Clarence E. Mock III, Special Administrator of the Estate of Carl Landgraf, deceased. appellant and cross-appellee,
Gail L. Neumeister and Marlene Neumeister, appellees and cross-appellants.
Property: Undue Influence: Equity: Appeal and
Error. An action to set aside inter vivos transfers
of property on the basis that they were made as the result of
undue influence is one in equity and, as such, is reviewed by
an appellate court de novo on the record.
Judgments: Evidence: Appeal and Error.
Despite de novo review, when credible evidence is in conflict
on material issues of fact, the appellate court will consider
and may give weight to the fact that the trial court observed
the witnesses and accepted one version of the facts over
Costs: Appeal and Error. The decision of a
trial court regarding taxing of costs is reviewed for an
abuse of discretion.
Undue Influence: Property: Proof. The
elements which must be proved in order to vitiate a transfer
of property on the ground of undue influence are that (1) the
transferor was subject to undue influence, (2) there was an
opportunity to exercise such influence, (3) there was a
disposition to exercise such influence, and (4) the transfer
was clearly made as the result of such influence.
Undue Influence: Deeds: Words and Phrases.
The undue influence which will void a deed is an unlawful or
fraudulent influence which controls the will of the grantor.
Deeds: Conveyances: Undue Influence. A
court, in examining the matter of whether a deed was procured
by undue influence, is not concerned with the Tightness of
the conveyance but only with whether it was the voluntary act
of the grantor.
Neb. 377] 7. Deeds: Undue Influence:
Proof. The burden is on the party alleging the
execution of a deed was the result of undue influence to
prove such undue influence by clear and convincing evidence.
Evidence: Words and Phrases. Clear and
convincing evidence is evidence which produces in the trier
of fact a firm belief or conviction about the existence of
the fact to be proved.
Undue Influence. Mere suspicion, surmise, or
conjecture does not warrant a finding of undue influence;
instead, there must be a solid foundation of established
facts on which to rest the inference of its existence.
Appeal and Error. To be considered by an
appellate court, an error must be both specifically assigned
and specifically argued in the brief of the party asserting
Undue Influence: Proof. Undue influence is
usually difficult to prove by direct evidence, and it rests
largely on inferences drawn from facts and circumstances
surrounding the testator's life, character, and mental
__:__. It is not necessary for a court in evaluating the
evidence of undue influence to separate each fact supported
by the evidence and pigeonhole it under one or more of the
four essential elements. The trier of fact should view the
entire evidence and decide whether the evidence as a whole
proves each element of undue influence.
Equity: Costs. The taxation of costs in
equitable actions is governed by Neb. Rev. Stat. §
25-1711 (Reissue 2016).
Costs: Statutes. Unlike Neb. Rev. Stat.
§§ 25-1708 and 25-1710 (Reissue 2016), which
provide that costs shall be allowed of course to the
successful party, Neb. Rev. Stat. § 25-1711 (Reissue
2016) gives the court discretion to tax costs and to
apportion such costs between the parties.
from the District Court for Otoe County: David K. Arterburn,
M. Locher and Joseph J. Kehm, of Locher, Pavelka, Dostal,
Braddy & Hammes, L.L.C., and William R. Reinsch, of
Reinsch, Slattery, Bear & Minahan, PC, L.L.O.. for
Jeanette Stull and Justin J. Knight, of Perry, Guthery, Haase
& Gessford, PC, L.L.O., for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, and Stacy, JJ.
Neb. 378] CASSEL, J.
an appeal from a decree refusing to set aside lifetime
transfers of real estate claimed to be the result of undue
influence. The ultimate issue before the district court and
now before this court is whether the appellant proved by
clear and convincing evidence that the deeds were the result
of undue influence. Upon our de novo review, we conclude that
the appellant failed to meet his burden of persuasion. And
because we find no abuse of discretion by the district court
in declining to tax costs of depositions, we affirm the
district court's decree.
a fact-intensive case. The district court heard testimony
from 33 live witnesses and received over 200 exhibits during
an 8-day trial. After briefly summarizing the contested
transactions and the proceeding challenging them, we will set
forth the evidence from the trial at considerable length.
11, 2011, a couple of weeks prior to Carl Landgraf's 87th
birthday, he executed two joint tenancy warranty deeds
conveying approximately 1, 000 acres of his farmland to Gail
L. Neumeister and Marlene Neumeister. In July 2012, Landgraf
executed deeds to fix an error in the earlier deeds. The
total recited consideration for the four deeds was $4.
Proceeding Attacking Transactions
Landgraf's death, the probate court appointed Clarence E.
Mock III as special administrator of Landgraf's estate.
Mock sued the Neumeisters, alleging that the deeds were the
product of undue influence by the Neumeisters and should be
Neumeisters denied that the deeds were the product of undue
influence. But in the event that the district court set [296
Neb. 379] aside the transfers, they filed a counterclaim
requesting to be compensated for improvements made upon the
land following the transfer.
Facts Developed at Trial
was born in 1924, the youngest of three sons. Neither
Landgraf nor his brothers married or had children. Landgraf
and his brother, Jerome Landgraf (Jerome), were preceded in
death by their parents and brother. They lived nearly their
entire lives on the property originally owned by their
parents. Between the two brothers, Jerome was the
spokesperson and decisionmaker. Their house lacked modern
amenities. It had limited electricity. It lacked plumbing and
a working furnace or stove. Because there was no bathroom,
Landgraf often used a bucket for a toilet.
Catholic faith was important to Landgraf's family.
Landgraf attended Mass. and holy days regularly. Items
signaling faith and devotion decorated Landgraf's house.
According to a relative's testimony, there was a desire
to "pay back" the Catholic church because the
church helped Landgraf's grandparents when they
immigrated to the United States due to religious persecution.
1995, Jerome began living in a nursing home. He died on
August 25, 2000. Landgraf inherited Jerome's interest or
was a joint owner with right of survivorship with Jerome for
Jerome's interest in personal and real property.
owned several tracts of farmland in Otoe County, Nebraska.
His home was located on a farm near Dunbar, Nebraska, which
consisted of approximately 1, 000 acres of land. When
Landgraf's father was in charge, the family farmed most
of the land. After Landgraf's father died, Landgraf and
Jerome "kept putting more and more to grass." They
farmed [296 Neb. 380] some of the land, but primarily used it
for livestock. After Jerome entered the nursing home, this
land was farmed by Gail for approximately 10 years. Landgraf
also owned farms some distance from his home. These farms
were composed of approximately 80 acres and 160 acres and
were farmed by Robert and Jacqueline Knake and Robert Witte,
Relationship With Farmers
1978, Gail began helping his brother perform haying work for
Landgraf and Jerome. When Gail's brother moved in 1983,
Gail took over the haying work. In 1995, after Jerome entered
the nursing home, Gail stopped haying and began farming
Landgraf's land. He had a 60-40 lease arrangement with
Landgraf in which Landgraf received 40 percent of the income
and paid 40 percent of expenses.
2004, Gail told Landgraf that he did not want to farm the
land anymore and Landgraf became very upset. According to
Gail, Landgraf offered to cosign on a $67, 000 note if Gail
continued to farm the land. The lender subsequently sued the
Neumeisters for failure to pay the loan. In May 2006, the day
before Gail's equipment and other collateral were to be
taken by the lender, Gail wrote a check for $75, 000 payable
to himself that Landgraf signed.
attorney, Richard Hoch, tried to work with the Neumeisters to
document some obligation to repay Landgraf, but he was
unsuccessful because the Neumeisters never returned the
instruments that Hoch prepared for their signatures.
According to Gail, the arrangement to repay Landgraf was for
Gail "to keep farming or be around" and to
"work it off." But by the time the loan was paid
off, Gail had ceased farming. Gail stopped farming
Landgraf's land in 2005, because "the input costs
were higher than the output costs." Gail testified that
he worked off the debt by controlling weeds, cleaning a road
ditch, cutting trees, fixing a roof, and various other
Neb. 381] Gail also claimed that he worked off the debt by
performing work for Landgraf under the Environmental Quality
Incentives Program (EQIP). This was a "cost share"
program with the government concerning conservation work.
Landgraf had three 10-year EQIP contracts. Gail was the
"operator" on the contracts and also acted as the
contractor doing the conservation work. He was to perform the
work without being compensated by Landgraf.
status reviews were performed on EQIP contracts to check
progress. Because costs increased every year, there was an
incentive to complete the work under the contracts sooner
rather than later. Gail failed to perform the work in a
timely manner. In 2007, with essentially only 2 years left on
the contracts, only 30 percent of the work had been
completed. If the contracts were not completed as required,
the landowner-i.e., Landgraf-was subject to liquidated
resource conservationist with the Natural Resources
Conservation Service testified that Landgraf had "a hard
time understanding what was going on" and expressed fear
about the potential penalties. The conservationist
communicated with Hoch about drafting a letter on
Landgraf's behalf to request that the contracts be
canceled. The conservationist felt that Landgraf's
"lack of understanding, his state of mind, [and] his
anxiety were circumstances that would warrant" the
waiver of penalties upon cancellation. Hoch testified that
Landgraf was upset that the work under the contracts was not
getting accomplished, and Hoch assisted Landgraf in obtaining
cancellation without penalties. The conservationist later met
with Landgraf and Gail, and he testified that Gail was very
angry about the cancellation of the contracts and that
Landgraf was very nervous and uncomfortable. At trial, Gail
explained that he was "a little hurt because the amount
of work that I put into it, I never got paid for."
was concerned about Gail's not farming the land. Gail
continued to store his equipment on Landgraf's land after
he stopped farming for Landgraf. There was also evidence [296
Neb. 382] that Gail ran a cow/calf operation and kept the
livestock on Landgraf s pasture without compensating
Landgraf. Hoch suggested that Landgraf find another tenant,
but Landgraf was reluctant to terminate Gail's lease.
Gail was unsure whether he continued to have a lease with
Landgraf after he stopped farming the land, but he testified
that he did not pay anything on any such lease from and after
2005. Gail knew that others were interested in farming
Landgraf's land. He testified that he suggested Landgraf
should rent the land to someone else and that he brought
someone to try to rent pasture from Landgraf but Landgraf
refused. The Knakes offered to farm the land, but Landgraf
declined the offer due to uncertainty about Gail's
reaction. Robert testified that Landgraf complained about not
getting enough money off the land to pay the taxes, but that
Landgraf feared Gail would never repay him for the loan if
Landgraf leased the land to someone else. Hoch obtained a
proposal from an individual concerning a 5-year lease, but
Landgraf similarly did not accept it.
2005, Gail had a discussion with Landgraf about a sale and
gift of approximately 10 acres of Landgraf's land. The
land included a residence across the road from Landgraf's
home. After completion of a survey, Landgraf told Hoch that
he did not want to sell all that land. The transaction did
not occur. According to Gail, he declined the gift because it
would cost too much money to rehabilitate the house on the
property. Hoch testified that "major work" needed
to be done to restore the house, but he had the impression
that the transaction did not occur because Landgraf disagreed
with where the stakes were laid out by the survey and did not
want to convey that much property.
is no dispute that the Neumeister family helped Landgraf. If
Landgraf or Jerome needed something, they called the
Neumeisters for help. Marlene testified that she visited
Landgraf two to three times a week after Jerome died. An
individual who farmed across the road from Landgraf observed
Gail help Landgraf but never saw anyone else help [296 Neb.
383] him. Another witness observed Gail helping Landgraf
"[a] lot." Gail considered himself to be Landgraf s
primary caregiver after Jerome died. Marlene testified about
how Gail missed time with his family in order to help
Landgraf. Even after Gail ceased farming Landgraf's land
in 2005, he continued to help Landgraf with whatever Landgraf
needed or wanted and visited Landgraf "probably every
other day or every three days." Gail helped Landgraf
because they were "pretty close friends."
Knakes had long farmed the 80-acre parcel owned by Landgraf.
Robert farmed it for 61 years, and Jacqueline helped farm the
land since 1973. They-like Gail-had a 40-60 crop share
arrangement with Landgraf.
Earlier Estate Planning
Estate Planning Documents
1999, Hoch prepared a will and a charitable trust for
Landgraf. Landgraf's will named Gail as the personal
representative and bequeathed all farm equipment to him. It
gave various sums of money to a number of recipients,
including Gail, and gave the remainder of the estate to the
charitable trust. The charitable trust specified that upon
Landgraf's death, all non-real-estate assets would be
held in trust for 25 years and all net income would be
divided in one-fourth interests and paid on an annual basis
to St. Mary's Catholic Church of Nebraska City, Nebraska;
St. Benedict's Catholic Church of Nebraska City; St.
Paulinus Catholic Church of Syracuse, Nebraska; and Lourdes
Central Catholic School of Nebraska City. The charitable
trust directed that the real estate be held for 50 years
after Landgraf's death and then sold, with the proceeds
divided equally between the same four charitable
drove Landgraf to the law office and watched Landgraf sign
the documents. Gail testified that during the meeting, [296
Neb. 384] Landgraf whispered to him that "this isn't
the way I really want it." Gail told Landgraf that he
could either sign the documents or ask Hoch to change them.
testified that Landgraf spent a lot of time thinking about
his estate planning, and Hoch could not imagine that the
documents did not reflect Landgraf's wishes. According to
Hoch, Landgraf knew what he wanted in terms of estate
planning: He wanted to have a trust, to have his farmland not
sold, and to have the Catholic church as the final recipient.
Hoch also testified that Landgraf "was not a
sophisticated client" and that he needed somebody to
help him with legal and financial matters.
Relationship With Hoch After 1999
continued to represent Landgraf after preparing the 1999
estate planning documents. Hoch assisted with Jerome's
estate by closing the guardianship and conservatorship matter
and opening an intestate estate. As noted, Hoch helped
Landgraf with regard to the loan that Landgraf cosigned and
the EQIP contracts. But Hoch did not recall performing any
legal work for Landgraf after 2007.
witness recalled an event at a bank in 2006 in which Landgraf
approached Hoch and "was venting some of his anger"
and was "evidently and apparently, very . . . troubled
with a previous discussion; perhaps, an argument." Gail
testified that in 2007, Landgraf told him that he had been
"bullied" by Hoch but that Landgraf would not say
what Hoch had done.
described his last memory of seeing Landgraf, which occurred
in 2007. He saw Landgraf crying and shaking on a street in
Nebraska City, and Landgraf said that he needed Hoch's
help. Landgraf told Hoch that "they're trying to
take my land" and that "[t]hey're trying to
make a new will." Landgraf told Hoch that Gail and John
Horan, an attorney, were trying to make Landgraf "change
things and take his land." Hoch felt [296 Neb. 385] that
Landgraf exhibited diminished capacity at that time. He
discouraged Landgraf from continuing a business relationship
with Gail, but Landgraf did not heed Hoch's advice. Hoch
called Horan and relayed what had happened. Horan recalled
that Hoch told him Landgraf was mad at Hoch because Hoch told
Landgraf that Landgraf was "probably going to have to go
in a nursing home."
Meeting With Horan
2007, Gail called Horan and said that he wanted Horan to
speak with Landgraf about estate planning. Horan and two
other attorneys had represented Gail in 2002 or 2003 in
connection with an automobile accident. According to Gail,
Landgraf selected Horan and Gail speculated that it could
have been because Horan provided services for Gail's
father-in-law, with whom Landgraf spoke. According to
Jacqueline, Landgraf said that Gail talked him into going to
see Gail's attorney rather than Hoch and that Landgraf
did not want to do so.
Horan met with Landgraf, he received a call from Hoch
expressing concern that Landgraf may not be doing what
Landgraf wanted to do. When Horan met with Gail and Landgraf
about changing Landgraf's will, Landgraf stated, upon
Horan's inquiry, that he wanted Gail to be present during
the consultation. Landgraf told Horan that he was thinking
about "gifting or selling" 240 acres to the
Neumeisters. Landgraf expressed concern about having to pay
capital gains taxes if he sold the land, and Horan explained
that a gift would not involve any out-of-pocket expense to
Landgraf in taxes. The topic never went beyond dealing with
the 240 acres of land. The meeting concluded by Horan's
telling Landgraf to let Horan know whether Landgraf wanted to