Walters v. Sporer, 905 N.W.2d 70

Background

In 1998 John D. Walters and his then-spouse conveyed ~8 acres to Douglas and Debra Lau; the 1998 warranty deed included a clause giving Grantor (John) a 30‑day written notice and "right to buy the lot on the same terms" (right of first refusal).
The transaction also involved a promissory note and trust deed; the Laus later paid off the note and received reconveyance in 2007; the warranty deed was recorded and the Laus accepted and used the property for years.
In 2013 the Laus sold the tract (including additional acreage previously acquired) to Jay and Melanie Sporer by warranty deed without giving John written notice; John filed suit in 2014 seeking specific performance and quiet title based on the reserved right of first refusal.
The district court granted summary judgment to the Laus and Sporers, holding the right of first refusal was void under Neb. Rev. Stat. § 36‑105 (statute of frauds for contracts for sale of land) because the Laus did not sign any separate writing; John appealed.
The Nebraska Supreme Court considered whether a right of first refusal reserved in a deed is an enforceable, nonvested property interest and whether acceptance of the deed binds the grantee to the reservation for statute‑of‑frauds purposes.

Issues

Issue	Plaintiff's Argument (Walters)	Defendant's Argument (Laus & Sporers)	Held
1. Is a right of first refusal in the deed enforceable or barred by statute of frauds?	The deed reservation creates an enforceable right; the Laus accepted the deed so § 36‑103 (and signature) is satisfied.	A right of first refusal is a contractual sale interest requiring § 36‑105 compliance (signed writing by seller); no such signed contract by the Laus exists.	Held: The right is a nonvested property interest reserved in the deed and governed by § 36‑103; acceptance of the deed binds the grantee and satisfies the signing requirement.
2. Is the clause a "reservation" (regranting to grantor) or an "exception" (retained existing right)?	It is a reservation to the grantor (creates a new, nonpossessory interest reserved from the conveyed estate).	It is not a reservation because it does not grant a use/enjoyment easement; alternatively it creates a future grant by grantee triggering § 36‑105.	Held: Character and effect show it is a reservation; reservation is subject to statute of frauds but is enforceable where deed is accepted.
3. Does acceptance/recording of the deed by the grantee bind the grantee to the reservation absent their signature or separate consideration?	Acceptance of a deed operates as the grantee's signature and estops the grantee from denying reservations in the deed; failure to read does not avoid effect.	The Laus contend they never agreed to an indefinite right and did not sign such an agreement; they relied on trust deed terms to limit duration.	Held: A grantee who accepts the deed is bound by its terms; the Laus were bound absent fraud and cannot escape the reservation by claiming they did not read or sign.
4. Remedy / disposition at summary judgment stage — was summary judgment proper for defendants?	John sought specific performance; summary judgment for defendants was premature because the reserved right is enforceable and factual issues remain.	Defendants argued no enforceable right exists so summary judgment was proper.	Held: Court erred granting summary judgment for defendants; reversed and remanded for further proceedings (material facts remain for trial).

Key Cases Cited

O'Connor v. Kearny Junction, 295 Neb. 981 (Neb. 2017) (appellate standards on equity and de novo review)
Schram Enters. v. L & H Properties, 254 Neb. 717 (Neb. 1998) (construction of deed language as question of law)
In re Estate of Fuchs, 297 Neb. 667 (Neb. 2017) (statutory interpretation as question of law)
Winberg v. Cimfel, 248 Neb. 71 (Neb. 1995) (right of first refusal constrains owner's power to sell once ripened)
Jones v. Stahr, 16 Neb. App. 596 (Neb. Ct. App. 2008) (ripening of right of first refusal into option and assignability analysis)
Bauermeister v. Waste Mgmt. Co., 280 Neb. 1 (Neb. 2010) (options and similar interests are nonvested property interests)
Schupack v. McDonald’s System, Inc., 200 Neb. 485 (Neb. 1978) (discussion of personal nature and assignability of certain rights of first refusal)
Schaffert v. Hartman, 203 Neb. 271 (Neb. 1979) (analysis distinguishing reservations that create use/enjoyment easements)
Elrod v. Heirs, Devisees, etc., 156 Neb. 269 (Neb. 1952) (definition and effect of reservations vs. exceptions in deeds)