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Labenz v. Labenz

Supreme Court of Nebraska

July 24, 2015

GARY LABENZ AND SANDRA LABENZ, HUSBAND AND WIFE, APPELLANTS,
v.
LINDA LABENZ ET AL., APPELLEES

Page 89

Appeal from the District Court for Platte County: ROBERT R. STEINKE, Judge.

George H. Moyer, Jr., of Moyer & Moyer, for appellants.

Mark M. Sipple, of Sipple, Hansen, Emerson, Schumacher & Klutman, for appellees.

HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. STEPHAN, J., not participating.

OPINION

Page 90

[291 Neb. 456] Heavican, C.J.

INTRODUCTION

Following the filing of a partition of real estate action, the parties stipulated to a sale by public auction. After the sale, Gary Labenz and Sandra Labenz, husband and wife (collectively the Labenzes), sought confirmation of the sale and asked the court to approve the payment of costs, fees, and expenses. The court awarded the Labenzes' counsel $5,224 pursuant to the stipulation between the parties regarding the sale of the property. The Labenzes appeal. We affirm.

FACTUAL BACKGROUND

The real estate in question was originally owned by Alois J. Labenz and consists of 160 acres of agricultural land. The personal representative of Alois' estate, Aline M. Labenz, deeded the property to Gary; Linda L. Labenz Kerkman, now known as Linda Labenz; and Lisa S. Labenz, now known as Lisa S. Stephenson, reserving for herself a life interest in the real estate. Aline passed away on July 22, 2003, and her life interest was extinguished. Gary held the land under an oral lease which expired February 28, 2014.

Gary filed a complaint on January 23, 2014, seeking to partition the real estate. Linda and Lisa filed an answer and a motion asking the court to determine " appropriate possession" of the real estate.

On April 1, 2014, the parties entered into a joint stipulation drafted by the Labenzes' attorney, George H. Moyer, agreeing to sell the property at public auction. The stipulation provided that Moyer would attend the auction, draw up the purchase agreement, hold the earnest money, conduct the closing, and escrow the purchase price. The stipulation further provided that " [a]fter the deduction of expenses, attorney fees and costs, the net proceeds of the sale . . ." would be divided equally among Gary, Linda, and Lisa.

[291 Neb. 457] The auction was held on April 21, 2014. Gary was the winning bidder at auction, and the sale closed on May 21. The purchase price was $1.29 million. The proceeds from ...


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