Drew v. Walkup

• Decision Date: 26 June 1992
• Docket Number: No. S-91-666,S-91-666
• Citation: 240 Neb. 946,486 N.W.2d 187
• Parties: Warren DREW and Debbie Drew, Appellants, v. Wilma WALKUP, Personal Representative of the Estate of Donald Walkup, Deceased, Jackie Rohde, Taft Larsen, and Rodney Larsen, Appellees.
• Court: Nebraska Supreme Court

Page 187

486 N.W.2d 187

240 Neb. 946

Warren DREW and Debbie Drew, Appellants, v. Wilma WALKUP, Personal Representative of the Estate of Donald Walkup, Deceased, Jackie Rohde, Taft Larsen, and Rodney Larsen, Appellees.

No. S-91-666.

Supreme Court of Nebraska.

June 26, 1992.

Syllabus by the Court

1. Contracts: Statute of Frauds. The statute of frauds provides that an agreement for the sale of land is void in the absence of a written memorandum signed by the vendor.

2. Contracts: Evidence: Proof. A party seeking to recover upon a lost instrument has the burden of proving the former existence, execution, delivery, theft or loss, and contents of the instrument by clear and convincing evidence.

3. Evidence. Secondary evidence of the contents of a writing is generally admissible where it is shown that the original writing has been lost or destroyed.

4. Declaratory Judgments. An action for declaratory judgment under the provisions of Neb.Rev.Stat. § 25-21,149 et seq. (Reissue 1989 & Supp.1991) is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. The test is whether, in the absence of a prayer for declaratory judgment, the issues presented should be properly disposed of in an equitable as opposed to a legal action.

5. Equity: Injunction: Quiet Title. Injunctive and quiet title lawsuits are both equity actions.

6. Equity: Appeal and Error. In an equity action, an appellate court reviews the record de novo. In such review, the appellate court reaches a conclusion independent of the factual findings of the trial court; however, where the credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. As to questions of law, an appellate court has the obligation to reach its own independent conclusions.

7. Rules of Evidence: Hearsay: Notice. It is not enough that the adverse party is aware of an unavailable declarant's statement; the proponent of the evidence must provide notice to the adverse party of his intention to use the statement in order to take advantage of the hearsay exception.

8. Rules of Evidence: Words and Phrases. Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence, or the evidence tends to establish a fact from which the existence or nonexistence of a fact in issue can be directly inferred.

James D. Sherrets and Karl D. Vogt, Sherrets, Smith & Gardner, Omaha, for appellants.

Joseph C. Byam, Byam & Byam, Omaha, for appellees Walkup and Larsen.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

FAHRNBRUCH, Justice.

Warren and Debbie Drew appeal a district court order finding that they acquired no ownership interest in real estate which they claim to have purchased under a written "rent-to-own" contract. We affirm the findings and order of the district court for Douglas County.

The Drews testified that the alleged written agreement was lost in a fire that partially destroyed the residence located at 834 North 78th Street in Omaha.

The appellants set forth as error the trial court's rulings that (1) hearsay testimony of an unavailable witness was inadmissible, (2) certain testimony of two witnesses was irrelevant, (3) no contract for the sale of the property existed, and (4) appellants were not entitled to damages.

The statute of frauds provides that an agreement for the sale of land is void in the absence of a written memorandum signed by the vendor. Krueger v. Callies, 190 Neb. 376, 208 N.W.2d 685 (1973). A party seeking to recover upon a lost instrument has the burden of proving the former existence, execution, delivery, theft or loss, and contents of the instrument by clear and convincing evidence. In re Estate of Miller, 231 Neb. 723, 437 N.W.2d 793 (1989). Secondary evidence of the contents of a writing is generally admissible where it is shown that the original writing has been lost or destroyed. State ex rel. Mercurio v. Board of Regents, 213 Neb. 251, 329 N.W.2d 87 (1983).

The Drews were the occupants of a residence at 834 North 78th Street from 1983 until the house was damaged by fire on December 28, 1990. Following the fire and after being told to vacate the residence, the Drews filed a petition in the district court An action for declaratory judgment under the provisions of Neb.Rev.Stat. § 25-21,149 et seq. (Reissue 1989 & Supp.1991) is sui generis; whether such action is to be treated as one at law or one in equity is to be determined by the nature of the dispute. Union Ins. Co. v. Bailey, 234 Neb. 257, 450 N.W.2d 661 (1990). The test is whether, in the absence of a prayer for declaratory judgment, the issues presented should be properly disposed of in an equitable as opposed to a legal action. See Chadron Energy Corp. v. First Nat. Bank, 221 Neb. 590, 379 N.W.2d 742 (1986). The Drews also requested injunctive relief and quiet title relief. Injunctive and quiet title lawsuits are both equity actions. See, State v. Melcher, 240 Neb. 592, 483 N.W.2d 540 (1992); Mack v. Luebben, 215 Neb. 832, 341 N.W.2d 335 (1983). In an equity action, an appellate court reviews the record de novo. See State v. Melcher, supra.

for Douglas County, seeking a declaratory judgment, or a determination of their legal rights to the property, injunctive relief prohibiting the transfer or encumbrance of the property, and an order quieting title in them. The Drews named as defendants Wilma Walkup, personal representative of the estate of Donald Walkup, Royal Insurance Service Corp., Jackie Rohde, Taft Larsen, and Rodney Larsen. The court dismissed the action against Royal Insurance Service Corp. before trial. Rohde neither answered the petition nor made an appearance.

In such review, the appellate court reaches a conclusion independent of the factual findings of the trial court; however, where the credible evidence is in conflict on a material issue of fact, the appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another. Id.

As to questions of law, an appellate court has the obligation to reach its own independent conclusions. Id.

The evidence shows that the North 78th Street residence was purchased by Donald Walkup in 1966 from the defendant Jackie Rohde. In May 1989, Rohde executed and delivered a warranty deed conveying the property to Donald Walkup.

Donald Walkup died in November 1990, a few weeks before fire partially destroyed the residence in question. After the fire, counsel for the personal representative of Walkup's estate notified the Drews that they were tenants who occupied the house pursuant to an oral month-to-month lease. The Drews were directed to vacate the residence so the estate could repair and sell it. Defendant Taft Larsen was hired as a general contractor to secure the house after the fire. The defendant Rodney Larsen had agreed to purchase the property.

The Drews testified that they were not mere tenants but, rather, purchasers of the property pursuant to a "rent-to-own contract" or a "land contract" entered into in 1983 by them and Donald Walkup. They testified their only copy of the written document was destroyed in the fire. In support of their claim that the alleged written contract existed, both of the Drews testified that they had contacted Donald Walkup initially about occupying the house when he indicated an interest in selling it. The Drews said they made it clear that they were in no financial position to buy a house, whereupon Walkup offered them a "deal." They testified that they were to live in the house for at least 5 years and that they were to pay Walkup monthly on a rent-to-own basis. The Drews testified the purchase price was $18,000, with monthly payments of $225, of which $150 would be applied to principal and $75 to taxes and insurance. There was no testimony that the Drews would pay interest on the principal from time to time remaining unpaid. The Drews testified that the downpayment would be in the form of "sweat equity," or $4,000 worth of repairs and improvements the Drews would make to the residence. There appears to be no explanation as to how the $4,000 in sweat equity would benefit Walkup if the Drews were purchasing the property. They said Walkup was to purchase the insurance, but it would be "for [their] mutual protection."

The Drews testified that the alleged agreement between them and Walkup was reduced to writing, dated, and executed by Warren Drew, Debbie Drew, and Donald Walkup. Warren Drew, Sr., Warren's father, signed the agreement as a witness, according to the Drews. Walkup kept the original document, and Warren and Debbie Drew received a copy, the Drews testified.

Other than the Drews' testimony, there was no testimony from any witness who claimed to have seen the alleged written agreement. Of the four people the Drews claim took part in the execution of the alleged agreement, two, Donald Walkup and Warren Drew, Sr., were deceased at the time of the trial.

The Drews testified that they made their monthly payments for 7 years either in cash or money order paid directly to Walkup, or in work done at the Walkup personal residence in lieu of payments. Warren testified that Debbie kept track of all the payments made. Debbie offered no testimony regarding any records of monthly payments.

The defendants offered into evidence a receipt for payment which had been filled in and signed by Donald Walkup. It was dated "10-4 1990" and showed that a payment of $225 had been made. It was marked "For Rent of September. " (Emphasis supplied.) Warren Drew testified that after he received the...