for disposition.33 Although Mock moved to dismiss
the Neumeisters’ counterclaim, he never moved for the bench
trial equivalent of a motion for directed verdict as to his
claim. Admittedly, a plaintiff has little reason to do so in
a bench trial. And while the Neumeisters did move to dis-
miss Mock’s case, both at the close of his case and at the
close of evidence, they assign no error to the overruling of
their motions.
Because no error is assigned to any ruling on a motion
to dismiss made during the trial, the question is not whether
Mock sustained his initial burden of production or whether the
Neumeisters thereafter sustained some burden of production.
The district court effectively determined that each had done so.
The court properly gave its attention to the ultimate issue—
whether Mock sustained his burden of persuasion.
The question now is whether this court, upon our de
novo review, will reach a different conclusion regarding the
31
American Central City v. Joint Antelope Valley Auth., 281 Neb. 742, 807
N.W.2d 170 (2011).
32
Id.
33
Id.
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elements of undue influence, taking into account the infer-
ences flowing from the evidence. We return to where we
began. The four elements of undue influence are settled
law. And the district court ultimately focused on the cor-
rect elements.
In our de novo review, witness credibility is crucial. Mock
dedicated a portion of his brief to attack Gail’s credibility, and
we have considered his arguments. But we also give weight to
the fact that the trial court observed the witnesses and accepted
one version of the facts over another.34
(d) Evidence as to
Undue Influence
[12] In the context of a will contest, we have stated that it is
not necessary for a court in evaluating the evidence to separate
each fact supported by the evidence and pigeonhole it under
one or more of the four essential elements and that the trier of
fact should view the entire evidence and decide whether the
evidence as a whole proves each element of undue influence.35
We apply the same concept to a claim of undue influence in an
action to set aside a deed.
The evidence shows that Gail was long a part of Landgraf’s
estate planning and that Landgraf had previously contem-
plated giving or selling some of his land to Gail. Landgraf’s
1999 will nominated Gail as the personal representative,
bequeathed all of Landgraf’s farm equipment to Gail, and
gave Gail $2,000. Gail was present when Landgraf executed
the 1999 estate planning documents, and Hoch testified that
he would not have allowed Landgraf to sign the will if Hoch
had concerns about undue influence by Gail. In August 2005,
Hoch prepared a real estate transfer statement in connection
with a gift to the Neumeisters of approximately 10 acres of
Landgraf’s land, but the transaction never occurred. In 2007,
34
See Hopkins v. Hopkins, supra note 3.
35
See In re Estate of Hedke, supra note 14.
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Landgraf conferred with Horan about “gifting or selling” 240
acres to the Neumeisters, but Horan never heard back from
Landgraf. Horan did not have any concerns that Gail was
influencing Landgraf. Then, in 2011, Landgraf met with Werts
about giving a quarter of his land immediately to Gail and
selling other land to the Neumeisters for $350 per acre. As
noted at the outset, Landgraf ultimately gave approximately
1,000 acres to the Neumeisters. Werts did not believe that
Landgraf’s conveyances to the Neumeisters were the result of
undue influence.
After Jerome died in 2000, Landgraf had no surviving imme-
diate family. We agree with the district court’s finding that
“over time, . . . Landgraf developed a very close and almost
familial relationship with Gail.” The evidence established that
Landgraf depended on Gail and called on Gail whenever he
needed assistance. While that may have made Landgraf more
susceptible to influence by Gail, it also provides a logical
reason for Landgraf to give a considerable amount of his real
estate to the Neumeisters.
Piper, who appears to be a disinterested witness, testified
that Landgraf told her he planned to give his land “to his
farmers.” That is precisely what Landgraf did through his
2011 estate planning documents. Although the Neumeisters
had stopped farming Landgraf’s land in 2005, no one has
farmed it since that time. And while the Neumeisters received
considerably more land and received it immediately, Landgraf
also gave to the Knakes and to Witte the land each was farm-
ing. Mock does not contend that those gifts were the result of
undue influence.
This was not a clear-cut case. At first blush, Mock’s reci-
tation of facts in his brief makes a strong argument. But the
Neumeisters’ evidence reveals a more nuanced situation. After
carefully considering the entirety of the record, we are not
firmly persuaded that the deeds executed by Landgraf were the
result of undue influence asserted upon him by Gail.
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2. Counterclaim
The district court determined that the Neumeisters’ coun-
terclaim was moot. On appeal, Mock requests that we dismiss
the counterclaim for lack of evidence if we reverse the dis-
trict court’s decision regarding the setting aside of the deeds.
Because we affirm the court’s decision that the deeds were not
the result of undue influence, we need not further address this
assigned error.
3. Taxing of Costs of
Original Depositions
Prior to entry of the decree, the Neumeisters filed a motion
to determine and tax costs, seeking $3,025.59 to be taxed as
part of the judgment. Those costs included expenses paid for
the original depositions of five individuals. On cross-appeal,
the Neumeisters argue that the district court erred in fail-
ing to tax the costs for original depositions against Mock.
We disagree.
[13] This action sounds in equity. The taxation of costs in
equitable actions is governed by Neb. Rev. Stat. § 25-1711
(Reissue 2016).36 This statute provides that “the court may
award and tax costs, and apportion the same between the par-
ties . . . as in its discretion it may think right and equitable.”37
Although the statute addresses when a court may tax costs, it
does not specify what costs are taxable.38
[14] Assuming without deciding that the depositions could
be taxed as costs, the district court was not required to tax
those costs to Mock. Unlike Neb. Rev. Stat. §§ 25-1708 and
25-1710 (Reissue 2016), which provide that costs “shall be
allowed of course” to the successful party, § 25-1711 gives
the court discretion to tax costs and to apportion such costs
36
City of Falls City v. Nebraska Mun. Power Pool, 281 Neb. 230, 795
N.W.2d 256 (2011).
37
§ 25-1711.
38
See City of Falls City v. Nebraska Mun. Power Pool, supra note 36.
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
MOCK v. NEUMEISTER
Cite as 296 Neb. 376
between the parties. We cannot say that the court abused its
discretion in declining to tax the deposition costs to Mock.
VI. CONCLUSION
We conclude that Mock failed to prove by clear and con-
vincing evidence that the deeds at issue were the result of
undue influence. We find no abuse of discretion by the court in
declining to tax the costs of depositions to Mock. Accordingly,
we affirm the district court’s decree.
A ffirmed.
K elch and Funke, JJ., not participating.