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Eagle Partners, L.L.C. v. Rook

Supreme Court of Nebraska

December 21, 2018

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.

         1. 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 of law.

         2. ___: ___. 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 evidence.

         3. 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 below.

         4. 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.

         5. 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.

         6. Decedents' Estates: Attorney Fees. In probate proceedings, attorney fees are administration expenses.

         [301 Neb. 948] 7. Decedents' Estates: Claims: Costs: Fees. Administrative expenses are claims which may be brought under the probate claims procedure.

         8. Contracts: Intent. When a contract is unambiguous, the intentions of the parties must be determined from the contract itself.

         9. 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.

         10. 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.

         11. 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.

         12. 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.

         13. Contracts: Waiver. A party may waive a written contract in whole or in part, either directly or inferentially.

         14. 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.

         15. 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.

         16. 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.

         17. 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 parties.

          Appeal from the District Court for Sarpy County: William B. Zastera and Stefanie A. Martinez, Judges.

          James T. Boler, PC, L.L.O., for appellant.

          W. Patrick Betterman, P.C., L.L.O., for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

         [301 Neb. 949] HEAVICAN, C.J.


         Eagle 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.

         The 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 the Estate.


         In late 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 ....''

         On 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.

         On 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.

         On 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.

         On 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.

         On May 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, ...

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