Opinion
No. A-07-1027.
Filed June 24, 2008.
SIEVERS and CASSEL, Judges.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. OF PRAC. 2E.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
This case involves claims for partition and accounting with respect to a tract of land allegedly owned by the parties but which was not dealt with in their 1996 divorce action and property division. The trial court's decision is incorrect in a number of respects, and thus we reverse, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On September 6, 1975, Kathryn J. Uhler and Terry L. Jessen were married. On September 18, 1996, their marriage was dissolved. The decree divided substantial assets including numerous tracts of land, but according to Uhler's petition in this case, the decree failed to account for and divide a piece of real property located in Morrill County, Nebraska. Uhler's petition described the land at issue as the "Northwest Quarter . . . (NW 1/4) of Section 23, Township 18 North, Range 51 West of the 6th P.M." (the Property). This petition was filed on December 14, 2000, in the district court for Morrill County, and it asserted that the Property was acquired during the marriage and was jointly owned. Uhler requested that the Property be partitioned and equitably divided or else sold. She also requested an accounting from the date of the divorce decree to determine any income received from the Property by Jessen, and she requested that she receive one-half of any such proceeds. Jessen filed an answer denying Uhler's core allegations and alleging that Uhler's petition failed to state a claim upon which relief could be granted, that her claim was outside the statute of limitations, and that the district court lacked subject matter jurisdiction.
Uhler and Jessen both filed motions for summary judgment. Uhler's evidence in support of her motion consisted of four exhibits. For our purposes, the most important of these is exhibit 2, the affidavit of Lee Harder, a certified and bonded abstractor to which Harder's "Report of Title" was attached. The Report of Title concerns the "the record title" to a piece of property which Harder described as follows:
The Northwest Quarter (NW 1/4) of Section 23, Township 18 North, Range 51 West of the 6th P.M. in Morrill County, Nebraska, EXCEPT a part of the NW1/4 of said Section 23 described as follows: Beginning at a point 1,420 feet due North of the Southwest corner of said NW 1/4, thence running 1,420 feet south along the west line of said NW 1/4, thence running 1,900 feet due east along the south line of said NW1/4, thence northwesterly approximately 2,580 feet to the point of beginning.
Clearly, while Harder's report is describing a tract of ground in section 23, it is a smaller and different tract than the quarter section that Uhler described in her petition. Ignoring the discrepancy in the legal description for the moment, the Report of Title, immediately following the legal description has a place to set forth that the record title "is in the name of but only the word "Undermined" appears. It seems a reasonable supposition that the abstractor meant to insert "Undetermined" because he then makes extensive reference to the contents of a deed of May 11, 1994-a document which Jessen introduced in evidence in opposition to Uhler's motion for summary judgment and in support of his own.
The deed referenced by the abstractor, as well as being attached to Jessen's affidavit, was executed May 11, 1994, by Uhler and Jessen, then husband and wife, and recorded on May 19. The grantors were Uhler and Jessen with Jessen being the sole grantee. The deed purported to convey four different tracts, one of which was the following ground in Morrill County described as follows:
The Northwest Quarter (NW 1/4) of Section Twenty Three (23), Township Eighteen (18) North, Range Fifty-one (51) all West of the 6th P.M. [in Morrill County, Nebraska], EXCEPTING 34.7 acres more or less as deeded in book 57, page 437. (note: this warrenty [sic] de [balance of word cut off of page] transfers the mineral rights reserved in the book 57, Page [numbers cut off] deed, so that all minerals will be owned by Terry L. Jesse [balance of word cut off.]
Harder's Report of Title has a section entitled "Abstractor's Note" that discusses the May 11, 1994, deed, quotes portions of it, and references a lawsuit filed in Morrill County District Court by Uhler against Jessen to cancel what she claims was the allegedly fraudulent deed of May 11, 1994. Harder notes that such suit was dismissed with prejudice on March 11, 1996. Harder's abstractor's note then says:
NOTE: The above is shown for information purposes. It appears that the above referenced deed [of May 11, 1994,] only conveys mineral rights, but it might take legal action to determine what the intention was and who actually holds the fee title to the subject property. (See copy of deeds attached)[.]
Significantly, the Report of Title placed in evidence by Uhler does not have the "deeds attached." Uhler's other evidence on her motion for summary judgment included her affidavit in which she used the legal description of "The Northwest Quarter NW 1/4 of Section 23, Township 18 North, Range 51 all West of the 6th P.M." — again a different and bigger tract than Harder discusses in the Report of Title. And Uhler's affidavit says that "the property is legally titled in [Uhler's name]." Uhler also introduced a copy of the decree of dissolution between the parties. Finally, Uhler introduced requests for admission in which Jessen was asked to admit that he was a "joint owner of agricultural real estate legally described as: The Northwest Quarter of (NW 1/4) of Section 23, Township 18 North, Range 51 West of the 6th P.M. in Morrill County." Jessen failed to answer, and thus he was deemed to have admitted the request. Jessen's attempts to set aside his admission for failure to answer were rejected by the trial court.
DECISION ON MOTIONS FOR SUMMARY JUDGMENT
We now turn to the trial court's ruling on the motions for summary judgment — both of which simply asked for judgment in the movant's favor. Without setting forth the basis for doing so, the trial court sustained Uhler's motion for summary judgment. The order also said that a trial would later be held "as to an accounting regarding proceeds for Defendant's sole use of the property."
Three years after the ruling on the summary judgment motions, a trial was held. Evidence was adduced that the Property had been rented out at $42.50 per acre since the date of the divorce decree, although Jessen testified that he did not receive income from the Property in 1996 through 1998, 2005, or 2006. The trial court made a finding that Uhler was entitled to $25,885.25 for Jessen's use of Uhler's half of the Property and awarded the Property to Uhler, which was determined to be worth $26,000 based on the appraisal of Don Helberg, a licensed real estate broker. The district court also awarded Uhler $13,843.87 plus 7.014 percent interest "to compensate [her] for the amount of income from the property," but it did not specify from what date interest was to accrue. Jessen filed a motion for new trial that was denied, although in such order the court clarified its judgment by specifying that the judgment was $13,060.25 plus interest of $783.62 for a total of $13,843.87. The court's ruling on the motion for new trial is silent about interest. Jessen timely appealed.
ASSIGNMENTS OF ERROR
Jessen assigns that the district court erred in (1) sustaining Uhler's motion for summary judgment, (2) overruling Jessen's motion for summary judgment, (3) finding that Uhler's petition stated a claim upon which relief could be granted, (4) finding that the statute of limitations had not run, (5) finding that the district court had subject matter jurisdiction, (6) awarding Uhler sole title to the Property, (7) awarding Uhler $13,843.87 as her share of the income from the Property, and (8) finding the reasonable rental value of the Property was $25,885.25 of which Uhler was entitled to half.
STANDARD OF REVIEW
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. NEBCO, Inc. v. Adams, 270 Neb. 484, 704 N.W.2d 777 (2005). When adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct such further proceedings as the court deems just. Channer v. Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005); In re Estate of Bauer, 270 Neb. 91, 700 N.W.2d 572 (2005).
A partition action is an action in equity and is reviewable by an appellate court de novo on the record. Gustafson v. Gustafson, 239 Neb. 448, 476 N.W.2d 819 (1991). On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court. Detter v. Miracle Hills Animal Hosp., 269 Neb. 164, 691 N.W.2d 107 (2005).
ANALYSIS
Our discussion of the factual and procedural background should make it clear that the grant of partial summary judgment to Uhler must be reversed. Uhler's action seeks partition and accounting with respect to a quarter section, 160 acres, but her own Report of Title deals with a smaller and, therefore, different tract of land. And that tract appears, although we do not decide the question, to be the 125 acres that Jessen references in his affidavit that has the deed of May 11, 1994, from Uhler and Jessen to Jessen attached thereto. Thus, at the most fundamental level, there is obviously a genuine issue of material fact about what tract of land is involved in the lawsuit. In short, Uhler's pleadings and her Report of Title are inconsistent about what land is involved in the lawsuit, plus Uhler's affidavit and Jessen's are in conflict about the land involved. As a result, summary judgment was not appropriate.
Second, because the trial court granted Uhler's motion for summary judgment, the trial court necessarily made the implicit finding that she and Jessen were joint owners, although the trial court did not directly say so. Uhler rests much of her case for ownership on the fact that Jessen admitted via his failure to respond that he was a joint owner of the quarter section. However, such cannot support a summary judgment determination of joint ownership because the request for admission of joint ownership went to a different piece of ground than discussed by Uhler's Report of Title, and apparently different than that conveyed by the deed of May 11, 1994. In the latter instance, we say "apparently different" because when the May 11 deed is closely examined, it is clear from the legal description that one cannot understand or know what was really being conveyed without having in hand the deed that "EXCEPT[S] 34.7 acres more of less as deeded in book 57, page 437." Neither party put this deed in evidence. Given the unorthodox legal description in the May 11 deed of the Morrill County land being conveyed, the deed recorded at book 57 page 437 is crucial, but it was not placed in evidence. Its absence is fatal to the district court's grant of summary judgment. Finally, Uhler introduced into evidence a licensed abstractor's Report of Title that shows that the record title is in the name of "Undermined." This report further opines that legal action may be necessary to determine "who actually holds title to the property" (which is property different than that alleged in Uhler's petition and different than that described in the trial court's orders). Thus, there are many reasons that summary judgment in Uhler's favor was wrong. There were genuine issues of material fact as to who owned what — and this conclusion disposes of Jessen's claim that he was entitled to summary judgment. Thus, we reverse the district court's judgment and remand the cause for further proceedings.
ADDITIONAL ISSUES
Normally, we would end our opinion here. However, an appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings. Gestring v. Mary Lanning Memorial Hosp., 259 Neb. 905, 613 N.W.2d 440 (2000). In this case, even if one were to assume that the grant of partial summary judgment with respect to ownership was proper, the balance of the decision of the district court is incorrect to that point that plain error is present and that further discussion is needed. Plain error exists where there is error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. Priest v. Priest, 251 Neb. 76, 554 N.W.2d 792 (1996).
First, the district court granted an improper remedy with respect to Uhler's request for partition or sale of the Property. The district court found that the reasonable rental value of the Property from 1996 through 2005 was $42.50 per acre and made a factual finding that Uhler was entitled to $25,885.25 in back rents and interest. This amount was taken directly from Uhler's exhibit 9, and that figure included 12-percent compound interest. At oral argument, Uhler's counsel could not offer any authority for the award of 12-percent interest, let alone an award of compound interest, and we know of none. Additionally, the well-known standards for an award of prejudgment interest were not met on this record. See Classen v. Becton, Dickinson Co., 214 Neb. 543, 334 N.W.2d 644 (1983) (where reasonable controversy exists as to plaintiff's right to recover or as to amount of such recovery, claim is generally considered to be unliquidated and prejudgment interest is not allowed).
The trial court also made a factual finding that the Property was worth $26,000. In its judgment, the district court awarded the Property solely to Uhler. We surmise the point of giving the property to Uhler was as an "offset" or payment of the $25,885.25 that the trial court found she was due for rents and compound interest. In addition to the award of all of the Property, the court gave Uhler a judgment against Jessen for $13,060.25 plus interest of $783.62. While the district court's decree is very abbreviated and lacks factual findings which might assist in appellate review, we can only surmise that the judgment for $13,060.25 is intended to represent roughly half of the property's value that the trial court found to be $26,000 and that the award of the property itself was intended to compensate her for past rents and interest. But, the award of the property to Uhler is simply wrong, and the entry of the monetary judgment for half of the property's value is at odds with the applicable Nebraska statutes.
Under Nebraska's partition statutes, the partition of the subject property may take one of two forms: (1) partition in kind, where the property is physically divided, or (2) partition by sale, where the property is sold and the sale proceeds are divided. Channer v. Cumming, 270 Neb. 231, 699 N.W.2d 831 (2005). As between a partition in kind or sale of land for division, the courts will favor a partition in kind, since this does not disturb the existing form of inheritance or compel a person to sell his property against his will, which, it has been said, should not be done except in cases of necessity. Id.
That the trial court committed plain error in its award of the entire quarter section to Uhler, putting aside how much land was really involved in the action, is clear from examination of the statutes governing partition, Neb. Rev. Stat. § 25-2170 et seq. (Reissue 1994 Cum. Supp. 2004). Rather than following the statutes relating to partition, the trial court "blended" Uhler's claim for accounting and for partition and reached a cumulative decision which attempted to resolve the entire matter, but did so in disregard of the statutes governing partition. No referee was appointed, see § 25-2180, to determine whether partition in kind could be made "without great prejudice to the owners," see § 25-2181. Instead, the trial court awarded Uhler all of the land, apparently as payment for what the court found she was due for past rents. We note that in an action for partition that includes an accounting, it is proper that a lien arising from the accounting judgment attach to the other owner's land, see Tesar v. Leu, 156 Neb. 528, 56 N.W.2d 803 (1953). But, there is no basis in the law or the cases to simply award the land to one owner as payment for the accounting claim — and doing so ignores the statutory requirement for appointment of a referee to determine whether there can be partition in kind or whether a sale is required. Finally, recognizing that precision in land titles is very important, in a case of this complexity, that is contested both as to the land involved and whether the parties are owners or not, the district court must make specific findings as to the interests of each party in the land at issue; of course the land affected must be described with particularity in accordance with any factual determinations which are necessary to properly resolve the case. Therefore, for multiple reasons, we reverse the district court's judgment and remand the cause to the district court for further proceedings consistent with our opinion.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
CARLSON, Judge, participating on briefs.