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ARNOLD v. WALZ

Cite as 306 Neb. 179

Joy Arnold, Personal Representative of the 

Estate of Beverly Freiden, deceased, appellee, v. 

Michael J. Walz, an individual, appellant, 

and John Doe et al., appellees.

___ N.W.2d ___

Filed June 19, 2020. No. S-19-619.

1. Jurisdiction. A question of jurisdiction is a question of law.

2. Summary Judgment. Summary judgment is proper when the pleadings and the 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.

3. Summary Judgment: Appeal and Error. An appellate court will affirm 

a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts 

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.

4. Equity: Quiet Title. A quiet title action sounds in equity.

5. Equity: Appeal and Error. 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, provided that where 

credible evidence is in conflict on a material issue of fact, the appellate 

court considers and may give weight to the fact that the trial judge heard 

and observed the witnesses and accepted one version of the facts rather 

than another.

6. Jurisdiction: Time: Notice: Appeal and Error. Under Neb. Rev. Stat. 

§ 25-1912 (Cum. Supp. 2018), to vest an appellate court with jurisdiction, a party must timely file a notice of appeal.

7. Judgments: Time: Notice: Appeal and Error. Under Neb. Rev. Stat. 

§ 25-1912(3) (Cum. Supp. 2018), filing a timely motion for a new trial 

or a timely motion to alter or amend a judgment terminates the time in 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/28/2020 09:09 AM CDT
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which a notice of appeal must be filed; instead, the 30-day period to 

appeal starts anew upon the entry of the order ruling upon the motion 

for a new trial or the motion to alter or amend a judgment.

8. Pleadings: Judgments. In some circumstances, an appellate court may 

treat a postjudgment motion under a different title as a motion to alter 

or amend a judgment, based on the actual relief it seeks, rather than the 

way it was titled by the movant.

9. Pleadings: Judgments: Time. A motion to reconsider may be treated 

as a motion to alter or amend under Neb. Rev. Stat. § 25-1329 (Reissue 

2016) if it was filed no later than 10 days after the entry of judgment, 

and must seek substantive alteration of the judgment.

10. Options to Buy or Sell: Real Estate: Words and Phrases. An option 

to purchase real estate is a unilateral contract by which the owner of 

the property agrees with the holder of the option that he or she has 

the right to buy the property according to the terms and conditions of 

the option.

11. Options to Buy or Sell: Real Estate. Under an option to purchase 

real estate, the owner does not sell the land; nor does the owner at the 

time contract to sell. The owner does, however, agree that the person to 

whom the option is given shall have the right, at his or her election or 

option, to demand the conveyance in the manner specified.

12. Options to Buy or Sell: Real Estate: Time. An option to purchase real 

estate compels performance within the time limit specified or, if none is 

mentioned, then within a reasonable time.

13. Options to Buy or Sell: Real Estate. Options to buy or sell real estate 

should be strictly construed and not extended beyond their express 

provisions.

14. ____: ____. The exercise of an option to buy or sell real estate must be 

absolute, unambiguous, without condition or reservation, and in accord

ance with the offer made.

15. ____: ____. Where a real estate option contract specifies the required 

manner of acceptance, the holder must conform.

Appeal from the District Court for Douglas County: Marlon 

A. Polk, Judge. Affirmed.

James R. Place, of Place Law Office, for appellant.

Edward F. Pohren, of Smith, Slusky, Pohren & Rogers, 

L.L.P., for appellee Joy Arnold.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.
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ARNOLD v. WALZ

Cite as 306 Neb. 179

Miller-Lerman, J.

NATURE OF CASE

Michael J. Walz, the appellant, leased real property from 

Beverly Freiden, and the lease included an option to purchase 

the property at any time before the end date of the lease. During 

Walz’ tenancy, Beverly Freiden died. Joy Arnold (Arnold), an 

appellee, and Jon Freiden were appointed copersonal represent

atives of her estate. Beverly Freiden’s will provided that the 

property would remain in the estate, or if sold, the proceeds 

would be divided variously as indicated later in this opinion. 

After the term of Walz’ initial option ended, Jon Freiden and 

Walz executed several lease modifications which purportedly 

extended Walz’ option to buy the real property. Walz eventually claimed he owned the property. Arnold was reappointed 

personal representative of the estate and petitioned the district 

court for Douglas County seeking a declaratory judgment and 

to quiet title to the property in the estate. Arnold claimed that 

the property had not been distributed and remained in the 

estate, and she alleged that the purported lease modification 

contracts between Jon Freiden and Walz were improper and 

unenforceable. The district court granted Arnold’s motion for 

summary judgment and quieted titled in favor of the estate. 

Walz appealed. We affirm.

STATEMENT OF FACTS

Beverly Freiden died on December 8, 2012. In the subsequent related probate proceedings in the county court for 

Douglas County, Arnold and Jon Freiden were appointed coper

sonal representatives of the estate. Beverly Freiden’s last will 

and testament stated, inter alia, that her real property, an unimproved lot located at the southwest corner of 18th and Jackson 

Streets in Omaha, Nebraska,

may either be sold or retained by my personal represent

atives as they shall determine, and upon sale, whenever 

it occurs, my son, Jon Freiden, shall receive the first 

$25,000 from the sale and the remainder of the net sale 
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proceeds shall be paid over to my grandson, Bart Arnold 

for his care; provided however, if I am not the owner of 

said real estate at the time of my death, then I give, devise 

and bequeath from my estate to my son, Jon Freiden, 

the sum of $25,000.00 and I give, devise and bequeath 

the reminder of the net sale proceeds received when 

the property was sold to my grandson, Bart Arnold for 

his care.

Arnold and Jon Freiden, as copersonal representatives, did not 

sell the property. They filed an informal closing by verified 

statement on December 31, 2013, which stated, consistent with 

Neb. Rev. Stat. § 30-24,117(b) (Reissue 2016), that Arnold 

and Jon Freiden’s appointments as copersonal representatives 

“shall terminate one year after the filing hereof.” The schedule 

of distribution regarding Beverly Freiden’s assets provided that 

“[c]ash and real estate” would be distributed to Jon Freiden. 

The parties agree that this reference to “real estate” was 

undoubtedly describing the real property at issue in this case. It 

is undisputed that there is no evidence of recording (such as a 

deed), and the will did not designate the real estate as an asset 

to be given wholly to Jon Freiden.

The appellant, Walz, had leased the real property from 

Beverly Freiden since at least 2012 and was interested in 

eventually buying the real property. The dispute before this 

court arises from an option-to-purchase provision originally 

included in a February 1, 2012, lease between Beverly Freiden 

and Walz. The lease/purchase agreement was for a period of 

tenancy to terminate on July 31, 2014. The 2012 option to purchase (2012 Option) provided as follows:

6. OPTION TO PURCHASE: The Tenant shall, 

simultaneously with the execution hereof, have an option 

to purchase the leased premises under the following 

terms and conditions:

a. The option price at the end of the lease term to 

be $20,000.00, which option price shall be available to 

the Tenant only if all of the lease payments as set forth 
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herein have been paid. The Tenant may exercise his 

option at any time before July 31, 2014, however, the 

option price shall then be $20,000.00, and in addition, an 

amount equal to the number of unpaid rental installments 

(as set forth above) multiplied by $250.00.

b. Tenant must exercise this option in writing at the 

address of the Landlord or her agent or representative at 

any time during the term of the lease as set forth herein.

c. Upon exercise of this option, the Tenant shall close 

on the purchase not later than August 15, 2014.

Walz did not exercise the 2012 Option during the original tenancy.

In July 2014, Walz presented Jon Freiden with a document titled “MODIFICATION TO LEASE/PURCHASE 

AGREEMENT” (2014 Agreement). Jon Freiden signed the 

document as a “[r]epresentative for Beverly Freiden” on 

August 4; Walz and Arnold did not sign the document. The 

2014 Agreement stated that “both parties had entered into a 

prior agreement regarding the parking lot” and provided:

Both parties wish to make the following modifications 

to the original agreement.

1. . . . Walz is to be responsible for the payment of the 

real estate taxes for this property.

2. The balance owed as of August 1, 2014 for the purchase of this property is $15,000.

3. . . . Walz will continue to make montly payments 

in the amount of $250 each month due on the first of 

the month and late after the 15th of each month. If the 

payment is received late, a $25 late fee will be due 

and payable.

4. This agreement is for one year, ending on July 31, 

2015. At the end of this agreement the balance of $12,000 

will be paid off or this agreement will be renegotiated at 

that time.

5. Jon Freiden will provide to . . . Walz, legal documents 

showing that as son for Beverly Freiden, he has authority to sell this property on behalf of Beverly Freiden.
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Walz did not exercise the option to purchase the real property 

by July 31, 2015. After the terms of the 2014 Agreement ended, 

Jon Freiden and Walz executed another “MODIFICATION TO 

LEASE/PURCHASE AGREEMENT” (2015 Agreement) on 

August 28, 2015. It stated, inter alia:

2. The balance owed as of August 1, 2015 for the purchase of this property is $11,750.

3. . . . Walz will continue to make monthly payments 

in the amount of $250 each month due on the first of 

the month and late after the 15th of each month. If the 

payment is received late, a $25 late fee will be due 

and payable.

4. This agreement is for one year, ending on July 31, 

2016. At the end of this agreement the balance will be 

paid off or this agreement will automatically renew at the 

same terms and conditions as the previous year.

Based on the 2015 Agreement, Walz began to exercise control 

of the property and claims that he had purchased the property 

from Jon Freiden.

In January 2017, Arnold petitioned the county court for 

Douglas County to reopen the estate of Beverly Freiden, 

alleging that assets of the estate were not fully distributed 

and needed to be distributed. On January 24, that court reappointed Arnold as personal representative of the estate. Jon 

Freiden, whose appointment as personal representative had 

expired, was not involved in the second appointment. See 

§ 30-24,117(b).

Arnold, as sole personal representative of the estate, filed 

a complaint in the district court for Douglas County seeking declaratory judgment and quiet title to the property. The 

complaint alleged that Walz had not timely exercised the 2012 

Option, and it indicated that there was no enforceable modification. Walz filed an answer denying the allegations.

Arnold moved for summary judgment. Arnold claimed that 

the real property had never been distributed and remained 

in the estate, and Walz claimed that either he had purchased 

the property from Beverly Freiden according to a modified 
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option agreement or the property was distributed to Jon 

Freiden, who sold it to Walz.

The district court held a hearing on the motion for summary 

judgment and received evidence but agreed not to hear oral 

arguments until after the parties could review the evidence 

and submit briefs. The parties submitted briefs but did not 

provide notice of a hearing. The court took the matter under 

advisement. In its written order, filed December 6, 2018, the 

district court granted Arnold’s motion for summary judgment 

and quieted title in favor of the estate. The court found that 

Walz had not exercised the 2012 Option, because he had not 

attempted to exercise it before July 31, 2014, and had not 

“‘close[d] on the purchase not later than August 15, 2014,’” as 

required by the contract. The district court also found that the 

subsequent 2014 Agreement and 2015 Agreement were unenforceable with respect to the option to purchase, because the 

option had ended on its own terms and there was no longer a 

valid option to exercise by Walz as a holdover tenant.

On December 13, 2018, Walz filed a “Motion for New 

Hearing and/or Motion to Reconsider and Set Aside Order 

Granting Summary Judgment on December 6, 2018.” Walz 

sought reconsideration of the summary judgment order, 

because the court had not held oral arguments on the motion 

and had made “[e]rrors in [l]aw . . . contrary to the [e]vidence.” 

At the hearing on Walz’ motion, in addition to identifying 

the aforementioned claimed procedural irregularities with the 

motion for summary judgment, Walz claimed that the court 

had failed to consider several of his arguments related to 

the validity of the 2014 Agreement and 2015 Agreement and 

attacked the judgment on the basis of errors of substantive 

law. The district court denied Walz’ motion to reconsider, and 

Walz appeals.

ASSIGNMENTS OF ERROR

Walz assigns, summarized and restated, that the district 

court erred when it found there were no disputed material facts, 
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concluded that the property remained in the estate, granted 

summary judgment in favor of Arnold, and quieted title in 

the estate.

STANDARDS OF REVIEW

[1] A question of jurisdiction is a question of law. Clarke 

v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 

284 (2017).

[2,3] Summary judgment is proper when the pleadings and 

the 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. Meyer 

Natural Foods v. Greater Omaha Packing Co., 302 Neb. 

509, 925 N.W.2d 39 (2019). An appellate court will affirm a 

lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to 

any material facts 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. Id.

[4,5] A quiet title action sounds in equity. Adair Holdings 

v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020). 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, provided that where credible 

evidence is in conflict on a material issue of fact, the appellate 

court considers and may give weight to the fact that the trial 

judge heard and observed the witnesses and accepted one version of the facts rather than another. Id.

ANALYSIS

Walz’ Notice of Appeal Was Timely.

Arnold claims that Walz’ postjudgment motion did not terminate the 30-day period during which a party may file a 

notice of appeal. See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 
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2018). Therefore, we initially address Arnold’s contention that 

Walz failed to timely appeal the district court’s May 30, 2019, 

dispositive order.

[6,7] Under § 25-1912, to vest an appellate court with jurisdiction, a party must timely file a notice of appeal. Clarke v. 

First Nat. Bank of Omaha, supra. A party must file a notice of 

appeal within 30 days of the judgment, decree, or final order 

from which the party is appealing. Id. However, filing a timely 

motion for a new trial or a timely motion to alter or amend a 

judgment terminates the time in which a notice of appeal must 

be filed. Id. Instead, the 30-day period to appeal starts anew 

upon the entry of the order ruling upon the motion for a new 

trial or the motion to alter or amend a judgment. Id.

[8,9] In some circumstances, an appellate court may treat 

a postjudgment motion under a different title as a motion to 

alter or amend a judgment, based on the actual relief it seeks, 

rather than the way it was titled by the movant. See, id.; State 

v. Bellamy, 264 Neb. 784, 652 N.W.2d 86 (2002). A motion to 

reconsider may be treated as a motion to alter or amend under 

Neb. Rev. Stat. § 25-1329 (Reissue 2016) if it was filed no 

later than 10 days after the entry of judgment, and must seek 

substantive alteration of the judgment. See, Clarke v. First Nat. 

Bank of Omaha, supra; State v. Bellamy, supra.

Arnold asserts that we should not treat Walz’ “Motion to 

Reconsider and Set Aside Order Granting Summary Judgment” 

as a motion to alter or amend, because it sought relief based 

on procedural irregularities in the summary judgment hearing 

and did not request a substantive alteration of the judgment. 

We disagree.

The motion on its face as well as the transcripts of the 

hearing on Walz’ postjudgment motion show that Walz sought 

relief based on both procedural and substantive reasons. Walz 

asserted several errors of law, including a claim that the 

district court had failed to consider when a personal representative was barred from seeking a “clawback” of real 

property. We consider Walz’ motion to be a motion to alter 
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or amend, and accordingly, Walz’ notice of appeal was timely 

filed following consideration of his postjudgment motion. See 

§§ 25-1329 and 25-1912. See, also, Clarke v. First Nat. Bank 

of Omaha, 296 Neb. 632, 895 N.W.2d 284 (2017).

Walz Did Not Exercise the Option in Lease.

We begin by examining Walz’ claim to the property based 

on the 2012 Option. The trial court found that Arnold’s evidence showed that the option was not executed. Walz did not 

refute this finding, and we therefore agree with the ruling by 

the trial court.

[10-12] An option to purchase real estate is a unilateral 

contract by which the owner of the property agrees with the 

holder of the option that he or she has the right to buy the 

property according to the terms and conditions of the option. 

Walters v. Sporer, 298 Neb. 536, 905 N.W.2d 70 (2017). By 

such an agreement, the owner does not sell the land; nor does 

the owner at the time contract to sell. Id. The owner does, 

however, agree that the person to whom the option is given 

shall have the right, at his or her election or option, to demand 

the conveyance in the manner specified. Id. An option compels 

performance within the time limit specified or, if none is mentioned, then within a reasonable time. Id.

[13-15] Options should be strictly construed and not 

extended beyond their express provisions. State Securities Co. 

v. Daringer, 206 Neb. 427, 293 N.W.2d 102 (1980); Wright v. 

Barclay, 151 Neb. 94, 36 N.W.2d 645 (1949). The exercise of 

an option to buy or sell real estate must be absolute, unambiguous, without condition or reservation, and in accordance 

with the offer made. State Securities Co. v. Daringer, supra; 

Master Laboratories, Inc. v. Chesnut, 154 Neb. 749, 49 N.W.2d 

693 (1951). Where the contract specifies the required manner 

of acceptance, the holder must conform. Gleeson v. Frahm, 211 

Neb. 677, 320 N.W.2d 95 (1982).

Among its other requirements to exercise the right to purchase the property, the 2012 Option was timebound and provided, “The Tenant may exercise his option at any time before 
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July 31, 2014 . . . .” Here, the district court found that Walz’ 

actions were insufficient to exercise the option prior to the 

expiration of this term. Walz’ evidence did not refute this 

finding. Therefore, the option expired under the terms of the 

original lease/purchase agreement, strictly construed. It appears 

from the record that Walz continued his tenancy and proceeded 

as though the option had not been extinguished. However, after 

July 31, 2014, Walz became a holdover tenant and his tenancy 

rights no longer included the right to elect or opt to buy the 

leased real property according to the terms of the 2012 Option. 

See Wright v. Barclay, supra. Because the option contained in 

the lease is not one of the terms of the tenancy itself, Nebraska 

law does not recognize that an option would be incorporated 

into a subsequent lease of a holdover tenant. See id. In this 

case, the original lease/purchase agreement and 2012 Option 

did not contain any provision for renewal of the lease or of the 

option, which might alter these general rules.

With respect to the effect of the 2014 Agreement and 

2015 Agreement, which purportedly modified the 2012 

lease/purchase agreement to empower Walz to treat his rent 

payments as installment payments to buy the real property, 

these contracts, if analyzed on their face, do not provide 

continuity with the original lease/purchase agreement and 

did not revive the original but extinguished option to buy the 

property. Although they are framed as a contract modification, they cannot modify a terminated contract. The district 

court did not err when it found that the effect of the 2014 

Agreement and 2015 Agreement was “moot” with regard to 

the 2012 Option, because there was no longer a valid option 

to exercise or modify.

Walz suggests that the effect of the 2014 Agreement and 

2015 Agreement was to retroactively apply Walz’ rent payments to a “balance owed” on the property. Contrary to Walz’ 

suggestion, the terms of the modifications regarding a balance 

owed are more in the nature of a land contract or installment contract and not consistent with the original lease/purchase agreement, which had provided for a purchase price of 
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$20,000. The 2012 Option did not suggest an intent that the 

original option should continue after July 31, 2014, in such 

a manner, and the 2014 Agreement and 2015 Agreement did 

not expressly create a new option to buy the property. It is 

well settled that “[t]he terms of an option should be precisely 

regarded and enforced without addition or alteration.” Master 

Laboratories, Inc. v. Chesnut, 154 Neb. at 752, 49 N.W.2d at 

696. The 2012 Option was limited in express terms and duration and could not be exercised or modified beyond its expiration. The district court did not err when it concluded that by 

application of the law to the unrefuted evidence, Walz had not 

exercised a valid option.

The District Court Did Not Err When 

It Quieted Title in the Estate.

Walz next claims that the district court erred when it quieted 

title to the real property in the estate. Walz contends that the 

property was distributed to Jon Freiden at the conclusion of the 

original informal probate and that Jon Freiden later sold the 

property to him. We reject this claim of error.

A deed of real estate, signed by the grantor, lawfully 

acknowledged, and recorded as directed by statute, is generally required to transfer title to real estate. Neb. Rev. Stat. 

§ 76-211 (Reissue 2018). But real property may be distributed in kind in accordance with the will; the absence of a 

recorded deed does not invalidate the instruments in the 

probate proceedings between the parties. See Neb. Rev. Stat. 

§§ 30-24,104 (Reissue 2016) and 76-238(1) (Reissue 2018). 

Section 30-24,104(a) provides, in relevant part, that “[u]nless 

a contrary intention is indicated by the will, the distributable 

assets of a decedent’s estate shall be distributed in kind to the 

extent possible . . . .”

Had the will of Beverly Freiden designated the real property to Jon Freiden without caveat, the property would have 

devolved upon her death without a deed. However, the will 

demonstrates a contrary intention. Beverly Freiden directed 

that the property
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may either be sold or retained by my personal representatives as they shall determine, and upon sale, whenever 

it occurs, my son, Jon Freiden, shall receive the first 

$25,000.00 from the sale and the remainder of the net 

sale proceeds shall be paid over to my grandson, Bart 

Arnold for his care.

The real property remained in the estate, and Jon Freiden 

was entitled to only the first $25,000 of the proceeds upon a 

sale of the real property. Pursuant to the will, the real property was not required to be distributed in kind to Jon Freiden 

because it was also meant to support Bart Arnold to the extent 

there would be additional sale proceeds.

Although the distribution sheet mentions that Jon Freiden 

was to receive real property from the estate, there is no evidence, such as the personal representative’s deed, demonstrating that a conveyance from the estate to Jon Freiden took 

place. To the contrary, the evidence included a continuity of 

registered ownership with no reference to Jon Freiden. In light 

of the intent of the will, the distribution sheet was not a conveyance of the property to Jon Freiden. Because Jon Freiden 

did not own the real property, he did not possess the authority 

to unilaterally convey the property to Walz. There is no genuine issue of material fact with respect to the fact that the real 

property remained in the estate. The district court did not err 

when it quieted title in the estate.

CONCLUSION

Walz, a tenant of the real property of the decedent, Beverly 

Freiden, did not exercise the option associated with the lease, 

and subsequent purported options were not valid or enforceable. 

The real property remained in the estate. Accordingly, we 

affirm the order of the district court that granted Arnold’s 

motion for summary judgment and quieted title in the estate.

Affirmed.