Lewis v. Poduska

• Decision Date: 27 March 1992
• Docket Number: No. S-89-816,S-89-816
• Citation: 481 N.W.2d 898,240 Neb. 312
• Parties: Nancy Heller LEWIS, Personal Representative of the Estate of Clifford Milton Heller, Deceased, et al., Appellees, v. James D. PODUSKA, Appellant, and All Persons Having or Claiming any Interest in Lot 37, Block 8, Orchard Hill Addition to the City of Omaha, Douglas County, Nebraska, Appellees.
• Court: Nebraska Supreme Court

Page 898

481 N.W.2d 898

240 Neb. 312

Nancy Heller LEWIS, Personal Representative of the Estate of Clifford Milton Heller, Deceased, et al., Appellees, v. James D. PODUSKA, Appellant and All Persons Having or Claiming any Interest in Lot 37, Block 8, Orchard Hill Addition to the City of Omaha, Douglas County, Nebraska, Appellees.

No. S-89-816.

Supreme Court of Nebraska.

March 27, 1992.

Syllabus by the Court

1. Actions. A cause of action consists of the set of facts on which a recovery may be had.

2. Trusts: Property: Unjust Enrichment. Where a transfer of property is made to one person and another pays the purchase price in order to accomplish an illegal purpose, a resulting trust does not arise if the policy against unjust enrichment of the transferee is outweighed by the policy against giving relief to a person who has entered into an illegal transaction.

3. Trusts: Gifts: Loans. Where the alleged trust relationship is just as consistent with that of a gift or loan, courts will not ordinarily impress a resulting trust.

4. Trusts: Intent. A resulting trust arises to give effect to the relationship intended by the parties thereto.

5. Trusts: Property: Intent. A resulting trust does not arise where a transfer of property is made to one person and the purchase price is paid by another if the person by whom the purchase price is paid manifests an intention that no resulting trust should arise.

6. Gifts. The essential elements of a gift inter vivos are donative intent, delivery, and acceptance.

7. Gifts: Intent. Once it is ascertained that it was the intention of the donor to make a gift inter vivos of an undivided interest in a chattel or chose in action, and all is done under the circumstances which is possible in the matter of delivery, the gift will be sustained.

8. Gifts. The delivery of a gift may be symbolic or constructive if the delivery is as nearly perfect and complete as the nature of the property and the attendant circumstances will permit.

9. Gifts. If a gift is absolute, the mere postponement of the enjoyment of it until the death of the donor is not material and will not defeat it.

10. Adverse Possession: Proof. One who claims title by adverse possession must prove by a preponderance of the evidence that he or she has been in actual, continuous, exclusive, notorious, and adverse possession under a claim of ownership for the full 10-year statutory period.

Jeffrey A. Silver, Omaha, for appellant.

Dean J. Sitzmann, of Steier & Kreikemeier, P.C., Omaha, for appellees Lewis and Heller.

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

HASTINGS, Chief Justice.

The defendant James D. Poduska appeals a judgment of the district court which quieted title to certain real estate in the plaintiff Nancy Heller Lewis and awarded damages in favor of the plaintiffs in the amount of $29,802.02. Defendant Poduska assigns as error generally that the trial court imposed a resulting trust upon Poduska in favor of the plaintiffs and rejected Poduska's theory of a gift.

Plaintiff Lewis is the daughter, sole heir at law, and personal representative of the estate of Clifford Milton Heller, deceased. Plaintiff Alfreda M. Heller is Lewis' mother and Clifford's ex-wife. Clifford and Alfreda jointly owned and managed rental properties in Omaha. They continued this venture even after the dissolution of their marriage in 1981.

Poduska was Clifford's nephew. He is the record title owner of Lot 37, Block 8, Orchard Hill Addition, known as 3815 Franklin Street in Omaha.

In 1974, Clifford and Alfreda bought the property located at 3815 Franklin. They did not take title to the property; rather, title was conveyed to Poduska. Alfreda herself recorded the deed conveying title to Poduska.

The purpose of conveying the property to Poduska was to allow Clifford, a licensed real estate agent, to collect a commission from the sellers. Clifford and Alfreda completed at least two, and possibly as many as six, transactions of this kind involving Poduska. Poduska would receive title to the property and would then reconvey it to Clifford and Alfreda upon request. On all other occasions, Poduska had reconveyed the property when asked by Clifford to do so. Poduska never reconveyed title to 3815 Franklin to Clifford and Alfreda. In 1980, Alfreda prepared a deed conveying the property from Poduska to her and Clifford. She gave this deed to Clifford when she prepared it. Alfreda next saw the deed, unexecuted, on Clifford's desk in 1981. Clifford died on September 1, 1986. The deed was still on Clifford's desk and unexecuted when he died.

At all times between the purchase of 3815 Franklin and Clifford's death, Clifford and Alfreda treated the property as their own. From 1974 to 1986, they used it for storage, by and large letting it sit idle. After 1980, Clifford and Alfreda began improving the property, eventually spending $21,628 to that end. Clifford and Alfreda paid property taxes and insurance premiums on the property and after 1980 claimed it on their income tax returns. They began renting the property shortly before Clifford's death in 1986. When Clifford and Alfreda secured a decree of dissolution of their marriage, the property was listed in the decree as a marital asset and was awarded to Clifford.

Poduska did not take possession of the property until after Clifford's death. Poduska acquired a copy of the deed to the property at the county courthouse following Clifford's death. After that time he began collecting rent from the tenant living on the property, paying insurance premiums, and paying property taxes.

Poduska testified that he understood it to be Clifford's intent that he (Poduska) was to have 3815 Franklin when Clifford died. According to Poduska, "[Clifford] told me he has a house that he's going to give me and that I was supposed to take up with the house when he passes away." Clifford told Poduska this at Clifford's home in 1974, shortly after the purchase of the property. Poduska testified that Alfreda was present when the statement was made. He also testified that Clifford reminded him of this promise to give him the property on a number of subsequent occasions.

Clifford also talked about 3815 Franklin with Poduska's wife, Rebecca Poduska, and with Poduska's mother, Betty Poduska. Rebecca Poduska testified that in 1976 Clifford asked her if she knew her husband had a house in Omaha. She also testified that in 1982, Clifford told her he had been working on Poduska's house. Betty Poduska testified that on six or seven occasions, the last being in June 1986, Clifford had told her that her son "owns a house in Omaha."

Clifford's own fiancee, Charmayne Gaye, testified that while reviewing documents in preparing to sign a prenuptial agreement, she saw a reference to 3815 Franklin with Poduska's name handwritten in the adjacent margin. On another occasion, Clifford told her that Poduska was aware that the property was in his name, adding, "[W]hat the hell does he care ... if I die he's got himself a house." On a third occasion, while visiting 3815 Franklin, Clifford again told her that the property was in Poduska's name and that if something happened to him (Clifford), the property would go to Poduska.

In contrast to the above statements, however, Lewis testified that Clifford once told her that 3815 Franklin would someday be hers.

Poduska further testified that Clifford visited Poduska at Poduska's home in Iowa in June 1986, shortly before he died. Clifford did not at that time, nor at any other time, direct Poduska to deed 3815 Franklin to him and/or Alfreda. In the other instances where Poduska took title to property for the Hellers, according to Alfreda's testimony, "Cliff would put [the deed] underneath [Poduska's] nose and say, here, Jim, sign this, and Jim did without reading it or anything."

The district court tried the case upon the plaintiffs' amended petition, which listed three "causes of action" based upon the above-stated facts: to quiet title, for return of wrongfully collected rents, and for unjust enrichment. At this point, mention should be made of the fact that there were not three causes of action alleged. All three theories of recovery were based on one set of facts. " '[A] cause of action consists of the set of facts on which a recovery may be had.' " Lewis v. Craig, 236 Neb. 602, 605, 463 N.W.2d 318, 320 (1990).

In any event, the court determined that the plaintiffs had proved the existence of a resulting trust, and granted them leave to file a second amended petition to conform to the proof. The court then entered its decree, which (1) gave Lewis, as personal representative, fee simple title to 3815 Franklin; (2) ordered Poduska to pay to Lewis, as personal representative, the proceeds from a fire insurance policy covering the property; (3) entered judgment against Poduska in the amount of the rents he had collected from tenants at 3815 Franklin; and (4) taxed to Poduska court costs and postjudgment interest.

If, as claimed by the plaintiffs, Clifford intended that Poduska hold the property in trust for him, Clifford violated Neb.Rev.Stat. § 81-885.24(9) (Cum.Supp.1974), which prohibited a licensed real estate broker from "[a]cting in the dual capacity of agent and undisclosed principal in any transaction," and § 81-885.24(27), which prohibited conduct "[d]emonstrating unworthiness or incompetency to act as a broker, associate broker, or salesman, whether of the same or of a different character as hereinbefore specified." It is apparent that the true purpose of the structure of the various transactions involving Poduska, including the case at bar, was to work a fraud, in violation of the real estate broker licensing statutes, upon the sellers of the properties by collecting an illegal commission by subterfuge.

Conveyances made for fraudulent purposes fall within an exception to the Restatement rule regarding purchase money...