Wilson v. Fieldgrove

devoid of legal merit that the district court abused its discretion
in concluding that the action was not frivolous. Thus, we find
the NRD’s assignment of error to be without merit.
CoNClusioN
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
C indy Wilson, A WidoWed, unremArried person, And
C indy Wilson As suCCessor in interest to the estAte
of her lAte husbAnd, K enny Wilson, Appellee ,
v. A llAn fieldgrove , AppellAnt.
787 N.W.2d 707
Filed september 3, 2010. 	No. s-09-1053.
1. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court reaches its conclusion independent of the trial court’s conclusion.
2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting 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.
3. Libel and Slander: Real Estate: Title. An action for slander of title is based
upon a false and malicious statement, oral or written, which disparages a person’s
title to real or personal property and results in special damage.
4. Contracts. Where the existence of a particular person is necessary for the
performance of a contractual duty, the death of that person, or his or her loss of
capacity to perform the duty, discharges the obligor’s duty to perform.
5. Landlord and Tenant: Leases. outside of contracts for personal services and
tenancies at will (or when the common-law rule for sharecrop agreements has
been abrogated), the death of the landlord or tenant in a year-to-year lease does
not terminate the lease.
6. ____: ____. A leasehold interest in a tenancy for a term of years or a year-to-year
tenancy is considered personal property.
7. Decedents’ Estates: Real Estate: Title. in Nebraska, title to both real and per-
sonal property passes immediately upon death to a decedent’s devisees or heirs,
subject to administration, allowances, and a surviving spouse’s elective share.
8. Decedents’ Estates: Leases. Apart from tenancies at will or leases requiring the
tenant’s personal services, a tenant’s rights and obligations in a leasehold inter-
est survive the tenant’s death and pass to his or her heirs, subject to the personal
representative’s right of possession.
548 	280 NebRAskA RepoRTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

9. Landlord and Tenant: Notice: Time. under Nebraska law, a year-to-year ten-
ancy can only be terminated by an agreement of the parties, express or implied,
or by notice given, 6 months before the end of the current year in the year-to-
year tenancy.
10. Leases: Landlord and Tenant: Notice: Time. in the absence of a different
agreement, a yearly lease of farmland begins on March 1 and ends on February
28 of the following year, and the rent becomes due at the expiration of the term.
in such a case, a landlord must give notice to terminate by september 1.
11. Decedents’ Estates: Landlord and Tenant: Leases: Notice. When a year-to-
year farm lease does not terminate upon the tenant’s death, the landlord can
only terminate the lease by giving notice to quit to the tenant’s heirs or per-
sonal representative.
12. Contracts: Notice: Time. Absent a contract provision or statute to the contrary,
a lease for a term of years terminates on the last day of the term without notice.
13. Summary Judgment: Appeal and Error. in reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom
the judgment was granted, and gives that party the benefit of all reasonable infer-
ences deducible from the evidence.
Appeal from the District Court for Howard County: KArin
l. noAKes, Judge. Affirmed.
Mark porto and Ronald s. Depue, of shamberg, Wolf,
McDermott & Depue, for appellant.
Rodney 	M. 	Wetovick, 	of 	Wetovick 	law 	office, 	for
appellee.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACK, and miller-lermAn, JJ.
C onnolly, J.
The 	appellee, 	Cindy Wilson 	(Wilson), 	filed 	a 	declara-
tory judgment action against the appellant, Allan Fieldgrove.
Wilson’s deceased husband, kenny Wilson (kenny), had an
oral year-to-year lease to farm Fieldgrove’s land. kenny died
during the term of the lease. To unilaterally terminate a year-to-
year lease, Nebraska law requires a landlord to give the tenant
notice to quit 6 months before the end of the current year of the
lease. Fieldgrove failed to give such notice.
Wilson sought a declaratory judgment to allow her to farm
the land the following year. Fieldgrove counterclaimed to
remove Wilson from the property and requested damages for
slander of title.
WilsoN v. FielDgRove 	549
Cite as 280 Neb. 548

This appeal presents an issue of first impression: under a
year-to-year lease, is a landlord required to give notice to a
tenant’s heirs if the tenant dies during the term of the lease?
We conclude that because the tenant’s death does not terminate
the lease, notice to the tenant’s heirs or personal representative
is required. because Fieldgrove failed to give Wilson notice to
terminate, Wilson had a valid leasehold interest and thus could
not have slandered Fieldgrove’s title. We affirm.
bACkgRouND
beginning about 1998, Fieldgrove leased farmland to kenny
under an oral year-to-year lease agreement, with an annual term
from March 1 through the end of February each year. Rent was
paid in cash. The most recent lease between Fieldgrove and
kenny ran from March 1, 2007, through February 29, 2008.
kenny died on August 4, 2007. Wilson was the sole beneficiary
of kenny’s estate. Wilson and her sons continued farming the
land after kenny’s death. on at least four occasions following
kenny’s death, Wilson or her sons communicated to Fieldgrove
their intention to continue farming the land in 2008. both
parties agree that Fieldgrove never gave written notice to any
member of the Wilson family of his intention to terminate the
farm lease before september 1, 2007.
some time after kenny’s death, Fieldgrove prepared to sell
the farm at public auction. upon learning of the upcoming sale,
Wilson again notified Fieldgrove that she intended to continue
to farm the land in 2008. on January 16, 2008, Wilson recorded
a document entitled “Notice of 2008 leasehold interest” with
the county register of deeds, in which she claimed an interest
in Fieldgrove’s property. on January 18, Fieldgrove sold the
property. on February 20, Fieldgrove notified Wilson that she
and her family were prohibited from entering the property and
would be treated as trespassers as of March 1. Wilson refused
to vacate the property and filed a complaint against Fieldgrove
on February 29 seeking a declaration that she was entitled
to the leasehold interest. Fieldgrove counterclaimed, alleging
slander of title, and he sought to have Wilson removed from the
property through a forcible entry and detainer claim.
After a hearing on Fieldgrove’s forcible entry and detainer
claim, the court ruled for Wilson. it found that because
550 	280 NebRAskA RepoRTs

Fieldgrove failed to provide the required 6-month notice of his
intention to terminate the lease, Wilson was entitled to pos-
session of the farm until February 28, 2009. After the court
dismissed Fieldgrove’s claim for forcible entry and detainer,
Fieldgrove amended the claimed damages under his slan-
der of title claim. Wilson then sought summary judgment on
Fieldgrove’s slander of title claim. The court granted Wilson’s
motion for summary judgment. Fieldgrove appeals.
AssigNMeNTs oF eRRoR
Fieldgrove assigns that the district court erred in failing to
find that the farm lease terminated on February 29, 2008, and
in granting Wilson’s motion for summary judgment on his slan-
der of title claim.
sTANDARD oF RevieW
[1] The parties do not dispute the terms of the oral lease. The
sole issue regarding the lease is whether a landlord is required
to give notice of termination to the farm tenant’s surviving
heirs when the tenant dies before the deadline for notice. This
issue presents a question of law. When reviewing questions of
law, an appellate court reaches its conclusion independent of
the trial court’s conclusion.1
[2] An appellate court will affirm a lower court’s granting
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.2
ANAlYsis
[3] because the 2008 farming season has already passed, the
court’s ruling that Wilson had a valid leasehold interest for that
year would be moot except that it is relevant to Fieldgrove’s
claimed damages under his slander of title claim. Neb. Rev.
stat. § 76-296 (Reissue 2009) provides in part that no person
1 see Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010).
2 see Community Dev. Agency v. PRP Holdings, 277 Neb. 1015, 767 N.W.2d
68 (2009).
WilsoN v. FielDgRove 	551
Cite as 280 Neb. 548

shall use the privilege of filing notices for the purpose of slan-
dering the title to real estate. An action for slander of title is
based upon a false and malicious statement, oral or written,
which disparages a person’s title to real or personal property
and results in special damage.3 For slander of title claims, other
jurisdictions have interpreted malice to require (1) knowledge
that the statement is false or (2) reckless disregard for its
truth or falsity.4 so, to determine whether Fieldgrove had a
valid slander of title claim, we first consider whether Wilson
had a valid leasehold interest on the property. A valid interest
would obviously defeat the slander of title claim because fil-
ing notice of a valid claim could not be considered either false
or malicious.
K enny’s leAsehold interest survived his deAth
Whether Wilson had a valid leasehold interest depends upon
whether Fieldgrove was required to give her notice to quit after
kenny died but before the lease expired. The court found that
Fieldgrove did not give Wilson notice to quit. Whether a land-
lord is required to give notice to quit to a tenant’s surviving
heir presents an issue of first impression.
[4] Fieldgrove argues that after kenny died, the lease termi-
nated at the end of the crop year without notice. it is true that
“where the existence of a particular person is necessary for the
performance of a contractual duty, the death of that person, or
his or her loss of capacity to perform the duty, discharges the
obligor’s duty to perform.”5 Courts generally hold that share-
crop farm leases, under which the tenant pays the landlord a
share of the crops raised, implicitly include an agreement for
the tenant’s particular farming skills in which the owner has
confidence.6 in a sharecrop lease agreement, the landlord’s
receipts directly depend upon the tenant’s skills and industry.7
3 see Norton v. Kanouff, 165 Neb. 435, 86 N.W.2d 72 (1957).
4 see 50 Am. Jur. 2d Libel and Slander § 531 (2006).
5 In re Estate of Sauder, 283 kan. 694, 704, 156 p.3d 1204, 1212 (2007),
citing Restatement (second) of Contracts § 262 (1981).
6 see id. (citing cases).
7 see Crump v. Tolbert, 210 Ark. 920, 198 s.W.2d 518 (1946).
552 	280 NebRAskA RepoRTs

so, under the common law, a sharecrop agreement is usually
considered a personal services contract that does not survive
the tenant’s death and is not inheritable.8
but some courts have found this rule to be abrogated by
their state statutes. For example, courts do not agree whether
a statutory notice to quit requirement applicable to sharecrop
agreements abrogates the common-law rule regarding termi-
nation of the lease upon a farm tenant’s death.9 Further, the
kansas supreme Court has reasoned that the terminate-at-death
rule for sharecrop agreements is abrogated under a state stat-
ute that subjects the administrator of a tenant’s estate to the
tenant’s liabilities under a lease. under this statute, the court
held that “a lease, including an agricultural sharecrop lease,
continues in effect upon the death of the tenant unless the par-
ties have contracted otherwise, and the executor or administra-
tor of the lessee’s estate has the fiduciary obligation to see that
the lessee’s obligations are met.”10
Nebraska does not have a statutory notice requirement, but
we have judicially required a 6-month notice to quit for year-
to-year farm tenancies.11 And we have applied this rule to
sharecrop lease agreements.12 but we need not decide whether
the common-law rule regarding termination upon the tenant’s
death of a sharecrop agreement is abrogated. The lease here is
a cash lease agreement. because Fieldgrove did not share in
the fruits of kenny’s labor, we do not construe the lease as a
contract for kenny’s personal services.
[5,6] outside of contracts for personal services and tenan-
cies at will (or when the common-law rule for sharecrop agree-
ments has been abrogated), the death of the landlord or tenant
8 see, Ames v. Sayler, 267 ill. App. 3d 672, 642 N.e.2d 1340, 205 ill. Dec.
223 (1994); Read v. Estate of Mincks, 176 N.W.2d 192 (iowa 1970); In re
Estate of Sauder, supra note 5; 21A Am. Jur. 2d Crops § 48 (2008).
9 Compare Ames, supra note 8, with Read, supra note 8.
10 In re Estate of Sauder, supra note 5, 283 kan. at 708, 156 p.3d at 1214.
11 see, e.g., Fisher v. Stuckey, 201 Neb. 439, 267 N.W.2d 768 (1978), citing
Critchfield v. Remaley, 21 Neb. 178, 31 N.W. 687 (1887).
12 see Fisher, supra note 11.
WilsoN v. FielDgRove 	553
Cite as 280 Neb. 548

in a year-to-year lease does not terminate the lease.13 instead, a
leasehold interest in a tenancy for a term of years or a year-to-
year tenancy is considered personal property.14 And unless the
contract provides otherwise, courts have held that a leasehold
interest transfers by operation of law to the tenant’s personal
representative or heir.15
[7,8] A main reason for classifying a leasehold interest as
personal property was that earlier laws of succession treated
the devolution of personal property differently than real prop-
erty.16 but this distinction is less relevant today. since 1974,
in Nebraska,17 title to both real and personal property passes
immediately upon death to the decedent’s devisees or heirs,
subject to administration, allowances, and a surviving spouse’s
elective share.18 but the point of these earlier cases is still
relevant: Apart from tenancies at will or leases requiring the
tenant’s personal services, a tenant’s rights and obligations
in a leasehold interest survive the tenant’s death and pass to
his or her heirs, subject to the personal representative’s right
of possession.
For example, courts have held that the administrator or heir
of a tenant’s estate can (1) be liable for the tenant’s obligation
13 Read, supra note 8; In re Estate of Sauder, supra note 5; State Bank of
Loretto v. Dixon, 214 Minn. 39, 7 N.W.2d 351 (1943). see, also, Von
Seggern v. Freeland, 200 Neb. 570, 264 N.W.2d 436 (1978); Robert s.
schoshinski, American law of landlord and Tenant § 10:3 (1980 & Cum.
supp. 2010); Annot. 42 A.l.R.4th 963 (1985).
14 see Hartman v. Drake, 166 Neb. 87, 87 N.W.2d 895 (1958). see, also,
Pergament Norwalk Corp. v. Kaimowitz, 4 Conn. App. 633, 496 A.2d 217
(1985).
15 see, Olson v. Frazer, 154 kan. 310, 118 p.2d 505 (1941); Fowler v.
Loughlin, 183 Md. 48, 36 A.2d 671 (1944); Orchard v. Wright-Dalton-
Bell-Anchor Store Co., 197 s.W. 42 (Mo. 1917); Montana Consol. Mines
Corp. v. O’Connell, 107 Mont. 273, 85 p.2d 345 (1938); Swan v. Bill, 95
N.H. 158, 59 A.2d 346 (1948). see, also, In re Estate of Logan, 71 ohio
law Abs. 391, 131 N.e.2d 454 (ohio prob. 1955).
16 schoshinski, supra note 13, § 1:2.
17 see In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009).
18 see, Neb. Rev. stat. § 30-2401 (Reissue 2008); Ruzicka v. Ruzicka, 262
Neb. 824, 635 N.W.2d 528 (2001).
554 	280 NebRAskA RepoRTs

under the lease,19 (2) seek a renewal of the lease,20 (3) extend
a lease by holding over,21 (4) fulfill the tenant’s farming obli-
gations under a lease to trigger a landlord’s duties,22 and (5)
rely on the landlord’s obligation to give notice to quit under a
year-to-year lease.23 This court has similarly held that a special
administrator could exercise the tenant’s purchase option under
a 5-year lease when the tenant died during the term.24 And we
have recognized the right of a tenant’s administrator to convey
the leasehold interest to a third party.25
because the farm lease did not require kenny’s personal
services, it did not terminate upon his death but passed imme-
diately to his heirs. And the parties stipulated that Wilson was
kenny’s sole heir. We conclude that the leasehold interest
passed to Wilson upon kenny’s death.
fieldgrove WAs required to give notiCe to quit
[9,10] under Nebraska law, a year-to-year tenancy can only
be terminated by an agreement of the parties, express or
implied, or by notice given, 6 months before the end of the
current year in the year-to-year tenancy.26 generally, in the
absence of a different agreement, a yearly lease of farmland
begins on March 1 and ends on February 28 of the following
year, and the rent becomes due at the expiration of the term.27
in such a case, a landlord must give notice to terminate by
19 see, e.g., Olson, supra note 15; 49 Am. Jur. 2d Landlord and Tenant § 114
(2006).
20 see, Montana Consol. Mines Corp., supra note 15; Swan, supra note 15.
21 see In re Estate of Logan, supra note 15.
22 In re Estate of Sauder, supra note 5.
23 Read, supra note 8.
24 see Von Seggern, supra note 13.
25 see Goetz Brewing Co. v. Robinson Outdoor Advertising Co., 156 Neb.
604, 57 N.W.2d 169 (1953).
26 see, Moudry v. Parkos, 217 Neb. 521, 349 N.W.2d 387 (1984); Fisher,
supra note 11; Sempek v. Minarik, 200 Neb. 532, 264 N.W.2d 426
(1978).
27 Stuthman v. Stuthman, 245 Neb. 846, 515 N.W.2d 781 (1994); Moudry,
supra note 26.
WilsoN v. FielDgRove 	555
Cite as 280 Neb. 548

september 1.28 Here, it is uncontested that neither Fieldgrove
nor Wilson gave notice to quit.
in discussing notice requirements under year-to-year tenan-
cies, the Minnesota supreme Court held that the deceased land-
lord’s estate was required to give the tenant the required notice
of its intent to terminate the lease.29 Absent such notice, the
lease continued for the next year. similarly, the iowa supreme
Court found that the tenant’s death did not terminate the lease
agreement. Rather, “[a]bsent receipt of statutory termination of
tenancy notice . . . the widow, as sole surviving beneficiary and
executor of her deceased husband’s estate, claimed a continu-
ing right to possession and occupancy of the premises for the
[next] crop year.”30
[11] We believe that the reasoning of these cases applies
here. We conclude that when a year-to-year farm lease does not
terminate upon the tenant’s death, the landlord can only termi-
nate the lease by giving notice to quit to the tenant’s heirs or
personal representative. Fieldgrove failed to comply with this
requirement. Wilson, who possessed kenny’s leasehold interest
in the property and continued to farm it, was entitled to rely on
that lack of notice.
but Fieldgrove relies on Dobyns v. S.C. Dept. of Parks &
Rec.31 in Dobyns, the tenant died during the term of a 10-year
lease. The issue was whether his heirs could exercise his right
to renew the lease. The south Carolina supreme Court stated,
“[A]lthough the lease does not terminate on a lessee’s death,
the lease passes to the estate or heirs only until the expiration
of the current lease period.”32 The court in Dobyns also specifi-
cally found that because the lease was personal to the tenant,
the right to renew the lease could not be assigned or transferred
without consent of the landlord.
28 Mathiesen v. Bloomfield, 184 Neb. 873, 173 N.W.2d 29 (1969).
29 State Bank of Loretto, supra note 13.
30 Read, supra note 8, 176 N.W.2d at 192.
31 Dobyns v. S.C. Dept. of Parks & Rec., 325 s.C. 97, 480 s.e.2d 81
(1997).
32 Id. at 101, 480 s.e.2d at 84.
556 	280 NebRAskA RepoRTs

[12] Neither of these rationales applies here. As stated, the
lease was not personal to kenny—i.e., it did not require his
personal services. And absent a contract provision or statute
to the contrary, a lease for a term of years terminates on the
last day of the term without notice.33 so even assuming that
the holding in Dobyns is correct under a lease for a term of
years—an issue we do not consider—here, we are concerned
with a year-to-year tenancy which follows the notice rule stated
above. As such, Dobyns provides little guidance.
Fieldgrove also relies on Estate of Kiefer v. Gegg.34 He argues
that under this Missouri case, Fieldgrove was not required to
provide notice of his intent to terminate the lease after kenny’s
death. in Estate of Kiefer, the tenant farmed property under a
year-to-year tenancy and a statute required 60 days’ notice to
quit. The landlord did not give notice, and the tenant contin-
ued to farm the property the next year. After the landlord died
during that year, his administrator leased the land to another
tenant. The court determined that because no landlord-tenant
relationship was established between the administrator and the
first tenant after the landlord’s death, the administrator could
lease the property to another tenant. but this conclusion is con-
trary to the general rule that the death of the landlord or tenant
does not terminate a year-to-year lease. We decline to follow
Estate of Kiefer.
The district court did not err in finding that Wilson had a
valid interest in the 2008 farming season.
fieldgrove’s slAnder of title C lAim fAils
beCAuse Wilson hAd leAsehold interest
[13] summary judgment is proper 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
33 see, schoshinski, supra note 13, § 2:9; 49 Am. Jur. 2d, supra note 19.
Compare Johnson Lakes Dev. v. Central Neb. Pub. Power, 254 Neb. 418,
576 N.W.2d 806 (1998).
34 Estate of Kiefer v. Gegg, 622 s.W.2d 733 (Mo. App. 1981).
WilsoN v. FielDgRove 	557
Cite as 280 Neb. 548

judgment as a matter of law.35 in reviewing a summary judg-
ment, we view the evidence in the light most favorable to the
party against whom the judgment was granted, and give that
party the benefit of all reasonable inferences deducible from
the evidence.36
Here, the district court correctly found that Wilson had a
valid leasehold interest. Thus, the claim Wilson filed against
the property was not false or malicious. And the record lacks
any evidence to suggest Wilson filed the claim to slander the
title to the property. she believed, rightfully so, that she had
a valid interest in the property. The district court did not err
in granting Wilson’s motion for summary judgment, as no
genuine issue of material fact could be drawn from the facts
presented.
CoNClusioN
The district court correctly determined that Wilson had
a valid legal interest in the leased property. Fieldgrove was
required to give at least 6 months’ notice of his intention to
terminate the lease and failed to do so. Therefore, the lease was
renewed for an additional year commencing March 1, 2008.
The district court did not err in granting Wilson’s motion for
summary judgment on Fieldgrove’s slander of title claim.
A ffirmed.
35 see, Ashby v. State, 279 Neb. 509, 779 N.W.2d 343 (2010); Bamford v.
Bamford, Inc., 279 Neb. 259, 777 N.W.2d 573 (2010).
36 Bamford, supra note 35; Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545
(2009).
stAte of nebrAsKA, Appellee , v.
eriC t. mCghee , AppellAnt.
787 N.W.2d 700
Filed september 3, 2010. 	No. s-10-337.
1. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
558 	280 NebRAskA RepoRTs