Fisher v. Suko, supra, 111 N.W.2d at 366, citing to Burkstrand v. Rasmussen, 77 N.D. 716, 45 N.W.2d 485 (1950). As we said in Vasichek v. Thorsen, 271 N.W.2d 555 (N.D. 1978), "[t]he failure of counsel to request an instruction waives any error by the trial judge in failing to give the appropriate or complete instruction. It is not reversible error for the trial court to fail to give an instruction provided that the instructions, as a whole, fully and fairly present the law on a particular issue." 271 N.W.2d at 561.

" 204 N.W.2d at 195. In Vasichek v. Thorsen, 271 N.W.2d 555, 560-61 (N.D. 1978), we held that the part performance in the form of improvements to property was sufficient to take the oral contract for the sale of land out of the statute of frauds. We said:

Even assuming that contracts such as the stock transfer agreement normally must be in writing under the statute of frauds, see N.D.Cent. Code § 9-06-04(1), (2) (1975); but see Nelson v. TMH, Inc., 292 N.W.2d 580, 585 (N.D. 1980) (where promisor receives direct personal benefit, promise is original and thus outside the statute of frauds), the agreement has been partially performed, with Ehrichs' transfer of stock and Kearney's settling of some of the corporate debts, and thus is not invalid for want of a written memorial. See Cooke v. Blood Systems, Inc., 320 N.W.2d 124, 129 (N.D. 1982); Vasichek v. Thorsen, 271 N.W.2d 555, 560-561 (N.D. 1978). Furthermore, Kearney's promise to settle the debts of the corporation, in addition to releasing Ehrichs from his obligations under the prior forty-nine/fifty-one contract, was more than sufficient consideration to support the stock transfer agreement. Finally, the district court's dismissal of Ehrichs' fraud claim and the facts in the record belie Ehrichs' claim on appeal that the agreement has been, or should be, rescinded.

When improvements to the property are relied upon as part performance of an oral contract for purposes of removing it from the statute of frauds, the improvements made on the land must be valuable, substantial, and permanent. Vasichek v. Thorsen, 271 N.W.2d 555 (N.D. 1978). Thus, part payment of the purchase price and substantial improvements to the property may remove an oral contract from the statute of frauds and create an enforceable contract constituting an enforceable equitable property interest.

Burns v. Burns, 2007 ND 134, ¶ 7, 737 N.W.2d 243. Steven Johnson must show that, through surprise caused by the amendment, he was unable to prepare a defense to the new claim or that he was otherwise prejudiced by the implicit grant of permission to amend. See Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d 439, 442–43 (N.D.1991); Vasichek v. Thorsen, 271 N.W.2d 555, 562 (N.D.1978); Dardis v. Eddy Bros., 223 N.W.2d 674, 680 (N.D.1974). Steven Johnson has not made the requisite showing.

Prejudgment interest in tort cases is governed by N.D.C.C. § 32-03-05, which gives the fact finder discretion to award interest. See, e.g., Swain v. Harvest States Cooperatives, 469 N.W.2d 571, 574 (N.D. 1991); Patch v. Sebelius, 349 N.W.2d 637, 643 (N.D. 1984); Vasichek v. Thorsen, 271 N.W.2d 555, 562 (N.D. 1978). The parties in this case have never cited N.D.C.C. § 32-03-05, either in the trial court or on appeal. Kurtz has never argued that future damages or non-economic damages provide an inappropriate basis for prejudgment interest under the statute.

(footnote omitted)). [¶ 19] Although cases in this jurisdiction usually rely on the taking of possession and the making of valuable, substantial and permanent improvements to sustain part performance to take an oral agreement out of the statute of frauds, see, e.g., Vasichek v. Thorsen, 271 N.W.2d 555, 560 (N.D. 1978), we discern no ironclad rule of prerequisites in the cases that conflicts with the broad, flexible approach described in Powell. Indeed, our cases may evidence an approach more flexible than Powell.

Certainly, substantial injustice can occur when a donee makes valuable and permanent improvements to non-homestead property. Compare Vasichek v. Thorsen, 271 N.W.2d 555 (N.D. 1978) (where vendee constructed permanent grain bins on non-homestead property, summer-fallowed the land, and improved drainage ditches, evidence was sufficient to show partial performance of an oral contract to remove the transaction from the statute of frauds). The improvements found by the trial court to have been made by John Jr. in this case were valuable, substantial and permanent, and were made in reliance on the gift.

See Parceluk v. Knudtson, 139 N.W.2d 864 (N.D. 1966). When improvements to the property are relied upon as part performance of an oral contract for purposes of removing it from the statute of frauds, the improvements made on the land must be valuable, substantial, and permanent. Vasichek v. Thorsen, 271 N.W.2d 555 (N.D. 1978). Thus, part payment of the purchase price and substantial improvements to the property may remove an oral contract from the statute of frauds and create an enforceable contract constituting an enforceable equitable property interest.

That rule fosters public policy by preventing fraudulent conduct and requiring full disclosure to a principal. Jensen, supra; Anderson, supra. Whether or not a broker breaches a fiduciary duty to a principal is a question of fact. Sigurdson, supra; Vasichek v. Thorsen, 271 N.W.2d 555 (N.D. 1978). Our review of questions of fact is governed by the "clearly erroneous" standard of Rule 52(a), N.D.R.Civ.P. A finding of fact is clearly erroneous when, although there is some evidence to support it, a reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Miller Enterprises v. Dog N' Cat Pet Centers, 447 N.W.2d 639 (N.D. 1989).