Arizona Motor Speedway, Inc. v. Hoppe, S-91-590

• Decision Date: 15 October 1993
• Docket Number: No. S-91-590,S-91-590
• Citation: 244 Neb. 316,506 N.W.2d 699
• Parties: ARIZONA MOTOR SPEEDWAY, INC., an Arizona Corporation, Appellant, v. Ward F. HOPPE, Trustee, and Donald Chadd, Appellees.
• Court: Nebraska Supreme Court

Page 699

506 N.W.2d 699

244 Neb. 316

ARIZONA MOTOR SPEEDWAY, INC., an Arizona Corporation, Appellant, v. Ward F. HOPPE, Trustee, and Donald Chadd, Appellees.

No. S-91-590.

Supreme Court of Nebraska.

Oct. 15, 1993.

Syllabus by the Court

1. Statutes: Legislature: Intent: Appeal and Error. When asked to interpret a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

2. Statutes: Legislature: Intent. As a series or collection of statutes pertaining to a certain subject matter, statutory components of an act, which are in pari materia, may be conjunctively considered and construed to determine the intent of the Legislature so that different provisions of the act are consistent, harmonious, and sensible.

3. Security Interests: Trusts: Deeds: Fees: Words and Phrases. Under Neb.Rev.Stat. § 76-1011 (Reissue 1990) of the Nebraska Trust Deeds Act, a fee "actually incurred" means a fee that is based on services rendered.

4. Security Interests: Trusts: Deeds: Liens. Under the provisions of Neb.Rev.Stat. § 76-1011 (Reissue 1990) of the Nebraska Trust Deeds Act, a trustee has a duty to disburse proceeds to junior lienholders according to priority and, therefore, holds sale proceeds in trust for distribution to lienholders whose interests are junior to the interest of the beneficiary designated in the deed of trust.

Timothy C. Phillips, of Hecht, Sweet, Morrow, Poppe & Otte, P.C., Lincoln, for appellant.

Daniel E. Wherry, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

SHANAHAN, Justice.

Arizona Motor Speedway, Inc. (Speedway), brought an action for a declaratory judgment, see Neb.Rev.Stat. § 25-21,149 et seq. (Reissue 1989 & Cum.Supp.1992), and requested an accounting of proceeds obtained from a sale pursuant to the Nebraska Trust Deeds Act, Neb.Rev.Stat. § 76-1001 et seq. (Reissue 1990 & Cum.Supp.1992). The district court for Lancaster County granted Ward F. Hoppe, trustee, summary judgment on the basis that the trustee's distribution of funds, including the trustee's claimed fee, was correct as a matter of law so that an accounting was unnecessary. Speedway appeals.

STANDARD OF REVIEW

Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Neb.Rev.Stat. § 25-1332 (Reissue 1989). See, also, Sports Courts of Omaha v. Meginnis, 242 Neb. 768, 497 N.W.2d 38 (1993); Anderson v. Service Merchandise Co., 240 Neb. 873, 485 N.W.2d 170 (1992); Union Pacific RR. Co. v. Kaiser Ag. Chem. Co., 229 Neb. 160, 425 N.W.2d 872 (1988).

"Interpreting a statute presents a question of law for judicial determination." Sports Courts of Omaha v. Meginnis, 242 Neb. at 770, 497 N.W.2d at 40. Accord Quality Equip. Co. v. Transamerica Ins. Co., 243 Neb. 786, 502 N.W.2d 488 (1993). "Regarding a question of law, an appellate court has an obligation to reach a conclusion independent from a trial court's conclusion in a judgment under review." Huffman v. Huffman, 232 Neb. 742, 748, 441 N.W.2d 899, 904 (1989). Accord, Young v. Dodge Cty. Bd. of Supervisors, 242 Neb. 1, 493 N.W.2d 160 (1992); Maack v. School Dist. of Lincoln, 241 Neb. 847, 491 N.W.2d 341 (1992).

BACKGROUND

Hoppe is the trustee and Cornhusker Bank is the beneficiary under three trust deeds recorded in Cass County on three parcels of real estate. The trust deed for parcel 1 was recorded on September 10, 1985, and the trust deed for parcel 2 was recorded on September 16. Each of those trust deeds on the two parcels was dated September 9 and secured the "payment of the debt to the Beneficiary evidenced by the Trustor's noted [sic] of this same date in the principal sum of $115,000.00 together with interest...." On January 31, 1986, Speedway filed its mortgage on parcel 1. The trust deed for parcel 3 was dated April 27, 1987, was recorded on April 29, and stated that the deed secured "payment of the debt to the Beneficiary evidenced by the Trustor's note of this same date in the principal sum of $20,000.00 together with interest...." Donald Chadd obtained a judgment lien in the amount of $60,971 on June 12, 1987, against parcels 2 and 3.

Each of the three recorded deeds of trust contained a provision concerning a trustee's fee in the event of a trustee's sale after the trustor's default: "Trustee's fees hereunder shall be deemed reasonable if they are the greater of either the actual costs incurred by the Trustee or 5% of the balance of the original amount secured hereby."

After the trustor's default on payment of the notes secured by the deeds of trust, the three parcels were sold collectively to the highest bidder for $145,000 at the trustee's sale on June 24, 1988. Hoppe, as trustee, delivered to Speedway and Chadd a "Trustee's Disbursement Statement" reflecting distribution of the $145,000 realized from the sales under the deeds of trust. According to the trustee's disbursement statement, the trustee's fee for the sale of parcels 1 and 2 was $5,750, with sale costs of $129.25. The trustee's fee for parcel 3 was $381.47, with costs of $68.20. Consequently, the trustee's fees and costs for the sales were $6,328.92. Principal and interest due Cornhusker Bank, as beneficiary, regarding the debt secured by parcels 1 and 2 was $129,307.52. The principal and interest regarding the debt secured by parcel 3 was $7,629.47. Consequently, the total due on the indebtedness to Cornhusker Bank was $136,936.99. After deduction of the trustee's fees, costs, and the indebtedness to the bank, there remained $1,734.09 for distribution to "Secondary Lien Holders," which included Speedway and Chadd. At that point, the balance of the trustor's mortgage-debt to Speedway was $84,750.

Speedway filed its declaratory judgment action to determine "the rights of defendant, Ward F. Hoppe, as trustee and the rights of [Speedway] and defendant, Donald Chadd" concerning the proceeds of the sale under the Nebraska Trust Deeds Act. Speedway also requested an accounting "as to all moneys and properties received and held by [the trustee] in connection with the discharge of his duties required pursuant to the Nebraska Trust Deeds Act" concerning the sale of the three parcels.

Hoppe moved for summary judgment concerning the trustee's fees and costs reflected in the trustee's disbursement statement. The district court determined that the "beneficiary and the trustee had an agreement regarding the fees to be paid to the trustee for services as a trustee" concerning sales of the real estate described in the deeds of trust, and it further determined that the trustee's fees of $5,750 for the sales of parcels 1 and 2 and $381.47 for parcel 3 "did not exceed 5% of the balance of the original amount secured by the three Trust Deeds." In view of the fee arrangement between the trustee and beneficiary, the district court ruled that $6,328.92 was the amount due the trustee as the "fees actually incurred [that is] those fees agreed upon between the trustee and beneficiary." Consequently, the trustee's fee and costs of $6,328.92, as a matter of law, was the correct amount due the trustee; hence, an accounting was unnecessary. The court then dismissed Speedway's action.

ASSIGNMENTS OF ERROR

Speedway contends that the district court erroneously granted summary judgment to Hoppe because (1) § 76-1011 of the Nebraska Trust Deeds Act allows compensation to a trustee only for the "fees actually incurred," that is, for the "trustee's services necessary after the trustor's default" and "not exceeding the amount provided in the trust deed," and (2) the court refused to order an accounting by the trustee.

NEBRASKA TRUST DEEDS ACT

This appeal presents a question of first impression regarding a trustee's fee allowable under § 76-1011 of the Nebraska Trust Deeds Act, which states:

The trustee shall apply the proceeds of the trustee's sale, first, to the costs and expenses of exercising the power of sale and of the sale, including the payment of the trustee's fees actually incurred not to exceed the amount which may be provided for in the trust deed, second, to payment of the obligation secured by the trust deed, third, to the payment of junior trust deeds, mortgages, or other lienholders, and the balance, if any, to the person or persons legally entitled thereto.

Hoppe contends that § 76-1011 contains no "mandate or prohibition regarding type, kind, quality, or quantity of fees that may be charged for acting as Trustee except as the same may be limited by the terms set forth in the Trust Deed." Brief for appellee at 3-4. Hoppe then argues that because "there was a limitation set forth within the Trust Deed to five percent (5%) of the original amount secured by the Deed of Trust," the amount of the fee "would have been for the first and second Trust Deeds, each $5,750.00; for the third Trust Deed, $1,000.00." Brief for appellee at 4. In contrast, Speedway contends that an "actually incurred" fee must necessarily be calculated according to the trustee's services actually rendered, and, therefore, is unascertainable before completion of the trustee's duties. Speedway argues that § 76-1011 imposes a limit on a trustee's fees, namely, a trustee's fee cannot "exceed the amount which may be provided for in the trust deed."

When asked to interpret a statute, an appellate court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. A court has a duty to discover, if possible, legislative intent from the statute itself. NC + Hybrids v....