Ficke v. Wolken

            Decisions     of the    Nebraska Court of Appeals
	                                FICKE v. WOLKEN	587
	                              Cite as 22 Neb. App. 587

                        Gerald Ficke, appellee, v.
                        Gilbert Wolken, appellant.
                                    ___ N.W.2d ___

                      Filed December 9, 2014.      No. A-13-906.

 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 spe-
     cific 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 nonperform­
     ance by the other party would amount to a fraud upon the party seeking spe-
     cific 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 con-
     tract 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, satisfac-
     tory, and unequivocal evidence that there has been such performance as the
     law requires.
10.	 Contracts: Specific Performance: Real Estate. In an action for specific per-
     formance 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
   Decisions of the Nebraska Court of Appeals
588	22 NEBRASKA APPELLATE REPORTS


        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 proc­
        ess 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.

  Appeal from the District Court for Gage County: Paul W.
Korslund, Judge. Affirmed.
       Lyle J. Koenig, of Koenig Law Firm, for appellant.
       Bradley A. Sipp for appellee.
       Inbody, Riedmann, and Bishop, Judges.
       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,
         Decisions   of the  Nebraska Court of Appeals
	                         FICKE v. WOLKEN	589
	                       Cite as 22 Neb. App. 587

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 any-
where 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
   Decisions of the Nebraska Court of Appeals
590	22 NEBRASKA APPELLATE REPORTS



ten years isn’t a bad deal either.” When asked why he stayed
working for Wolken, Ficke stated: “Well, 80 acres, and farm-
ing, 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 dur-
ing 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 ter-
minated 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 pur-
chase 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 unequivo-
cal evidence and that an equitable exception to the statute of
        Decisions   of the  Nebraska Court of Appeals
	                        FICKE v. WOLKEN	591
	                      Cite as 22 Neb. App. 587

frauds applied because Ficke had performed his part of the
contract and such performance was solely referable to the con-
tract sought to be enforced. It determined that Ficke was enti-
tled 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 rela-
tion; and (3) failing to find that the alleged oral contract was
unenforceable as against public policy.
                   STANDARD OF REVIEW
   [1-3] An action for specific performance sounds in equity.
Sayer v. Bowley, 243 Neb. 801, 503 N.W.2d 166 (1993).
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. Id. When the evidence conflicts, however, the appellate
court may give weight to the fact that the trial court observed
the witnesses and accepted one version of the facts over
another. Id.
                           ANALYSIS
   [4,5] It is the general rule that an oral agreement for the
transfer of title to real estate is voidable under the statute of
frauds. Hackbarth v. Hackbarth, 146 Neb. 919, 22 N.W.2d
184 (1946); Neb. Rev. Stat. §§ 36-103 and 36-105 (Reissue
2008). A well-known exception to that rule, however, is that
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
   Decisions of the Nebraska Court of Appeals
592	22 NEBRASKA APPELLATE REPORTS



hand would amount to a fraud on the party who has fully per-
formed it. Hackbarth v. Hackbarth, supra. Because the agree-
ment before us was not reduced to writing, it is subject to the
statute of frauds and therefore unenforceable, unless it falls
within the exception for part performance.
   [6] 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. American Central City v. Joint Antelope Valley
Auth., 281 Neb. 742, 807 N.W.2d 170 (2011).
Existence and Terms of Oral Contract.
   [7] 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. Theobald v. Agee, 202 Neb. 524, 276 N.W.2d
191 (1979).
   [8] Upon our review of the evidence, Ficke has met his
burden of proving the existence of an oral agreement and its
terms by clear, satisfactory, and unequivocal evidence. Ficke
testified that Wolken agreed to give him a certain 80 acres
of land after he had worked for him for 10 years. Although
their initial agreement did not specify when the 10-year period
began, Ficke assumed that it began when he started working
for Wolken in January 2000, which was confirmed by Wolken’s
subsequent conduct. See Hoeft v. Five Points Bank, 248 Neb.
772, 780, 539 N.W.2d 637, 644 (1995) (“‘“mutual understand-
ing . . . sufficient to establish [the terms of] a contract . . . may
be implied from conduct [of the parties] and the surrounding
circumstances”’”).
   Wolken and Ficke spoke about the agreement many times
over the years, and Wolken would often remind Ficke in
January regarding the number of years remaining until he
        Decisions   of the  Nebraska Court of Appeals
	                        FICKE v. WOLKEN	593
	                      Cite as 22 Neb. App. 587

would get the land. Ficke testified that on January 10, 2010,
Wolken told him he had completed his 10 years and the 80
acres was his. Ficke testified that although Wolken did not
deliver the deed to the land to Ficke, Wolken shared the pro-
ceeds of the harvest with him as rent and told him that he
needed to pay taxes on the land. Wolken acknowledged that he
made this agreement with Ficke, but denied that the coopera-
tive check was for rent. Two uninterested witnesses, however,
testified that Wolken told them in 2010 that he had given the
land to Ficke for working for him for 10 years. Thus, we con-
clude that Ficke met his burden of establishing both the exis-
tence of the oral contract and its terms by clear, satisfactory,
and unequivocal evidence.
“Solely Referable” to Oral Contract.
   [9,10] Even when the existence and terms of an oral
contract have been established by clear, satisfactory, and
unequivocal evidence, the contract is nonetheless unenforce-
able unless it is also proved by clear, satisfactory, and
unequivocal evidence that there has been such performance
as the law requires. See Theobald v. Agee, supra. 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.
Id. The performance must be something that the claimant
would not have done “unless and on account of the contract
and with the direct view to its performance so that nonper­
formance by the other party would amount to fraud upon
him.” Id. at 531, 276 N.W.2d at 195.
   Wolken relies primarily on two Nebraska Supreme Court
cases to support his argument that Ficke did not prove that his
continued employment was referable solely to the oral prom-
ise. See In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817
(1982), and Theobald v. Agee, supra.
   In In re Estate of Layton, an employee of the decedent’s
hardware store filed a claim against the decedent’s estate,
alleging that during the last 10 years of the decedent’s life,
he had promised the employee on numerous occasions that
he would execute a will leaving the hardware store to the
   Decisions of the Nebraska Court of Appeals
594	22 NEBRASKA APPELLATE REPORTS



employee in return for the employee’s “long and faithful serv­
ice” at that store. 212 Neb. at 519, 323 N.W.2d at 818. The
evidence at trial showed that the employee had worked at the
hardware store for 50 years and that in response to the employ-
ee’s having been offered two other job opportunities which he
declined, the decedent promised the employee that the store
and inventory would be his when the decedent reached the age
of 65. The employee testified that he remained working at the
store 6 days a week for 10 hours per day, at what he felt were
low wages, because of the decedent’s promise. However, the
evidence showed that the promise was altered several times
prior to the decedent’s death.
   A jury returned a verdict in favor of the employee. The
Nebraska Supreme Court reversed the jury’s verdict, basing
the reversal in part on its finding that the employee failed to
show that his continued service was referable solely to the
alleged oral promise. The court relied heavily on the employ-
ee’s admission that he did nothing more after the promise
was made than he had been doing prior to the promise. It fur-
ther reasoned:
      We must note that the [employee] continued to be com-
      pensated for his services following the making of the
      purported agreement and received annual raises in that
      compensation. There is not evidence in the record, other
      than the [employee’s] bare assertions, to indicate that
      the [employee] was being undercompensated for the
      work he was doing. Consequently, the [employee] has
      by his own admission made it impossible to distinguish
      between his performance rendered under his employ-
      ment contract and his performance rendered under the
      alleged agreement at issue herein. We are unable to draw
      such a distinction and therefore must conclude that the
      [employee] has failed to prove that his performance fol-
      lowing the making of the alleged agreement was “‘not
      such as might have been referable to some other or dif-
      ferent contract.’”
In re Estate of Layton, 212 Neb. at 530, 323 N.W.2d at 823.
   In Theobald v. Agee, 202 Neb. 524, 276 N.W.2d 191 (1979),
the owner of a farm equipment company allegedly promised
        Decisions   of the  Nebraska Court of Appeals
	                        FICKE v. WOLKEN	595
	                      Cite as 22 Neb. App. 587

two of his employees that he would leave them an interest
in a farm he owned if they would remain in his employ. The
plaintiff continued working for the company until it was sold
approximately 6 years later. The owner subsequently died
and left nothing to the two employees in his will. The plain-
tiff sought specific enforcement of the oral promise based on
his continued employment and the fact that his wages had
decreased after the contract was made.
    The Nebraska Supreme Court affirmed the trial court’s rul-
ing that the plaintiff failed to show that his continued employ-
ment was solely referable to the promise of land. It noted,
contrary to the plaintiff’s argument, that the plaintiff’s total
income actually increased after the contract was made due to
the payment of bonuses. Further, the court found no evidence
indicating that the plaintiff’s performance was any different
after the alleged agreement than it was prior thereto and no
evidence that the plaintiff had ever threatened to resign either
prior to or at the time of the alleged agreement. Therefore,
the court found that the plaintiff’s continued employment was
equally referable to his employment contract with the company
and that the alleged agreement therefore did not fall within an
exception to the statute of frauds.
    What we glean from these two cases is that it is incumbent
upon the plaintiff to prove the sole reason he continued in his
employment was to attain what was promised and that it is
insufficient if the evidence fails to prove the promise was the
enticement for the continued employment. Like the employ-
ees in In re Estate of Layton, 212 Neb. 518, 323 N.W.2d 817
(1982), and Theobald v. Agee, supra, Ficke was employed
in a manner substantially the same both before and after the
oral promise was made, he continued to receive compensa-
tion for his work with annual raises and bonuses, and he
never rejected other job opportunities because of the promise.
However, unlike the testimony of the employees in those two
cases, Ficke’s testimony supports a conclusion that the sole
reason he continued his employment was to attain the land
that was promised. During trial, the following testimony was
adduced from Ficke:
   Decisions of the Nebraska Court of Appeals
596	22 NEBRASKA APPELLATE REPORTS



          [Ficke’s counsel:] During this ten-year, nine-month
      span of time that you worked for . . . Wolken, did you
      ever think about quitting?
          [Ficke:] Oh, yes.
          Q. Why?
          A. Well, I worked constantly. I had no family life,
      insurance. I had no health insurance for, I don’t know,
      five, six years. I just, you know, I always thought, you
      know, that I could do better, but then in the back of me
      [sic] mind, yeah, 80 acres after ten years isn’t a bad
      deal either.
          Q. Did you ever decide to stay working for . . . Wolken
      because of his promise?
          [Wolken’s counsel]: We will object on the ground that
      it’s leading and suggestive, Your Honor.
          THE COURT: Sustained.
          [Ficke’s counsel:] Well, you testified that you thought
      about quitting before. Why did you stay with him?
          [Ficke:] 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.
   Although the court prevented Ficke from testifying to the
ultimate question of whether he continued working for Wolken
because of the promise, Ficke’s testimony proves that obtain-
ing the 80 acres was the reason he did not quit. We further
note that although our review is de novo, we are not precluded
from giving weight to the fact that the trial court saw the wit-
nesses and observed their demeanor while testifying. In re
Estate of Layton, supra. The trial judge indicated in his order
that he found Ficke to be “completely credible,” and this fur-
ther supports our conclusion that the trial court did not err in
finding that Ficke’s continued employment was solely refer-
able to the promise of receiving the 80 acres.

Public Policy.
   Wolken argues that the alleged oral argument was unen-
forceable as against public policy because the value of the land
was $640,000. He claims it would be unconscionable for Ficke
to receive this much, since his only “‘consideration’” was his
        Decisions   of the  Nebraska Court of Appeals
	                        FICKE v. WOLKEN	597
	                      Cite as 22 Neb. App. 587

continued employment, for which he was compensated by sal-
ary and bonus. Brief for appellant at 19. We disagree.
   [11-14] The unconscionability of a contract provision pre­
sents a question of law. Myers v. Nebraska Invest. Council, 272
Neb. 669, 724 N.W.2d 776 (2006). When considering whether
an agreement is unconscionable, the term “unconscionable”
means manifestly unfair or inequitable. Id. A contract can be
either procedurally or substantively unconscionable. Adams v.
American Cyanamid Co., 1 Neb. App. 337, 498 N.W.2d 577
(1992). “‘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.’” Id. at
356, 498 N.W.2d at 590, quoting Schroeder v. Fageol Motors,
86 Wash. 2d 256, 544 P.2d 20 (1975).
   [15] Based upon Wolken’s argument that the agreement
provides a “windfall” to Ficke, brief for appellant at 19, we
construe his position as that of substantive unconscionabil-
ity. A contract is not substantively unconscionable unless the
terms are grossly unfair under the circumstances that existed
when the parties entered into the contract. Adams v. American
Cyanamid Co., supra.
   According to the evidence, the spring of 2003 is when
Wolken made the promise to convey the land. To determine
if a contract is substantively unconscionable, we view the
contract at the time it was made. There is no evidence as
to the value of the land promised as of the spring of 2003,
and the present value of the land, to which the parties stipu-
lated, does not provide any insight into its value in 2003.
Moreover, the evidence reveals that the promise was for 80
acres; Wolken owns 700 acres and rents another 200. He also
owns 875 head of cattle and has a substantial farming opera-
tion. The relationship between Wolken and Ficke was not
only that of employer and employee, but also that of “[v]ery
good friends.” Ficke testified that his family and Wolken
would go together to concerts and family activities and dine
and fish together. Therefore, while the promise of 80 acres
may appear generous, given the facts and circumstances of
this case, it does not rise to the level of unconscionable. The
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598	22 NEBRASKA APPELLATE REPORTS



trial court did not err in refusing to invalidate the agreement
as unconscionable.

                         CONCLUSION
   Upon our de novo review of the record, we find that Ficke
met his burden of proving both the existence of the oral con-
tract and its terms by clear, satisfactory, and unequivocal evi-
dence. We also conclude that he sufficiently proved that his
performance was solely referable to the oral contract. We deter-
mine that the contract was not unconscionable, and we affirm
the district court’s order.
                                                     Affirmed.



                     State of Nebraska, appellee, v.
                      Aaron P. Brooks, appellant.
                                   ___ N.W.2d ___

                      Filed December 9, 2014.     No. A-14-246.

 1.	 Sentences: Prior Convictions: Appeal and Error. A sentencing court’s deter-
     mination concerning the constitutional validity of a prior plea-based conviction,
     used for enhancement of a penalty for a subsequent conviction, will be upheld on
     appeal unless the sentencing court’s determination is clearly erroneous.
 2.	 Sentences: Appeal and Error. Where a sentence imposed within the statutory
     limits is alleged on appeal to be excessive, the appellate court must determine
     whether the sentencing court abused its discretion in considering and applying
     the relevant factors as well as any applicable legal principles in determining the
     sentence to be imposed.
 3.	 Sentences: Probation and Parole. It is within the discretion of the trial court
     whether to impose probation or incarceration.
 4.	 Prior Convictions: Proof. In a proceeding to enhance a punishment because of
     prior convictions, the State has the burden of proving such prior convictions by a
     preponderance of the evidence.
 5.	 Sentences: Prior Convictions: Evidence: Proof. On an appeal of a sentence
     enhancement hearing, an appellate court views and construes the evidence most
     favorably to the State.
 6.	 Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
     nary meaning, and an appellate court will not resort to interpretation to ascertain
     the meaning of statutory words which are plain, direct, and unambiguous.
 7.	 Statutes. It is not within the province of a court to read a meaning into a statute
     that is not warranted by the legislative language.