Eagle Partners v. Rook, 921 N.W.2d 98

Background

Keller (Eagle Partners, LLC) had a listing agreement with the Estate (personal representative of Donald Lienemann) to sell ~77 acres; the listing set commission rates and identified John Q. Bachman, John C. Allen, and Jerry Torczon as “No Commission Buyers,” stating Seller shall not be obligated to pay Broker for sales to those buyers.
A purchase agreement (prepared by purchasers) was later executed between the Estate and Bachman/clients; paragraph 27 acknowledged Keller/Carlson as Seller’s representative and provided payment "pursuant to a separate agreement."
The sale closed to Allen and Torczon; Keller filed a probate claim for commission which the personal representative disallowed, then sued in district court seeking enforcement of the purchase agreement and the listing (seeking ~3% commission).
District court granted summary judgment to Keller, awarding commission and prejudgment interest; the Estate appealed to the Nebraska Supreme Court.
The Supreme Court held the district court had jurisdiction but reversed on the merits, finding the listing’s “No Commission Buyers” clause barred Keller’s commission and directing entry of summary judgment for the Estate.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court had subject-matter jurisdiction over Keller’s commission claim	Keller: probate statutes allow presentation of claims to county court but claim may be litigated in district court; district court has concurrent jurisdiction	Estate: commission is an administration expense governed by §30-2482 and thus belongs in county probate court	Court: district court had concurrent jurisdiction; Keller could pursue claim in district court
Whether Keller was entitled to commission under the listing and purchase agreement	Keller: paragraph 27 of purchase agreement and buyer acknowledgement waived listing restrictions; Keller also asserted third-party beneficiary status	Estate: listing unambiguously identified buyers as "No Commission Buyers," so no commission due under listing; paragraph 27 refers to separate listing agreement	Court: Contracts read together unambiguously; listing’s paragraph 23 bars commission—no waiver shown; judgment for Estate
Whether Estate waived paragraph 23 or should be estopped	Keller: purchase agreement/paragraph 27 evidenced waiver or equitable estoppel due to Estate’s negotiation conduct	Estate: no clear, unequivocal act of waiver; Keller lacks standing to assert third-party harms from negotiations	Court: waiver requires clear act; none shown; equitable estoppel claim fails for lack of standing and injury
Whether Keller was entitled to attorney fees and interest	Keller: district court should award fees/interest on cross-appeal	Estate: (opposed)	Court: did not reach merits because summary judgment for Keller was reversed; lower-court award vacated

Key Cases Cited

Bixenmann v. Dickinson Land Surveyors, 294 Neb. 407 (summary-judgment standard and appellate review)
Hargesheimer v. Gale, 294 Neb. 123 (statutory interpretation as question of law)
In re Estate of Wagner, 253 Neb. 498 (probate claims procedure; attorney-fee claims in probate)
In re Estate of Reimer, 229 Neb. 406 (attorney fees as administration expenses)
In re Estate of Chrisp, 276 Neb. 966 (attorney fees in probate context)
J.R. Simplot Co. v. Jelinek, 275 Neb. 548 (treatment of probate claims)
Properties Inv. Group v. Applied Communications, 242 Neb. 464 (contract interpretation principles)
In re Estate of Balvin, 295 Neb. 346 (contract ambiguity rules)
Kropp v. Grand Island Pub. Sch. Dist. No. 2, 246 Neb. 138 (contract construction; no rewriting contracts)
Mid-Continent Properties, Inc. v. Pflug, 197 Neb. 429 (broker as third-party beneficiary theory)
D & S Realty v. Markel Ins. Co., 280 Neb. 567 (waiver doctrine and standards)
Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533 (standing principles)
McCullough v. McCullough, 299 Neb. 719 (abuse-of-discretion standard)
Holdrege Co-op Assn. v. Wilson, 236 Neb. 541 (probate claims procedure precedent)
Kerrigan & Line v. Foote, 5 Neb. App. 397 (probate-claims statutory context)