Ficke v. Wolken

• Decision Date: 09 December 2014
• Docket Number: No. A-13-906,A-13-906
• Citation: 858 N.W.2d 249
• Parties: Gerald Ficke, appellee, v. Gilbert Wolken, appellant.
• Court: Nebraska Court of Appeals

858 N.W.2d 249

Gerald Ficke, appellee

v.Gilbert Wolken, appellant.

No. A-13-906

Court of Appeals of Nebraska.

Filed December 9, 2014

Lyle J. Koenig, of Koenig Law Firm, for appellant.

Bradley A. Sipp for appellee.

Inbody, Riedman n, and Bishop, Judges.

Syllabus by the Court

1. Specific Performance: Equity. An action for specific performance sounds in equity.

2. Equity: Appeal and Error. When an equity case is appealed from the district court, the appellate court tries factual issues de novo on the record and reaches a conclusion independent of the findings of the trial court.

3. Equity: Evidence: Appeal and Error. When evidence conflicts in an equity action, an appellate court may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.

4. Contracts: Real Estate. An oral agreement for the transfer of title to real estate is voidable under the statute of frauds.

5. Contracts: Specific Performance: Real Estate. Specific performance of an oral agreement to convey real estate will be enforced by a court of equity where one party has wholly performed his part thereof and the other party has not performed his part, and its nonperformance on the one hand would amount to a fraud on the party who has fully performed it.

6. Contracts: Specific Performance: Real Estate: Proof. A party seeking 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 specific performance.

7. Contracts: Specific Performance: Real Estate: Evidence. In an action for specific performance of an oral contract to convey real estate where partial performance is relied upon to avoid the defense of the statute of frauds, the evidence of the alleged contract and its terms must be clear, satisfactory, and unequivocal.

8. Contracts. A mutual understanding sufficient to establish the terms of a contract may be implied from the conduct of the parties and the surrounding circumstances.

9. Contracts: Evidence: Proof. When the existence and terms of an oral contract have been established by clear, satisfactory, and unequivocal evidence, the contract is nonetheless unenforceable unless it is also proved by clear, satisfactory, and unequivocal evidence that there has been such performance as the law requires.

10. Contracts: Specific Performance: Real Estate. In an action for specific performance of an oral contract to convey real estate where partial performance is relied upon to avoid the defense of the statute of frauds, the acts constituting performance must be such as are referable solely to the contract sought to be

enforced, and not such as might be referable to some other and different contract or relation.

11. Contracts. The unconscionability of a contract provision presents a question of law.

12. Contracts: Words and Phrases. When considering whether an agreement is unconscionable, the term “unconscionable” means manifestly unfair or inequitable.

13. Contracts. A contract can be either procedurally or substantively unconscionable.

14. Contracts: Words and Phrases. Substantive unconscionability involves those cases where a clause or term in the contract is alleged to be one-sided or overly harsh, while procedural unconscionability relates to impropriety during the process of forming a contract.

15. Contracts. A contract is not substantively unconscionable unless the terms are grossly unfair under the circumstances that existed when the parties entered into the contract.

Riedmann, Judge.

INTRODUCTION

Gilbert Wolken appeals from the order of the district court for Gage County which ordered specific performance of an oral contract for the transfer of land from Wolken to Gerald Ficke. Because we find that the evidence establishes that the oral contract falls within an exception to the statute of frauds, we affirm.

BACKGROUND

This case arises out of an alleged oral promise by Wolken to give Ficke 80 acres of farmland after Ficke had worked for Wolken for 10 years. A bench trial was held in the district court, during which the following evidence was adduced:

Ficke began working for Wolken as a farmhand on January 10, 2000. His duties included tending to cattle, maintenance, mechanical work, and other activities associated with farming. Ficke typically worked between 40 and 60 hours per week,

depending on the season, and was “on-call” at all times. He was often called in to work on weekends, after midnight, and during his vacations, but was compensated for his overtime hours. Although his starting wage was only $7.50 per hour, his rate of pay increased to $14.75 per hour by September 2010. He also received bonuses at Christmastime that totaled anywhere from $500 to $2,000.

During the early spring of 2003, Wolken told Ficke that he would give him a specific 80 acres of farmland after Ficke had worked for him for 10 years. Although the agreement was not reduced to writing, they talked about it many times over the years. Wolken would often remind Ficke in January how many years were remaining until he would get the land. For example, in January 2008, Wolken told Ficke, “[T]wo more years and [that 80 acres is] yours.”

According to Ficke, on January 10, 2010, Wolken told him that he had completed his 10 years and that the 80 acres was his. Although Wolken did not sign over the land to Ficke, he started treating it like it belonged to Ficke. For example, after harvest that year, Wolken directed the cooperative where Wolken stored his grain to pay Ficke 40 percent of the wheat proceeds from that 80 acres as rent. Ficke received a check from the cooperative dated July 14, 2010, for over $5,000. Wolken admitted that he directed the cooperative to issue the check to Ficke, but stated the following reason for doing so: “I thought he could perform better on his job, that he'd settle down and make a man of himself.... You do things sometimes to get a guy on the right track.” According to Wolken, the check was a bonus payment.

Ficke also testified that Wolken told him in 2010 that he would need to start paying the taxes on the land. Although Ficke never paid any of the taxes, he testified that he offered to do so many times but that Wolken was unsure of the amount. Wolken repeatedly told him not to worry about it and that they would get it straightened out later.

Ficke testified that he had considered quitting his job with Wolken because he worked constantly, had no family life, and had no health insurance for 5 or 6 years. He further testified that he thought he “could do better,” but that “80 acres after ten years isn't a bad deal either.” When asked why he stayed working for Wolken, Ficke stated: “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.” However, Ficke also admitted that he needed to earn a living and that he was working to support his family.

Ficke testified that he received one offer of employment during the time he worked for Wolken, but that it offered a lower wage than he was earning at that time. Ficke acknowledged that he worked substantially the same hours the entire period of time he worked for Wolken and that his wages increased over that time.

Wolken terminated Ficke's employment on September 28, 2010. According to Wolken, Ficke's employment was terminated due to his temper and the fact that he got “tangled up with [Wolken's] wife.” Ficke testified that Wolken called him a couple of days later and apologized for letting him go. Wolken told Ficke that Wolken could not believe Wolken would let a woman come “between a working relationship like” theirs.

A couple of weeks later, Ficke stopped by Wolken's place to pick up his property. According to Ficke, Wolken told him at that time that he was trying to figure out how he could purchase the 80 acres from Ficke without either of them having to pay too much in taxes. Their conversation was interrupted by Wolken's wife, and they never spoke about it again.

Wolken admitted that in 2003, he promised Ficke the 80 acres “if he fulfilled his job” of providing “good decent help” for 10 years. According to Wolken, he made the promise in order to give Ficke “a better attitude on the job” but Ficke did not work for him for 10 years after that promise was made. Wolken's sister and neighbor testified, however, regarding conversations that took place in 2010 in which Wolken stated that he had given the 80 acres to Ficke for working for him for 10 years.

The district court ruled in favor of Ficke, finding that Ficke's testimony was “completely credible.” It found that Ficke had established an oral contract by clear and unequivocal evidence and that an equitable exception to the statute of

frauds applied because Ficke had performed his part of the contract and such performance was solely referable to the contract sought to be enforced. It determined that Ficke was entitled to specific performance of the oral contract, but ordered further hearing to obtain an adequate legal description of the tract of land in question. After the parties stipulated to the land's legal description, the court awarded the land to Ficke. Wolken timely appeals.

ASSIGNMENTS OF ERROR

Wolken assigns that the district court erred in (1) finding that Ficke established the terms of an oral contract by clear, satisfactory, and unequivocal evidence; (2) finding that Ficke proved by clear, satisfactory, and unequivocal evidence that his performance of the alleged oral contract was referable solely to the alleged oral contract and not to some other contract or relation; and (3) failing to find that the alleged oral contract...