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Ficke v. Wolken

Supreme Court of Nebraska

July 31, 2015

GERALD FICKE, APPELLEE,
v.
GILBERT WOLKEN, APPELLANT

Page 306

[Copyrighted Material Omitted]

Page 307

Petition for further review from the Court of Appeals, INBODY, RIEDMANN, and BISHOP, Judges, on appeal thereto 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.

HEAVICAN, C.J., WRIGHT, CONN OLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. STEPHAN, J., not participating.

OPINION

Page 308

[291 Neb. 483] Cassel, J.

INTRODUCTION

An employee, relying upon the part performance exception to the statute of frauds, alleged that his former employer breached an oral contract to convey real estate. Gerald Ficke claimed that the employer promised him 80 acres of farmland if he continued his employment for a period of 10 years. The Nebraska Court of Appeals affirmed a decree in Ficke's favor, concluding that he had proved part performance.[1] Although we ultimately agree that Ficke proved part performance, we disapprove of the Court of Appeals' reliance upon Ficke's testimony as to his intent. To prove part performance, the alleged acts of performance must establish the exception without the [291 Neb. 484] aid of such testimony. Because there was other sufficient evidence, we affirm.

BACKGROUND

In January 2000, Ficke began working for Gilbert Wolken as a " hired hand." Ficke performed cattle work, maintenance, mechanical work, and general farm work. He worked various hours depending on the season, ranging from 40 to 60 hours per week. And he was always " on-call" and expected to fix any issues that might arise, regardless of what he was doing. When Ficke began his employment, he earned $7.50 per hour. But at the time of his employment's termination, his wages had risen to $14.75 per hour. He was also paid overtime and usually received an annual bonus extending from $500 to $2,000.

According to Ficke, Wolken promised him the 80 acres of farmland sometime in 2002 or 2003. At the time of the promise, Ficke and Wolken were driving in Wolken's pickup. Ficke looked down at his shoes and said, " [T]here's the only ground I'll ever own." Wolken responded that he would make Ficke a deal. Wolken told Ficke, " After working ten years . . . for me, I will give you 80 acres." And Wolken indicated that the 80 acres were the first 80 acres that Wolken had ever purchased.

Although Ficke worked for Wolken for approximately 10 years 9 months, Wolken never signed over the 80 acres to Ficke. And Wolken terminated Ficke's employment in September 2010. In March 2011, Ficke filed a complaint against Wolken alleging that Wolken had breached the oral contract.

A bench trial was conducted before the district court, and Ficke testified as to his relationship with Wolken. Ficke indicated that he and Wolken were " [v]ery good friends" and that he considered Wolken to be a " father figure." Ficke described that he and Wolken would participate in various activities that " friends and family do together," such as eating together on birthdays, attending concerts, and celebrating holidays.

[291 Neb. 485] As to his reaction to Wolken's promise, Ficke testified that he was overwhelmed and that he " didn't really know how to take it." Ficke told Wolken that he did not have to give Ficke the land, but Wolken insisted. And Ficke indicated that Wolken raised the matter many times. Wolken would mention the promise " every so often" and would remind Ficke, usually

Page 309

in January, that Ficke had only " another year or two years," depending on the year.

And Ficke iterated that Wolken's promise was a significant factor for his continued employment.

[Ficke's counsel:] During this ten-year, nine-month span of time that you worked for . . . Wolken, did ...

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