- 947 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

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, v. Donna L. Rook, 

Successor Personal Representative 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 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

12/28/2018 08:09 AM CST
- 948 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

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. 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

Heavican, 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 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.

BACKGROUND

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(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 property for sale for $3,017,040 during the period commencing 
- 950 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

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 
- 951 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

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, 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 pending 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 agreement, 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 purchase 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

The 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) finding that it had subject matter jurisdiction, (2) entering summary 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 statute 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 matter 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 appellate 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

party 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 independent 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 petition of an interested person or on appropriate motion if 

administration is supervised, the propriety of employment of any person by a personal representative including 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

personal 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 rendered 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 presentation made.

(2) The claimant may commence a proceeding against 

the personal representative in any court which has subject matter jurisdiction and the personal representative 

may be subjected to jurisdiction, to obtain payment of 

his or her claim against the estate, but the commencement of the proceeding must occur within the time limited 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

presently 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 applicable 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 seeking 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 procedure, 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 probate 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 sections 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

whether 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 traditionally held that in probate proceedings, attorney fees are administration 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 requirements established by the Legislature. Like attorney fees, broker’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 indicates 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 restrictive language regarding subject matter jurisdiction. Section 

30-2405 was designed to give probate courts of limited jurisdiction 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

did 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 concurrent with the jurisdiction of the district court to enforce such 

claims. To the extent that In re Estate of Wagner holds differently, 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 benefit 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

but 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 purchasers, provided that the Estate “represent[ed] that . . . 

Carlson of Keller [was] representing Seller for this transaction. 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 indicates that it could only mean the listing between the Estate 

and Keller.

The only reasonable reading of paragraph 27 of the purchase agreement in conjunction with the listing demonstrates 

that under paragraph 27, Keller is not entitled to a commission according to the terms of the listing. Under paragraphs 

4 and 22, the Estate agreed to pay Keller a 3-percent commission 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

Specifically, 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 commission. 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 relinquishment of a known right, privilege, or claim, and may be demonstrated 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 purpose, 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

Based on paragraph 27 of the purchase agreement, we cannot 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 beneficiary 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 broker entered into an oral agreement for payment of a commission 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 provisions of the respective agreements and find that when read 

together, the purchase agreement and the listing are unambiguous 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 unambiguous terms of paragraph 23, Keller is not entitled to a commission upon the sale of the land to Bachman or the other “No 

Commission Buyers.”

[15] Keller also argues that “where there are two descriptions 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

of 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 determination 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 judgment 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 negotiations with Bachman. Keller refers to the Estate’s negotiation 

tactics as a form of fraudulent “sharp dealing.”23 Keller therefore contends that the Estate’s “sharp dealing” with Bachman 

should be equitably estopped by enforcing the payment provision 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 invocation 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 Advance Sheets

301 Nebraska Reports

EAGLE PARTNERS v. ROOK

Cite as 301 Neb. 947

Estate’s negotiation tactics that Keller characterizes as fraudulent “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 interest. 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.

Reversed and remanded with directions.