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291 Nebraska Reports

LABENZ v. LABENZ

Cite as 291 Neb. 455

Gary Labenz and Sandra Labenz, 

husband and wife, appellants, v. 

Linda Labenz et al., appellees.

___ N.W.2d ___

Filed July 24, 2015. No. S-14-833.

1. Partition: Equity: Appeal and Error. A partition action is an action in 

equity and reviewable by an appellate court de novo on the record.

2. Contracts: Appeal and Error. The construction of a contract is a question of law, and is reviewed de novo.

3. Attorney Fees: Appeal and Error. An appellate court reviews the 

amount of an award of attorney fees for an abuse of discretion.

4. Partition: Attorney Fees. Attorney fees are generally permissible in a 

partition action.

5. Attorney Fees. Attorney fees and expenses may be recovered only 

where provided for by statute or when a recognized and accepted uniform course of procedure has been to allow recovery of attorney fees.

6. Contracts. A contract must receive a reasonable construction, and a 

court must construe it as a whole and, if possible, give effect to every 

part of the contract.

7. ____. Whatever the construction of a particular clause of a contract, 

standing alone, may be, it must be read in connection with other clauses.

8. ____. When there is a question about the meaning of a contract’s language, the contract will be construed against the party preparing it.

Appeal from the District Court for Platte County: Robert R. 

Steinke, Judge. Affirmed.

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

Mark M. Sipple, of Sipple, Hansen, Emerson, Schumacher 

& Klutman, for appellees.
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291 Nebraska Reports

LABENZ v. LABENZ

Cite as 291 Neb. 455

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, and Cassel, JJ.

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.
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LABENZ v. LABENZ

Cite as 291 Neb. 455

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 the sale 

were deposited into Moyer’s trust account.

On May 30, 2014, Moyer sought confirmation of the sale 

by the district court. On that same day, Moyer also sought the 

court’s permission to distribute the proceeds of the sale, subject 

to the payment of “costs, expenses, commissions and fees,” 

which Moyer asked the court to determine. On July 1, Moyer 

filed a motion on the Labenzes’ behalf seeking a judgment of 

partition on the pleadings or, in the alternative, based upon the 

joint stipulation. By the date of this hearing, the primary issue 

presented was the appropriate amount of attorney fees to be 

paid to Moyer.

The district court denied the motion for partition on the 

pleadings, concluding that the sale was conducted via public 

auction and was complete and that thus, there was no real 

estate to partition. But the district court noted that some fees 

were owed under the terms of the stipulation. Following an 

evidentiary hearing, the district court read paragraphs 5 and 

7 of the stipulation together and awarded Moyer fees in the 

amount of $5,224.

The Labenzes appeal.

ASSIGNMENTS OF ERROR

The Labenzes assign, restated and consolidated, that the district court erred in (1) concluding that attorney fees were not 

owed under equitable principles or under the partition statutes, 

(2) limiting fees to those services outlined in paragraph 5 of the 

stipulation, and (3) not awarding Moyer the full amount of the 

fees he had earned as calculated on an hourly basis.

STANDARD OF REVIEW

[1] A partition action is an action in equity and reviewable 

by an appellate court de novo on the record.1

1 Channer v. Cuming, 270 Neb. 231, 699 N.W.2d 831 (2005).
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LABENZ v. LABENZ

Cite as 291 Neb. 455

[2] The construction of a contract is a question of law, and 

is reviewed de novo.2

[3] An appellate court reviews the amount of an award of 

attorney fees for an abuse of discretion.3

ANALYSIS

Fees Under Statute and Case Law.

In the Labenzes’ first assignment of error, they contend that 

the district court erred in not awarding their counsel fees under 

either the partition statutes or equitable principles.

[4] This action began as one for partition. Attorney fees 

are generally permissible under state statutes and case law4

under those statutes. In particular, the recovery of such fees 

is permitted by Neb. Rev. Stat. § 25-21,108 (Reissue 2008), 

which provides:

If, in the proceedings in partition, judgment shall 

be entered directing partition, as provided in section 

25-2179, the court shall, after partition or after the confirmation of the sale and the conveyance by the referee, 

determine a reasonable amount of attorney’s fees to be 

awarded, which amount shall be taxed as costs in the proceedings. If the shares confirmed by such judgment and 

the existence of all encumbrances of which the plaintiff 

had actual or constructive notice were accurately pleaded 

in the original complaint of the plaintiff, such attorney’s 

fees shall be awarded entirely to the attorney for the 

plaintiff; otherwise, the court shall order such fees for 

the attorneys to be divided among such of the attorneys 

of record in the proceedings as have filed pleadings upon 

which any of the findings in the judgment of partition 

2 See Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).

3 See In re Guardianship of Brydon P., 286 Neb. 661, 838 N.W.2d 262 

(2013).

4 See, e.g., Mabry v. Mudd, 132 Neb. 610, 272 N.W. 574 (1937); Harper v. 

Harper, 89 Neb. 269, 131 N.W. 218 (1911).
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LABENZ v. LABENZ

Cite as 291 Neb. 455

are based. The court shall also determine and tax as costs 

a reasonable fee for the referee.

The Labenzes argue that their counsel is entitled to an award 

of attorney fees under our case law and under § 25-21,108. 

We disagree.

While this case began as a partition action, that action 

effectively ended when the parties decided to sell the land at 

public auction. In this case, no referee was ever appointed. No 

referee’s report was ever issued. The court did not monitor the 

sale of the property. In certain partition actions, the award of 

attorney fees is permitted. But this was not a completed action 

for partition. We decline to expand the allowance of attorney 

fees to the scenario presented by these facts.

[5] The Labenzes also argue that the equities of the situation and the common fund doctrine support their assertion 

that their counsel is entitled to an award of fees. We find this 

argument misplaced. Attorney fees and expenses may be recovered only where provided for by statute or when a recognized 

and accepted uniform course of procedure has been to allow 

recovery of attorney fees.5 Other than their arguments under 

the partition statute, which we have rejected, the Labenzes 

point to no statute or uniform course of practice which would 

permit the allowance of fees in this situation. Simply arguing 

that something is unfair does not allow a court to invoke its 

equitable powers.

The Labenzes’ first assignment of error is without merit.

Fees Under Joint Stipulation.

The Labenzes also argue that the district court erred in 

reading paragraphs 5 and 7 of the joint stipulation together 

in order to limit the fees awarded to Moyer. They contend there is nothing in the stipulation that limits the fee 

given under paragraph 7 to the work mentioned in paragraph 

5. We conclude that the district court correctly interpreted 

the stipulation.

5 Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014).
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LABENZ v. LABENZ

Cite as 291 Neb. 455

This case is a procedural oddity, to be sure. It began as a 

partition action, which arises in equity and is reviewed de 

novo, and ended as a contract interpretation action, which is 

also reviewed de novo, but presents a legal question. On these 

facts, we are asked to interpret the language of the parties’ joint 

stipulation and we conclude that such is akin to the interpretation of a contract.

[6-8] We have said that a contract must receive a reasonable 

construction and that a court must construe it as a whole and, 

if possible, give effect to every part of the contract.6 Whatever 

the construction of a particular clause of a contract, standing alone, may be, it must be read in connection with other 

clauses.7 When there is a question about the meaning of a 

contract’s language, the contract will be construed against the 

party preparing it.8

The stipulation, which was drafted by Moyer, the Labenzes’ 

counsel, allowed for the payment of attorney fees and costs. 

It also explained what responsibilities counsel would have in 

connection with the auction and subsequent sale. It is reasonable to interpret this stipulation such that the fees and costs 

envisioned in paragraph 7 are related to those duties set forth 

in paragraph 5. In our de novo review, we agree with the district court’s interpretation of the stipulation.

Finally, we note that the amount of fees awarded to the 

Labenzes was not an abuse of the district court’s discretion. In 

fact, the Labenzes concede that the amount awarded was correct insofar as it correlated to their counsel’s responsibilities 

under paragraph 5 of the stipulation.

The Labenzes’ second and third assignments of error are 

without merit.

6 Hearst-Argyle Prop. v. Entrex Comm. Servs., 279 Neb. 468, 778 N.W.2d 

465 (2010).

7 Id.

8 McKinnis Roofing v. Hicks, 282 Neb. 34, 803 N.W.2d 414 (2011).
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LABENZ v. LABENZ

Cite as 291 Neb. 455

CONCLUSION

The district court was correct in concluding that attorney fees were not available under our statutory or case law 

regarding partition. The district court’s interpretation of the 

stipulation to limit fees to those incurred in connection with 

the responsibilities listed in the stipulation was also not in 

error, and the amount of the fees actually awarded was not 

otherwise an abuse of discretion. The decision of the district 

court is affirmed.

Affirmed.

Stephan, J., not participating.