Eagle Partners v. Rook , 301 Neb. 947 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/28/2018 12:09 AM CST
- 947 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947Eagle Partners, L.L.C., doing business as K eller Williams
Greater Omaha, doing business as K eller Williams
R ealty, a Nebraska limited liability company,
appellee and cross-appellant, v. Donna L. Rook,
Successor Personal R epresentative of the
Estate of Donald H. Lienemann,
appellant and cross-appellee.
___ N.W.2d ___
Filed December 21, 2018. No. S-18-058.
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 ques-
tion 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 unten-
able 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.
- 948 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 9477. 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 dem-
onstrated 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 pow-
ers 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 inter-
ests of third parties.
Appeal from the District Court for Sarpy County: William
B. Zastera and Stefanie A. M artinez, Judges. Reversed and
remanded with directions.
James T. Boler, P.C., 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.
- 949 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947Heavican, C.J.
INTRODUCTION
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 estab-
lished 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 direc-
tions to enter summary judgment in favor of the Estate.
BACKGROUND
In late October 2012, the attorney for the Estate was con-
tacted 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 pur-
chase the land, legally described as “South Half(S1/2) 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 prop-
erty for sale for $3,017,040 during the period commencing
- 950 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947November 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 unac-
ceptable. As such, the offer was rejected.
On May 23, 2016, the Estate and Bachman signed a pur-
chase 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
- 951 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947pursuant 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, directly or indirectly, out of
any claim by any broker or finder in connection with this
transaction due to their respective acts.
The sale closed on December 30.
On December 29, 2016, Keller filed a statement of claim for
its commission in the probate proceedings of the Estate pend-
ing in Sarpy County Court. In response, the Estate disallowed
the claim.
Keller then filed a complaint in Sarpy County District Court
seeking to enforce paragraphs 4 and 22 of the listing agree-
ment, and seeking $90,511.20 as the commission due on the
Cedevco offer that the Estate had rejected. Keller subsequently
filed an amended complaint to enforce paragraph 27 of the pur-
chase agreement and commission of $97,473.60, or 3 percent
of the purchase price of $3,249,120, negotiated by Bachman
and paid by Allen and Torczon.
In its answer, the Estate alleged that the district court lacked
subject matter jurisdiction of an action seeking a real estate
commission. It alleged that because such a commission was an
expense of the administration of the Estate that resulted from
a contract entered into by the personal representative of the
Estate, it should be heard by the probate court.
The parties filed cross-motions for summary judgment.
On September 26, 2017, the district court found that Keller
had produced sufficient evidence to establish a prima facie
case that by the terms of the purchase agreement, specifically
paragraph 27, Keller was entitled to a commission. The court
indicated that the Estate failed to offer sufficient evidence
to rebut Keller’s prima facie case. The district court then
granted Keller’s motion for summary judgment and denied
the Estate’s.
- 952 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947The Estate and Keller filed cross-motions to alter or amend
the opinion and order. The Estate’s motion essentially sought
a reversal of the district court’s decision, while Keller’s
motion requested that the court amend the judgment to include
an award of attorney fees, costs, and litigation expenses
incurred with regard to this action pursuant to Neb. Rev. Stat.
§ 25-824(2) (Reissue 2016). The court denied both motions.
The Estate appeals, and Keller cross-appeals.
ASSIGNMENTS OF ERROR
The Estate assigns that the district court erred in (1) find-
ing that it had subject matter jurisdiction, (2) entering sum-
mary judgment in Keller’s favor, (3) failing to grant the
Estate’s motion for summary judgment seeking dismissal of
the amended complaint, and (4) awarding Keller interest on the
judgment as an expense of administration.
On cross-appeal, Keller assigns that (1) the district court
abused its discretion in denying its request for attorney fees and
costs pursuant to § 25-824 and (2) Neb. Rev. Stat. § 25-2705(Reissue 2016) violates Neb. Const. art. I, § 6, because the stat-
ute grants a right to trial by jury for cases in the county court,
but fails to provide a right to demand a jury trial for “any mat-
ter arising under the Nebraska Probate Code.”
STANDARD OF REVIEW
[1,2] 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.1 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
1
Bixenmann v. Dickinson Land Surveyors, 294 Neb. 407, 882 N.W.2d 910(2016), modified on denial of rehearing 295 Neb. 40, 886 N.W.2d 277.
- 953 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947party the benefit of all reasonable inferences deducible from
the evidence.2
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.3
[4,5] We review a district court’s denial of a motion for
leave to amend a complaint for an abuse of discretion.4 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.5
ANALYSIS
Subject Matter Jurisdiction Based
on Statutory Interpretation.
In its first assignment of error, the Estate contends that the
district court lacked subject matter jurisdiction over Keller’s
claim because the claim arose out of a real estate commission
pursuant to the listing Keller entered into with the personal
representative. The Estate argues that the case is governed by
Neb. Rev. Stat. § 30-2482 (Reissue 2016), which provides:
(1) After notice to all interested persons or on peti-
tion of an interested person or on appropriate motion if
administration is supervised, the propriety of employ-
ment of any person by a personal representative includ-
ing any attorney, auditor, investment advisor, or other
specialized agent or assistant, the reasonableness of
the compensation of any person so employed, or the
reasonableness of the compensation determined by the
2
Id.3
Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 589 (2016).
4
See Bailey v. First Nat. Bank of Chadron, 16 Neb. App. 153, 741 N.W.2d
184 (2007). See, also, Gonzalez v. Union Pacific RR. Co., 282 Neb. 47,
803 N.W.2d 424 (2011).
5
McCullough v. McCullough, 299 Neb. 719, 910 N.W.2d 515 (2018).
- 954 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947personal representative for his or her own services, may
be reviewed by the court. Any person who has received
excessive compensation from an estate for services ren-
dered may be ordered to make appropriate refunds.
The Estate claims § 30-2482 exclusively governs probate
proceedings for review of employment and compensation of
specialized agents. Keller disputes that its claim is governed
by § 30-2482, and instead argues this claim arises under Neb.
Rev. Stat. § 30-2486 (Reissue 2016):
Claims against a decedent’s estate may be presented
as follows:
(1) The claimant may file a written statement of the
claim, in the form prescribed by rule, with the clerk of
the court. The claim is deemed presented on the filing
of the claim with the court. If a claim is not yet due,
the date when it will become due shall be stated. If the
claim is contingent or unliquidated, the nature of the
uncertainty shall be stated. If the claim is secured, the
security shall be described. Failure to describe correctly
the security, the nature of any uncertainty, and the due
date of a claim not yet due does not invalidate the pre-
sentation made.
(2) The claimant may commence a proceeding against
the personal representative in any court which has sub-
ject matter jurisdiction and the personal representative
may be subjected to jurisdiction, to obtain payment of
his or her claim against the estate, but the commence-
ment of the proceeding must occur within the time lim-
ited for presenting the claim. No presentation of claim
is required in regard to matters claimed in proceedings
against the decedent which were pending at the time of
his or her death.
(3) If a claim is presented under subsection (1), no
proceeding thereon may be commenced more than sixty
days after the personal representative has mailed a notice
of disallowance; but, in the case of a claim which is not
- 955 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947presently due or which is contingent or unliquidated, the
personal representative may consent to an extension of
the sixty-day period, or to avoid injustice the court, on
petition, may order an extension of the sixty-day period,
but in no event shall the extension run beyond the appli-
cable statute of limitations.
Keller argues the claim was properly filed in county court
pursuant to § 30-2486(1) and, upon the Estate’s § 30-2486(3)
disallowance, was properly contested in the district court.6
The Estate directs our attention to In re Estate of Wagner.7
In that case, a law firm filed a claim under § 30-2486 seek-
ing additional attorney fees following services rendered to the
estate. The county court noted that the firm’s claim was made
under § 30-2486, but did not address the propriety of that pro-
cedure, instead concluding that there was no merit to the claim.
On appeal, following affirmation of the county court’s decision
and reviews by the district court and the Nebraska Court of
Appeals, we stated:
In order to prevent confusion in the future, we hold
prospectively that all claims for attorney fees in pro-
bate matters from the date of this opinion forward shall
be reviewed by the county court pursuant to § 30-2482
and shall not be submitted as claims under the Nebraska
Probate Claims statute, § 30-2486.8
[6,7] But the language of § 30-2482 does not preclude
using the probate claims procedure established in Neb. Rev.
Stat. §§ 30-2483 through 30-2498 (Reissue 2016). Those sec-
tions deal with the presentation, allowance, and payment of
creditor’s claims.9 “Claim” as defined by the Nebraska Probate
Code includes “liabilities of the decedent or protected person
6
See Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312(1990).
7
In re Estate of Wagner, 253 Neb. 498, 571 N.W.2d 76 (1997).
8
Id. at 502, 571 N.W.2d at 79.
9
Kerrigan & Line v. Foote, 5 Neb. App. 397, 558 N.W.2d 837 (1997).
- 956 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947whether arising in contract, in tort or otherwise, and liabilities
of the estate which arise at or after the death of the decedent
or after the appointment of a conservator, including funeral
expenses and expenses of administration.”10 We have tradition-
ally held that in probate proceedings, attorney fees are admin-
istration expenses.11 Real estate brokers, like attorneys, must
be licensed in the State of Nebraska. Those seeking to act as
brokers must meet the qualifications listed in Neb. Rev. Stat.
§ 81-885.13 (Supp. 2017) and further conform to the require-
ments established by the Legislature. Like attorney fees, bro-
ker’s fees arising from the sale of real estate held in the course
of probate proceedings are similarly an administration expense.
Therefore, based on a plain reading of the relevant statutes,
it appears that such administrative expenses are claims which
may be brought under the probate claims procedure.
The Nebraska probate statutes are derivative of the Uniform
Probate Code, which was generally adopted by the Legislature
in 1974 and became effective in the state on January 1, 1977.
The comment to § 3-10512 of the Uniform Probate Code indi-
cates that the responsibility for hearing and deciding formal
petitions is to be assigned to the court of general jurisdiction of
each county or district, further noting that there is “little basis
for objection to the broad statement of concurrent jurisdiction
of [§ 3-105].”
As adopted by the Nebraska Legislature, § 3-105, now Neb.
Rev. Stat. § 30-2405 (Reissue 2016), was stripped of restric-
tive language regarding subject matter jurisdiction. Section
30-2405 was designed to give probate courts of limited juris-
diction broad concurrent jurisdiction with courts of general
jurisdiction. We believe that is what the Nebraska Legislature
10
Neb. Rev. Stat. § 30-2209(4) (Reissue 2016) (emphasis supplied).
11
See In re Estate of Reimer, 229 Neb. 406, 427 N.W.2d 293 (1988). See,
also, In re Estate of Chrisp, 276 Neb. 966, 759 N.W.2d 87 (2009); J.R.
Simplot Co. v. Jelinek, 275 Neb. 548, 748 N.W.2d 17 (2008).
12
Unif. Probate Code § 3-105, comment, 8 (part II) U.L.A. 33-34 (2013).
- 957 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947did in adopting Nebraska’s version of the Uniform Probate
Code. In other words, §§ 30-2405 and 30-2482 are part of
a scheme to give jurisdiction for the enforcement of probate
claims to the county court, and that jurisdiction is concur-
rent with the jurisdiction of the district court to enforce such
claims. To the extent that In re Estate of Wagner holds differ-
ently, it is dicta and disapproved.
In this case, Keller could have pursued the enforcement of
its claim in either the district court or the county court. Keller
chose the district court. The district court had jurisdiction to
decide the validity of Keller’s claim.
Constitutional Challenge to County
Court’s Exclusive Jurisdiction.
For the first time on appeal, Keller raises two constitutional
challenges to the Estate’s argument that § 30-2482 provides
an exclusive grant of jurisdiction to the county court over
its chancery and common-law claims. As we have found that
Keller was entitled to pursue its claim in the district court, we
need not address Keller’s constitutional challenges.
Summary Judgment.
The Estate assigns that the district court erred in granting
summary judgment in favor of Keller and in denying summary
judgment in the Estate’s favor. We agree.
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 ben-
efit of all reasonable inferences deducible from the evidence.
[8-10] When a contract is unambiguous, the intentions of
the parties must be determined from the contract itself.13 A
contract is ambiguous when a word, phrase, or provision in
the contract has, or is susceptible of, at least two reasonable
13
Properties Inv. Group v. Applied Communications, 242 Neb. 464, 495
N.W.2d 483 (1993).
- 958 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947but conflicting interpretations or meanings.14 Further, 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.15
We turn first to the language of the listing and purchase
agreements. The listing gave Carlson the right to list the
property in question. If Carlson were to find a ready, willing,
and able buyer for the property, she would be entitled to a
5-percent commission if the sale was made to a represented
purchaser and a 3-percent commission if it was not. But
paragraph 23 of the listing provided 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.”
In the end, the property in question was sold to the “No
Commission Buyers” identified in the listing. The purchase
agreement for that sale, which was prepared by the pur-
chasers, provided that the Estate “represent[ed] that . . .
Carlson of Keller [was] representing Seller for this transac-
tion. Purchaser is not represented by a real estate broker . . . .”
Paragraph 27 of the purchase agreement stated that Carlson
should be paid pursuant to a separate agreement. Though
“separate agreement” is not explicitly defined, the record indi-
cates that it could only mean the listing between the Estate
and Keller.
The only reasonable reading of paragraph 27 of the pur-
chase agreement in conjunction with the listing demonstrates
that under paragraph 27, Keller is not entitled to a commis-
sion according to the terms of the listing. Under paragraphs
4 and 22, the Estate agreed to pay Keller a 3-percent com-
mission if the purchaser was not represented in the purchase
and a 5-­percent commission if the purchaser was represented.
14
In re Estate of Balvin, 295 Neb. 346, 888 N.W.2d 499 (2016).
15
Kropp v. Grand Island Pub. Sch. Dist. No. 2, 246 Neb. 138, 517 N.W.2d
113 (1994).
- 959 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947Specifically, the handwritten portion of paragraph 22 states,
“Or 3% if seller agent broker [Carlson] is the only broker
represent[ing] both seller & buyer.”
However, paragraph 23, executed contemporaneously with
the listing, states in relevant part, “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.” Just above the
quoted language, the names “John Q. Bachman, Trustee”; “John
C. Allen”; and “Jerry Torczon” are listed and identified as “No
Commission Buyers.” Reading these terms together, we find
that the Estate and Bachman agreed that Keller would be paid
according to the terms of the listing. The terms of the listing in
turn provide that Keller, under the circumstances, is not entitled
to payment.
Keller makes several arguments suggesting that contrary to
the plain language of these agreements, it is entitled to a com-
mission. Keller first contends that paragraph 27 of the purchase
agreement operated as a waiver of paragraph 23, entitling them
to a commission under paragraphs 4 and 22.
[11-14] A waiver is a voluntary and intentional relinquish-
ment of a known right, privilege, or claim, and may be dem-
onstrated by or inferred from a person’s conduct.16 Ordinarily,
to establish a waiver of a legal right, there must be a clear,
unequivocal, and decisive act of a party showing such a pur-
pose, or acts amounting to an estoppel on his or her part.17 A
party may waive a written contract in whole or in part, either
directly or inferentially.18 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.19
16
D & S Realty v. Markel Ins. Co., 280 Neb. 567, 789 N.W.2d 1 (2010).
17
Id.18
Id.19
Id.- 960 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947Based on paragraph 27 of the purchase agreement, we can-
not conclude that the Estate made a clear, unequivocal, and
decisive act demonstrating an intent to waive paragraph 23
of the listing which identified the “No Commission Buyers.”
Keller’s waiver argument is without merit.
In the alternative, Keller argues, it is a third-party benefi-
ciary under the purchase agreement. Keller directs us to our
decision in Mid-Continent Properties, Inc. v. Pflug.20 In Pflug,
we determined that although there was not a direct contract
between a broker and landowners as contemplated by Neb.
Rev. Stat. § 36-107 (Reissue 1974), a contract in which the
broker is a third-party beneficiary did exist. In Pflug, the bro-
ker entered into an oral agreement for payment of a commis-
sion upon the sale of the landowners’ property. The landowners
entered into a written sales agreement that contained a payment
provision for the broker’s commission. When the commission
was not paid, the broker initiated an action as a third-party
beneficiary under the sales agreement.
Assuming arguendo that the court below relied on the theory
that Keller was a third-party beneficiary, we turn to the provi-
sions of the respective agreements and find that when read
together, the purchase agreement and the listing are unam-
biguous in directing that no commission is due to Keller under
paragraph 23. Therefore, assuming that the sale of the land
triggered a commission being paid to Keller, Keller is not
entitled to the commission because under the clear and unam-
biguous terms of paragraph 23, Keller is not entitled to a com-
mission upon the sale of the land to Bachman or the other “No
Commission Buyers.”
[15] Keller also argues that “where there are two descrip-
tions in an instrument, one of which describes the subject
matter with reasonable certainty and the other that is incorrect
with respect to certain additional details, the incorrect portion
20
Mid-Continent Properties, Inc. v. Pflug, 197 Neb. 429, 249 N.W.2d 476(1977).
- 961 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947of the description will be rejected as surplusage.”21 However,
the authority upon which Keller relies further observes that “a
court ordinarily must use construction that gives effect to each
part of a contract, and reject constructions resulting in a deter-
mination that a word or term is surplusage.”22
The contract is unambiguous in this case, and Keller is not
entitled to a commission under paragraph 23. Therefore, we
find that the court below erred in granting summary judg-
ment in favor of Keller and remand the cause to the district
court with instructions to enter summary judgment in favor of
the Estate.
Keller Seeks Equitable Estoppel.
Keller attempts to argue that in conducting negotiations for
the sale of the property, the Estate misrepresented its business
relationship with Keller in order to gain an advantage in nego-
tiations with Bachman. Keller refers to the Estate’s negotiation
tactics as a form of fraudulent “sharp dealing.”23 Keller there-
fore contends that the Estate’s “sharp dealing” with Bachman
should be equitably estopped by enforcing the payment provi-
sion in Keller’s favor. However, Keller lacks standing to make
such an argument.
[16,17] Standing requires that a litigant have such a personal
stake in the outcome of a controversy as to warrant invoca-
tion of a court’s jurisdiction and justify exercise of the court’s
remedial powers on the litigant’s behalf.24 Thus, 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.25 Keller has not suffered any injury as a result of the
21
See 17A C.J.S. Contracts § 418 at 310 (2011).
22
See id.
23
Brief for appellee at 34.
24
Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788
N.W.2d 252 (2010).
25
Id.- 962 -
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
EAGLE PARTNERS v. ROOK
Cite as 301 Neb. 947Estate’s negotiation tactics that Keller characterizes as fraudu-
lent “sharp dealing.”
Award of Interest and Attorney Fees.
Keller contends on cross-appeal that the district court erred
in denying its motion for attorney fees and prejudgment inter-
est. Because we find that the summary judgment entered in
Keller’s favor was entered in error, we need not address this
assignment of error further.
CONCLUSION
The district court erred in granting summary judgment in
favor of Keller and in denying summary judgment in favor
of the Estate. We therefore reverse the decision of the district
court and remand the cause with directions to enter summary
judgment in favor of the Estate.
R eversed and remanded with directions.