Eagle Partners, L.L.C., doing business as Keller Williams Greater Omaha, doing business as Keller Williams Realty, a Nebraska limited liability company, appellee and cross-appellant,
Donna L. Rook, Successor Personal Representative of the Estate of Donald H. Lienemann, APPELLANT AND CROSS-APPELLEE.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant 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
___. In reviewing a summary judgment, an appellate 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 inferences deducible from the
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, for which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
Pleadings: Appeal and Error. An appellate
court reviews a district court's denial of a motion for
leave to amend a complaint for an abuse of discretion.
Judgments: Words and Phrases. A judicial
abuse of discretion requires that the reasons or rulings of
the trial court be clearly untenable insofar as they unfairly
deprive a litigant of a substantial right and a just result.
Decedents' Estates: Attorney Fees. In
probate proceedings, attorney fees are administration
Neb. 948] 7. Decedents' Estates:
Claims: Costs: Fees. Administrative expenses are
claims which may be brought under the probate claims
Contracts: Intent. When a contract is
unambiguous, the intentions of the parties must be determined
from the contract itself.
Contracts: Words and Phrases. A contract is
ambiguous when a word, phrase, or provision in the contract
has, or is susceptible of, at least two reasonable but
conflicting interpretations or meanings.
Contracts. A court is not free to rewrite a
contract or to speculate as to terms of the contract which
the parties have not seen fit to include.
Waiver: Words and Phrases. A waiver is a
voluntary and intentional relinquishment of a known right,
privilege, or claim, and may be demonstrated by or inferred
from a person's conduct.
Waiver: Estoppel. Ordinarily, to establish a
waiver of a legal right, there must be a clear, unequivocal,
and decisive act of a party showing such a purpose, or acts
amounting to an estoppel on his or her part.
Contracts: Waiver. A party may waive a
written contract in whole or in part, either directly or
Contracts: Waiver: Proof. A party may prove
the waiver by (1) a party's express declarations
manifesting the intent not to claim an advantage or (2) a
party's neglecting and failing to act so as to induce the
belief that it intended to waive.
Contracts: Intent. A court ordinarily must
use construction that gives effect to each part of a
contract, and reject constructions resulting in a
determination that a word or term is surplusage.
Standing: Jurisdiction. Standing requires
that a litigant have such a personal stake in the outcome of
a controversy as to warrant invocation of a court's
jurisdiction and justify exercise of the court's remedial
powers on the litigant's behalf.
Claims: Parties. Generally, a litigant must
assert the litigant's own rights and interests, and
cannot rest a claim on the legal rights or interests of third
from the District Court for Sarpy County: William B. Zastera
and Stefanie A. Martinez, Judges.
T. Boler, PC, L.L.O., for appellant.
Patrick Betterman, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
Neb. 949] HEAVICAN, C.J.
Partners, L.L.C., doing business as Keller Williams Greater
Omaha, doing business as Keller Williams Realty, a Nebraska
limited liability company (Keller), filed suit against Donna
L. Rook, successor personal representative of the estate of
Donald H. Lienemann (the Estate), in the district court for
Sarpy County, Nebraska. The district court granted summary
judgment in Keller's favor, finding that Keller had
established that the Estate breached a contract involving the
sale of real property.
district court awarded Keller damages in the amount of $97,
473.60, plus prejudgment interest at the legal rate of 12
percent per annum from and after December 30, 2016. We
removed this case to our docket pursuant to our authority
under Neb. Rev. Stat. § 24-1106(3) (Supp. 2017). We
reverse the decision of the district court and remand the
cause with directions to enter summary judgment in favor of
October 2012, the attorney for the Estate was contacted by
John Q. Bachman offering to purchase approximately 77 acres
of land owned by the Estate on behalf of his clients John C.
Allen and Jerry Torczon. Bachman sought to purchase the land,
legally described as "South Half(Sl/2) of the Southeast
Quarter (SE1/4), except ROW in 2-13- 12 (77.36 acres),
commonly known as 7406 Capehart Road, Papillion, NE
68046." Ultimately, the Estate and Bachman were unable
to close on the sale due to a condition allowing Allen and
Torczon to "terminate this Agreement if . . . Purchaser
has been unable to move the Property into the Papillion-La
Vista School District from the South Sarpy School District
November 17, 2014, the Estate and Keller entered into a
uniform commercial listing contract for sale with an attached
one-page addendum (listing), allowing Keller to list and
offer the property for sale. Keller was to list and offer the
property for sale for $3, 017, 040 during the period
commencing [301 Neb. 950] November 17, 2014, and ending
November 17, 2015. The addendum to the November 17, 2014,
listing specified, under paragraph 23, that Bachman, Allen,
or Torczon were "No Commission Buyers," further
indicating that "Seller shall not be obligated to pay
Broker any sales commission on account of a sale made to one
or more of these prospective buyers." Pursuant to a
January 13, 2016, addendum, the expiration of the listing was
extended to January 1, 2017.
March 20, 2015, Bachman submitted to the Estate's
attorney a second written offer for the property, again on
behalf of Allen and Torczon. However, the offer contained the
same previously failed condition that the school district be
changed. As such, the offer was rejected by the Estate.
April 11, 2016, Bachman submitted a third offer directly to
the Estate on behalf of his clients, this time for $42, 000
per acre and with no school district condition, but that
offer expired without being accepted. On or about April 14,
however, the attorney for the Estate told Debra Carlson,
Keller's agent, about this offer and recommended that
Keller represent any potential purchasers. The attorney
further instructed Carlson that any offer presented by Keller
must not contain conditions requiring redistricting the
property's school district.
April 27, 2016, Keller submitted an offer on behalf of
Cedevco, Inc., to purchase the property for $3, 017, 040.
Contained in the offer were several conditions, including one
with respect to the school district, which the Estate found
unacceptable. As such, the offer was rejected.
23, 2016, the Estate and Bachman signed a purchase agreement
for the sale of the property. The purchase agreement,
prepared by Bachman, contained a provision in paragraph 27
concerning brokers. Paragraph 27 states:
Brokers. Seller represents that . . . Carlson of
Keller . . . is representing Seller for this transaction.
Purchaser is not represented by a real estate broker and . .
. Carlson of Keller . . . shall be entitled to the real
estate commission [301 Neb. 951] pursuant to a separate
agreement with Seller. Each party represents to the other
that no other broker, finder or intermediary is involved in
the purchase and sale of the Property. Each party hereby
indemnifies and agrees to hold the other party harmless from
and against any and all costs arising or resulting, ...