Fee v. Fee

• Decision Date: 13 June 1986
• Docket Number: No. 85-242,85-242
• Citation: 223 Neb. 128,388 N.W.2d 122
• Parties: Pauline FEE, a Single Woman, Appellant, v. Dwight FEE, Appellee.
• Court: Nebraska Supreme Court

Page 122

388 N.W.2d 122

223 Neb. 128

Pauline FEE, a Single Woman, Appellant, v. Dwight FEE, Appellee.

No. 85-242.

Supreme Court of Nebraska.

June 13, 1986.

Syllabus by the Court

1. Actions: Contracts: Rescission: Equity. A proceeding to rescind a written instrument is an equity action.

2. Equity: Appeal and Error. An appeal to the Supreme Court in an equitable action is a trial of factual questions de novo on the record, requiring the Supreme Court to reach a conclusion independent of the findings of the trial court. Neb.Rev.Stat. § 25-1925 (Reissue 1985). The Supreme Court's de novo review of the record is subject to the rule that, where credible evidence is in conflict on a material issue of fact, the Supreme Court will consider the fact that the trial court observed the witnesses and accepted one version of the facts over another.

3. Trial: Courts: Judgments: Appeal and Error. The purpose of Neb.Rev.Stat. § 25-1127 (Reissue 1985), requiring a trial court's separate statements regarding its findings of fact and conclusions of law, is to enable the parties to question the rulings of the court upon legal questions involved.

4. Trial: Courts: Judgments: Equity. When requested by a litigant pursuant to Neb.Rev.Stat. § 25-1127 (Reissue 1985), a special finding of fact, stated separately from a conclusion of law, is a mandatory requirement in a law action tried to the court, and it may be helpful in equity actions.

5. Trial: Courts: Judgments: Equity: Appeal and Error. In equity actions, absence of statements concerning a trial court's findings of fact and conclusions of law, even when requested under Neb.Rev.Stat. § 25-1127 (Reissue 1985), is not prejudicial, because the Supreme Court, in a de novo review of the record, reaches a conclusion independent of any findings by the trial court.

6. Rules of the Supreme Court: Appeal and Error. To be considered by the Supreme Court, errors must be assigned and discussed in the brief of the one alleging error. Neb.Ct.R. of Prac. 9D(1)d (rev.1983).

7. Prejudgment Interest. Prejudgment interest is allowable only where the amount of the claim is liquidated; conversely, where reasonable controversy exists as to the right to recover or as to the amount of such a recovery, the claim is considered to be unliquidated and prejudgment interest is not allowed.

Simon Lantzy of Lantzy & Parsons, and Steven R. Brott, Falls City, for appellant.

Richard L. Halbert, Falls City, and Michael R. Dunn, Ainsworth, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

SHANAHAN, Justice.

Pauline Fee filed an action against her stepson, Dwight Fee, involving a 10-year written lease entered in 1978 for a farm in Richardson County. Pauline's petition contained three causes of action seeking, first, rescission of the lease on account of Dwight's misrepresentation as an inducement to the lease; second, a determination that Dwight had "forfeited" his interest in the lease as a result of abuse and misuse of the leasehold; and, third, if the court found the " 'Farm Lease' is in effect," a declaratory judgment concerning a provision in the lease regarding allocation of expenses between the lessor and lessee. In his answer and cross-petition, Dwight reciprocated Pauline's request for a declaratory judgment and alleged eight additional causes of action--six causes of action (I to VI) to obtain Dwight's reimbursement of expenses in the amount of $27,421.28 incurred during the lease with Pauline from 1979 to 1984, one cause of action (VII) to reform the lease (scrivener's mistake in omitting the provision for the mutually intended allocation of expenses between Pauline and Dwight), and a cause of action (VIII) for an accounting. The causes of action for monetary judgment against Pauline included a prayer for prejudgment interest.

The parties presented evidence about the farm operations under the lease. Pauline's evidence indicated a situation of Dwight's apparent independence in farming, that is, Pauline had no "input" in management of the farm, and Dwight was "managing the farm to suit himself." Evidence included a description of Dwight's particular farming practices bearing upon good husbandry and optimal use of the farmland. Documentary evidence was received, showing an itemization and allocation of farm expenses, such as herbicide, fertilizer, and custom combining, generally shared equally between Pauline and Dwight. Dwight's evidence shows that the expenses, such as those under the lease in question, are borne equally by the lessor and lessee, subject to some adjustments. According to the evidence presented, the total of such expenses, paid by Dwight on behalf of Pauline through the farm year in 1984, was $20,283.79. On Dwight's motion the trial court dismissed Pauline's causes of action regarding misrepresentation and forfeiture.

At the conclusion of trial on December 6, 1984, the court took the case under advisement and allowed the parties until December 20 to submit briefs. On December 19 Pauline filed a "Request by Plaintiff Under Section 25-1127, R.R.S. Nebraska," requesting the trial court to "separately state in writing the conclusions of facts and the conclusions of law in support of its decision" and to "make specific findings" regarding 13 features of the case; for example, "[t]he stated purpose of the farm lease," "the ... conclusions of law as to how the Court can amend or change the lease as entered into between the parties," the basis for any decision concerning the share of expenses borne by each party, the time for payment of expenses, Dwight's ability to "independently determine the expenses to be incurred," "[w]ho shall determine the crops to be planted," and, finally, Pauline requested the court to state the "theory upon which the Court relies in finding [Pauline's] liability" for expenses in farm operations conducted by Dwight under the lease.

In its "Journal Entry and Judgment" of December 27, the trial court dismissed Dwight's causes of action I to VII (reimbursement of expenses and reformation) but found there was a valid lease between Pauline and Dwight and the parties understood that lease expenses would be borne equally. The court then entered judgment in favor of Dwight for $28,219.60, which was comprised of $20,283.79 for Dwight's reimbursement of expenses incurred for Pauline and $7,935.81 as prejudgment interest accrued to the date of trial, December 6. Pretrial interest was assessed by the court at 15.33 percent per annum.

Pauline assigns three errors: (1) The trial court's failure to state findings of fact and conclusions of law as requested; (2) Award of prejudgment interest; and (3) Prejudgment interest at 15.33 percent per annum, contrary to Neb.Rev.Stat. § 45-103 (Reissue 1984) (interest on decree or judgment). See, also, Neb.Rev.Stat. § 45-104.01 (Reissue 1984) (interest on a judgment, 14 percent per annum).

As noted from the assignments of error, Pauline does not assail dismissal of her actions for rescission and forfeiture but, apart from the questions about prejudgment interest, contends the trial court committed reversible error in failing to comply with her request for stated findings of fact and conclusions of law in accordance with Neb.Rev.Stat. § 25-1127 (Reissue 1985). According to Pauline, "It is apparent that the Plaintiff's right to appeal from the decision of the Court was prejudiced by the Court's failure to comply with the Plaintiff's request for separate findings of fact and conclusions of law under Section 25-1127 R.R.S. 1943." Brief for Appellant at 12.

A proceeding to rescind a written instrument is an equity action. Christopher v. Evans, 219 Neb. 51, 361 N.W.2d 193 (1985). An appeal to the Supreme Court in an equitable action is a trial of factual questions de novo on the record, requiring the Supreme Court to reach a conclusion independent of the findings of the trial court. Neb.Rev.Stat. § 25-1925 (Reissue 1985). The Supreme Court's de novo review of the record is subject to the rule that, where credible evidence is in conflict on a material issue of fact, the Supreme Court will consider the fact that the trial court observed the witnesses and accepted one version of the facts over another. American Sec. Servs. v. Vodra, 222 Neb. 480, 385 N.W.2d 73 (1986).

Section 25-1127 provides:

Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of the parties request it, with a view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law.

The purpose of § 25-1127, requiring a trial court's separate statements regarding its findings of fact and conclusions of law, is to enable the parties to question the "rulings of the court upon legal questions involved." Modern Woodmen of America v. Lane, 62 Neb. 89,...