Two widows in their 80s who, with their husbands contracted to sell their family farm to Waste Management, found themselves in court over their contractual right to buy back their farm. They chose Domina Law Group pc llo for the task. The Douglas County, Nebraska Landfill served the Omaha metropolitan area from 1989 when Waste Management took over the operation, until 2003. Landfill operations ceased then. Filling, with a single substance (a “monofill”) began then.
The 1989 contract, which was the subject of previous litigation, contained an option to buy back the farm. “Our clients contracted, when they sold their farm, for the right to get it back,” Domina said. This right was extremely important to them, as they preferred not to sell the farm. At the time, the parties explored lease arrangements that proved unworkable strictly due to regulatory requirements that the land be titled, and not leased, to the landfill operator.
Domina explained, “Our clients contracted for the option right to buy back the farm for $1.00 at anytime within two years after the landfill ceased to be used for landfill purposes. When the clients asked for our help, we learned an effort to exercise the option had been made, but the effort appeared to be faulty. No title search had been done, and it became clear that corrective action was well advised to assure an appropriate exercise of the option and eliminate issues without conceiving that the first attempt was inadequate,” Domina explained. The pleadings on file in court when Domina Law took over the case were amended after a second tender of the option price.
“We expected a motion for summary judgment on the law from Waste Management,” Domina said. “A very valuable piece of land and sum of money are at issue. We knew this. We expected high level of resistance.”
When it came, the summary judgment motion invoked the rule against perpetuities. Waste hired a law professor to write its papers for the court. The law professor, surveyed texts and treatises on the rule against perpetuities, an ancient doctrine of the law, and argued that the rule invalidated the option.
“Our elderly clients found themselves plunged in the midst of a centuries old debate against perpetuities that restrict transfers of land,” Domina said. “We had good facts with which to work, and made a thorough study of the law.” DLGpc lawyers Linda Christensen and Domina submitted a lengthy brief, prepared written with a view toward the appellate process if necessary, arguing that the option is a “present interest” and not a future one. Only future interests are subject to the rule against perpetuities. Linda Christensen said. “During my years of practice and while training in law school, I never really expected to argue a rule against perpetuities case! When the time came, it was fun to be across the courtroom with my former professor!”
Nebraska’s handful of perpetuities cases – coming to the Supreme Court at a pace of about one per decade since statehood – provided helpful precedent. Domina and Christensen told the court the precedent “expressed clearly the Nebraska Supreme Court’s distain for the rule, and preference to find a logical way, giving rise to the intentions of the parties, to avoid its harsh application.”
The trial court agreed. It overruled the summary judgment motion, directing the case to proceed to trial. Trial, to the court alone, was held in late May. The case is now under advisement.
“The extraction technology that permits former landfill sites to have economic value as methane gas generators was largely unknown when the option agreement was negotiated in 1989,” Domina said. “Now, substantial value, properly belonging to the land owners, lies in the balance of the option agreement before the court.”
Domina and Christensen, with their clients who have found themselves in the eighth decade of life, making appearances on the witness stand to regain their family land, eagerly await the court’s judgment.
David A. Domina
Domina Law Group pc llo is a firm of trial lawyers. We specialize in complex litigation on a national basis. Our lawyers are ethical, aggressive, and committed to providing spirit and vitality to the judicial system and our client’s legal rights.