### Filed 2/21/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2019 ND 41

Larry Schindler, Julie Schindler a/k/a Judy Schindler, and Estate of Eugene Weisbeck, Plaintiffs and Appellants

v.

Richard D. Wageman, Defendant and Appellee

and

all other Persons unknown or claiming an Estate of interest therein, Defendants

No. 20180024

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

REVERSED AND REMANDED.
Opinion of the Court by Jensen, Justice

. Garrett D. Ludwig , Mandan, ND, for plaintiffs and appellants.

Malcolm H. Brown , Bismarck, ND, for defendants and appellees.Schindler v. Wageman
No. 20180024

Jensen, Justice. [¶1] Larry and Julie Schindler and the estate of Eugene Weisbeck (“the Estate”) appeal from a judgment dismissing their action to reform warranty deeds and quiet title in themselves to certain Morton County property. Because we cannot determine whether the district court correctly applied the law, we revers e and remand this case for further proceedings.
I [¶2] In November 1981, Richard Wageman’s parents, Arthur and Dor is Wageman,
entered into a contract for deed to sell to Julie Schindler’s f ather, Eugene Weisbeck, a portion of a quarter section of Morton County property descri bed in part as “lying North of the service road” and “being eleven (11) acres more or less.” The contract for deed listed the purchase price as $70,000. O n the same day , the Schindlers entered into a lease agreement with Weisbeck in which they agre ed to rent to own the property that was the subject of the contract for deed. The pr operty described in the lease was identical to the legaldescription in the contract fo r deed and the purchase price listed in the lease was also $70,000. The Schindlers mad e the payments on the contract for deed between the Wagemans and Weisbeck. [¶3] In order to obtain a loan to pay off the balance owed on th e contract for deed, the Schindlers were required by the lender to have the land sur veyed because the land subject to the loan had to be less than 10 acres. The Schindle rs had platted a 9.99 acre parcel of the property which was described as “Auditor’s Lot ‘A ’” (“Lot A”). Lot A did not include 5.43 acres, which the parties refer to as “Outl ot ‘B’” (“Lot B”), that comprises the remainder of the property described in the contra ct for deed. In August 1993, after the contract for deed had been satisfied, Doris Wag eman executed a warranty deed conveying to Weisbeck only Lot A “in fulfillment of Contract for Deed.” The deed listed the consideration as $70,000. On the s ame day, Weisbeck

1executed a warranty deed conveying to the Schindlers only Lot A . The deed listed the consideration as $57,000. In February 2001, Richard Wageman al so executed a warranty deed to the Schindlers conveying only Lot A to assist them in refinancing a mortgage. [¶4] After learning they were not considered the owners of Lot B , the Schindlers and the Estate brought this action to reform the warranty deeds and quiet title to both Lot A and Lot B in conformity with the 1981 contract for deed. Following a trial, the
district court found the “Schindlers have not met the burden of proving the parties to the contract for deed and the warranty deed conveying Auditor’s Lot ‘A’ to Eugene Weisbeck did not correctly state the intention of the parties t o those documents,” and
dismissed the action.
II [¶5] The Schindlers and the Estate seek to reform the warranty d eeds to match the property description in the 1981 contract for deed. They conte nd, in part, that the district court misapplied the law in determining their cause of action seeking to reform the warranty deeds should be dismissed. [¶6] Section 32-04-17, N.D.C.C., provides for reformation of wri tten instruments: When, through fraud or mutual mistake of the parties, or a mist ake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, i t may be revised on the application of a party aggrieved so as to expres s that intention so far as it can be done without prejudice to rights acquired by third persons in good faith and for value. [¶7] In George v. Veeder , 2012 ND 186, ¶ 13 , 820 N.W.2d 731, we explained: “‘The party seeking reformation of a written instrument must establish by clear and convincing evidence that the document do es not state the parties’ intended agreement.’” Arndt [v. Maki] , 2012 ND 55, ¶ 12 , 813 N.W.2d 564 (quoting Johnson [v. Hovland] , 2011 ND 64, ¶ 12 , 795 N.W.2d 294). In considering whether to grant the high re medy of reformation of a written instrument, “courts should exercise great caution and require a high degree of proof, especially when death has sealed the lips of the original parties or a party .” Spitzer v. Bartelson , 2009 ND 179, ¶ 24 , 773 N.W.2d 798 (quotations omitted). A court should grant reformation “‘only upon the certainty of error.’” Id. at ¶

224 (quoting Ell v. Ell , 295 N.W.2d 143, 150 (N.D. 1980)). Parol evidence is admissible in a reformation action on the grounds o f fraud or mutual mistake of the parties. Arndt , at ¶ 12 ; Johnson , at ¶ 12 . “A mutual mistake that will justify reformation requires that, at the time of the execution of the agreement, both parties intended to say so mething different from what was said in the document.” Arndt , at ¶ 12 (quotations omitted). In reformation cases, a presumption arises from the terms of th e instrument that it correctly expresses the true agreement and intention of the par ties. See Van Berkom
v. Cordonnier , 2011 ND 239, ¶ 11 , 807 N.W.2d 802. The mere discrepancy between
a contract for deed and a deed is insufficient to demonstrate t he deed was signed in

error. See In re Estate of Vaage , 2016 ND 32, ¶ 25 , 875 N.W.2d 527; Van Berkom , at ¶ 13 ; Spitzer , at ¶ 28

. [¶8] Whether a contract contains a mistake sufficient to support a claim for reformation is a question of fact which will not be reversed on appeal unless it is clearly erroneous under N.D.R.Civ.P. 52(a)

. See Motter v. Traill Rural Water Dist. , 2017 ND 267, ¶ 10 , 903 N.W.2d 725. A f inding of fact is clear ly erroneous if it is induced by an erroneous view of the law, if there is no evidenc e to support it, or if an appellate court is left with a definite and firm conviction a m istake has been made.
See Freidig v. Weed , 2015 ND 215, ¶ 13 , 868 N.W.2d 546. [¶9] The Wagemans and Eugene Weisbeck are deceased. The parties agree the contract for deed includes all of the property described as Lot s A and B, and further agree the warranty deeds only include the property described as Lot A. It is undisputed that Richard Wageman paid the property taxes on Lot B during the relevant time period. The warranty deed between Weisbeck and the Schindlers lists the consideration as $57,000 rather than the $70,000 stated in the contract for deed. Other than the discrepancy between the contract for deed and th e warranty deed, the Schindlers rely on Larry Schindler’s testimony that he “walked” their property with Arthur Wageman and their walk encompassed both Lot A and Lot B. However, Richard Wageman testified his parents’ intent was to sell only the ten acres

3comprising Lot A, and although the Schindlers offered to purcha se Lot B from him, he declined the offer because he wanted his son to have the pro perty. [¶10] The Schindlers and the Estate are seeking to reform the warranty deeds. The Schindlers and the Estate assert the district court misapplied the law by requiring them to provide clear and convincing evidence the contract for deed did not state the parties’ agreement, rather than requiring them to provide clear and convincing evidence the warranty deeds did not correctly state the parties ’ agreement. [¶11] There are at least two statements within the district cour t’s decision that incorrectly state how the law applies to this case. The first statement appears in the analysis section of the district court’s decision and reads as follows: “The Schindlers must establish by clear and convincing evidence that the contra ct for deed does not state the parties[’] intended agreement.” That statement misst ates the law by directing the inquiry about the parties’ intent to the contract for deed rather than the warranty deeds. The second statement appears in the concluding paragrap h of the district
court’s decision and reads as f ollows: “The Schindlers have no t met the burden of proving the parties to the contract for deed and the warranty d eed conveying Auditor’s Lot ‘A’ to Eugene Weisbeck did not correctly state th e intention of the parties to those documents.” The second statement misstates th e law by again directing the inquiry about the parties’ intent to the contract for deed. [¶12] We agree with the Schindlers and the Estate that the district court misstated how the law applied to this case. We also note that the distri ct court’s decision is devoid of a correct statement of the law; that the Schindlers w ere required to provide clear and convincing evidence showing the warranty deeds did no t correctly state the parties’ intent. Further support for the Schindlers’ and the E state’s argument is provided by the following statement in the district court’s dec ision: “While there may be an argument that the contract for deed leaves open the possi bility it could be interpreted to include not only what was later platted as Audit or’s Lot ‘A,’ but also Auditor’s Lot ‘B,’ the subsequent documents weighed against suc h an argument.” That statement is contrary to the parties’ agreement that the c ontract for deed

4unambiguously included the property described in both Lot A and Lot B, and supports a conclusion that the district court had improperly directed it s attention toward determining whether there was clear and convincing evidence that the contract for deed did not state the parties’ intent rather than determining if there was clear and convincing evidence that the warranty deeds do not reflect the parties’ intent. While it is possible that the above statements were inadvertent mistakes, in the absence of any correct statement of how the law applies to this case, we are compelled to remand
this case to the district court.
III [¶13] The Schindlers and the Estate argue the district court err ed in failing to consider their alternative argument, made in a post-trial brief , that they acquired Lot B under the doctrine of acquiescence. The Schindlers and the E state acknowledge this ground for relief was not specifically pled in their compl aint, so we assume they argue that acquiescence was tried by the implied consent of the parties. See, e.g., Mann v. Zabolotny , 2000 ND 160, ¶¶ 12-13 , 615 N.W.2d 526. “The doctrine of acquiescence allows a property owner to acquire neighboring pro perty due to an honest mistake over the location of the boundary line.” Brown v. Brodell , 2008 ND 183, ¶ 9 , 756 N.W.2d 779. Acquiescence is a “sister doctrine” of advers e possession, and the doctrines are conceptually similar and share some of th e same elements.
Sauter v. Miller , 2018 ND 57, ¶¶ 11, 16 , 907 N.W.2d 370. [¶14] At the beginning of the trial in this case, Wageman’s atto rney noted for the
record that the Schindlers and th e Estate had withdrawn their p led claim of adverse possession. At the end of the trial, Wageman’s attorney object ed to a question about taxes and the attorney for the Schindlers and the Estate assure d him “[i]t’s not for adverse possession purposes.” Consent to try an issue outside the pleadings cannot be implied from evidence which is relevant to the pleadings but which also bears on an unpled issue. See Mann , 2000 ND 160, ¶ 12 , 615 N.W.2d 526. There is no basis on this record to imply any consent on the part of Wageman to a trial on an unpled

5claim of acquiescence, when that issue is similar to the withdr awn claim of adverse possession.
IV [¶15] The district court misstated how the law applies to this c ase. We reverse the judgment and remand the case to the district court for a determ ination of whether there is clear and convincing evidence that the warranty deeds do not correctly state the parties’ intent. [¶16] Jon J. Jensen Jerod E. Tufte Daniel J. Crothers Gerald W. VandeWalle, C.J. McEvers, Justice , concurring in part and dissenting

. [¶17] I agree with the majority that the district court did not err by not addressing the Schindlers and the Estate’s argument on acquiescence as set for th in part III of the majority opinion. I also agree with much of the majority’s ana lysis in part II. Where I part ways is in reversing th e court based on a perceived misa pplication of the law. [¶18] The Schindlers and the Estate brought this action to reform the warranty deeds and quiet title to both Lot A and Lot B in conformity with the 1981 contract for deed. Following a trial, the district court found the “Schindlers hav e not met the burden of proving the parties to the contract for deed and the warranty deed conveying Auditor’s Lot ‘A’ to Eugene Weisbeck did not correctly state th e intention of the parties to those documents,” and dismissed the action. (Emphas is added.) [¶19] The Schindlers presented no evidence to show a mistake in the legal description of the property conveyed that would foreclose the p ossibility that the Wagemans and Weisbeck changed their minds about the amount of the property to be conveyed by the warranty deed. The district court explained: In 1993, Ms. Schindler’s father had the property platted and Auditor’s Lot “A” was identified. On August 19, 1[99]3, Doris Wageman conveyed that specific parcel to Mr. Weisbeck in a document that referenced the contract for deed. Mr. Weisbeck must have been familiar with the plat and with portions referred to as Auditor ’s Lot “A” and Auditor’s Lot “B.” In fact, Mr. Weisbeck conveyed Auditor’ s Lot

6“A” to the Schindlers. Mr. Wageman later signed a warranty deed conveying Auditor’s Lot “A” to the Schindlers, although the parties do not recall why the document was prepared. The Schindlers have not met the burden of proving the parties to the contract for deed and the warranty deed conveying Auditor’s Lot “A” to Eugene Weisbeck did not correctly state the intention of the parties to those documents. (Emphasis added.) [¶20] The Schindlers and the Estate argue the district court’s d ecision was induced by an erroneous view of the law because the court stated that they “must establish by clear and convincing evidence that the contract for deed does n ot state the parties[’] intended agreement.” It appears the court’s reference to the c ontract for deed was an inadvertent misstatement because the court clearly recognized i n its opinion that the Schindlers requested “reform[ation of] the warranty deeds in this matter to convey both Auditor’s Lot ‘A’ and an additional piece of property platted as Auditor’s Lot ‘B’ to the Schindlers.” (Emphasis added.) I agree with the ma jority that the court made some misstatements in its analysis. However, I am satisfi ed that the court’s decision was not induced by an erroneous view of the law. Evenif the court applied the wrong analysis, the result would be the same based on the l ack of evidence to
show a mistake was made in conve ying the property. Where the c ourt comes to the correct conclusion, it will not be disturbed because it gives an incorrect reason for its
decision. Heinzeroth v. Bentz , 116 N.W.2d 611, 616 (N.D. 1962). [¶21] I would conclude the district court’s finding that the Sch indlers failed to establish by clear and convincing evidence there was a mistake in the property description in the warranty deeds is not clearly erroneous and would affirm the judgment. [¶22] Lisa Fair McEvers

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