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 reverse and remand this case

for further proceedings.

I

[¶2] In November 1981, Richard Wageman’s parents, Arthur and Doris Wageman,

entered into a contract for deed to sell to Julie Schindler’s father, Eugene Weisbeck,

a portion of a quarter section of Morton County property described 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. On the same day, the Schindlers

entered into a lease agreement with Weisbeck in which they agreed to rent to own the

property that was the subject of the contract for deed. The property described in the

lease was identical to the legal description in the contract for deed and the purchase

price listed in the lease was also $70,000. The Schindlers made 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 the contract for deed,

the Schindlers were required by the lender to have the land surveyed because the land

subject to the loan had to be less than 10 acres. The Schindlers 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 “Outlot ‘B’” (“Lot B”), that

comprises the remainder of the property described in the contract for deed. In August

1993, after the contract for deed had been satisfied, Doris Wageman 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 same day, Weisbeck

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executed a warranty deed conveying to the Schindlers only Lot A. The deed listed the

consideration as $57,000. In February 2001, Richard Wageman also 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 to those documents,” and

dismissed the action.

II

[¶5] The Schindlers and the Estate seek to reform the warranty deeds to match the

property description in the 1981 contract for deed. They contend, 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 written instruments:

When, through fraud or mutual mistake of the parties, or a mistake of

one party which the other at the time knew or suspected, a written

contract does not truly express the intention of the parties, it may be

revised on the application of a party aggrieved so as to express 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 does 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 remedy

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 ¶

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24 (quoting Ell v. Ell, 295 N.W.2d 143, 150 (N.D. 1980)). Parol

evidence is admissible in a reformation action on the grounds of 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 something

different from what was said in the document.” Arndt, at ¶ 12

(quotations omitted).

In reformation cases, a presumption arises from the terms of the instrument that it

correctly expresses the true agreement and intention of the parties. 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 the 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 finding of fact is clearly erroneous if it is

induced by an erroneous view of the law, if there is no evidence to support it, or if an

appellate court is left with a definite and firm conviction a mistake 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 Lots 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 the 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

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comprising Lot A, and although the Schindlers offered to purchase Lot B from him,

he declined the offer because he wanted his son to have the property. 

[¶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 court’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 contract for deed does not

state the parties[’] intended agreement.” That statement misstates 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 paragraph of the district

court’s decision and reads as follows: “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.” The second statement misstates the 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 district court’s decision is

devoid of a correct statement of the law; that the Schindlers were required to provide

clear and convincing evidence showing the warranty deeds did not correctly state the

parties’ intent. Further support for the Schindlers’ and the Estate’s argument is

provided by the following statement in the district court’s decision: “While there may

be an argument that the contract for deed leaves open the possibility it could be

interpreted to include not only what was later platted as Auditor’s Lot ‘A,’ but also

Auditor’s Lot ‘B,’ the subsequent documents weighed against such an argument.”

That statement is contrary to the parties’ agreement that the contract for deed

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unambiguously included the property described in both Lot A and Lot B, and supports

a conclusion that the district court had improperly directed its 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 erred 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 Estate acknowledge

this ground for relief was not specifically pled in their complaint, 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 property 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 adverse possession,

and the doctrines are conceptually similar and share some of the 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 attorney noted for the

record that the Schindlers and the Estate had withdrawn their pled claim of adverse

possession. At the end of the trial, Wageman’s attorney objected to a question about

taxes and the attorney for the Schindlers and the Estate assured 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

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claim of acquiescence, when that issue is similar to the withdrawn claim of adverse

possession.

IV

[¶15] The district court misstated how the law applies to this case. We reverse the

judgment and remand the case to the district court for a determination 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 forth in part III of the

majority opinion. I also agree with much of the majority’s analysis in part II. Where

I part ways is in reversing the court based on a perceived misapplication 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 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,” and dismissed the action. (Emphasis added.)

[¶19] The Schindlers presented no evidence to show a mistake in the legal

description of the property conveyed that would foreclose the possibility 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

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“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 decision 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 not state the parties[’]

intended agreement.” It appears the court’s reference to the contract for deed was an

inadvertent misstatement because the court clearly recognized in 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 majority that the court

made some misstatements in its analysis. However, I am satisfied that the court’s

decision was not induced by an erroneous view of the law. Even if the court applied

the wrong analysis, the result would be the same based on the lack of evidence to

show a mistake was made in conveying the property. Where the court 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 Schindlers 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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