Marten v. Staab

• Decision Date: 09 February 1996
• Docket Number: No. S-94-621,S-94-621
• Citation: 249 Neb. 299,543 N.W.2d 436
• Parties: Karl F. MARTEN and Adam J. Marten, Appellees, V. Barbara A. STAAB and Judith M. Marten, Copersonal Representatives of the Estates of Fred J. Marten and Ruthanna Marten, deceased, Appellants.
• Court: Nebraska Supreme Court

Page 436

543 N.W.2d 436

249 Neb. 299

Karl F. MARTEN and Adam J. Marten, Appellees,

V.

Barbara A. STAAB and Judith M. Marten, Copersonal Representatives of the Estates of Fred J. Marten and Ruthanna Marten, deceased, Appellants.

No. S-94-621.

Supreme Court of Nebraska.

Feb. 9, 1996.

Syllabus by the Court

1. Specific Performance: Equity. An action for specific performance sounds in equity.

2. Equity: Appeal and Error. On appeal from an equity action, the appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent from the conclusion reached by the trial court.

3. Actions: Parties: Standing. In order for one to be entitled to invoke a court's jurisdiction, one must have standing to sue, which involves having some real interest in the cause of action; in other words, to have standing to sue, a plaintiff must have some legal or equitable right, title, or interest in the subject matter of the controversy.

4. Actions: Parties: Standing. The purpose of an inquiry on standing is to determine whether the party has a legally protectable interest or right in the controversy that would benefit by the relief to be granted.

5. Contracts: Actions: Principal and Agent. An agent who, on behalf of an undisclosed principal, enters into a contract in the agent's own name is entitled to maintain an action thereon in the agent's own name.

6. Contracts: Intent. In order for those not named as parties to a contract to recover thereunder as third-party beneficiaries, it must appear by express stipulation or by reasonable intendment that the rights and interests of such unnamed parties were contemplated and provision was made for them.

7. Contracts. A third-party beneficiary's rights depend upon, and are measured by, the terms of the contract between the promisor and promisee.

8. Decedents' Estates: Actions: Equity: Courts: Jurisdiction. In common-law and equity actions relating to decedents' estates, the county courts have concurrent original jurisdiction with the district courts.

9. Contracts: Auctions. Whether a contract was formed at an auction is a question of law.

10. Auctions: Principal and Agent: Words and Phrases. In an auction with reserve, the auctioneer, as agent of the seller, invites bids (offers) with the understanding that no bargain exists until the seller has made a further manifestation of assent; the auctioneer may reject all bids and withdraw the goods from sale until he announces completion of the sale.

11. Auctions. In an auction with reserve, the bidder is deemed to be the offeror, while the auctioneer is the offeree.

12. Auctions: Presumptions. Auctions are presumed to be with reserve unless they are expressly stated to be without reserve.

13. Auctions. In a no-reserve auction, also known as an absolute auction, the seller becomes the offeror and the bidder the offeree.

14. Contracts: Auctions. In a no-reserve auction, the contract is consummated with each bid, subject only to a higher bid being received.

Petition for further review from the Nebraska Court of Appeals; Sievers, Chief Judge, and Irwin and Mues, Judges, on appeal thereto from the District Court for Thomas County; John P. Murphy, Judge.

Claude E. Berreckman, of Berreckman & Berreckman, P.C., Cozad, for appellants.

Robert E. Wheeler, Broken Bow, for appellees.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

CAPORALE, Justice.

I. INTRODUCTION

The defendants-appellants, Barbara A. Staab and Judith M. Marten, copersonal representatives of the estates of their deceased parents, challenged in the Nebraska Court of Appeals the district court's decree of specific performance requiring them to sell certain auctioned lands to their brother, plaintiff-appellee Karl F. Marten, and their nephew, plaintiff-appellee Adam J. Marten, the aforesaid brother's son. In so doing, the personal representatives asserted, among other things, that the district court erred in ruling that (1) the county court probating the estates lacked jurisdiction to confirm the sales and (2) the auction created an enforceable contract. The Court of Appeals reversed the judgment of the district court. Marten v. Staab, 4 Neb.App. 19, 537 N.W.2d 518 (1995). We then granted the petition for further review filed by the brother and nephew and now affirm the judgment of the Court of Appeals.

II. SCOPE OF REVIEW

An action for specific performance sounds in equity. Winberg v. Cimfel, 248 Neb. 71, 532 N.W.2d 35 (1995); Fritsch v. Hilton Land & Cattle Co., 245 Neb. 469, 513 N.W.2d 534 (1994). On appeal from an equity action, the appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent from the conclusion reached by the trial court. Poppleton v. Village Realty Co., 248 Neb. 353, 535 N.W.2d 400 (1995); Pick v. Nelson, 247 Neb. 487, 528 N.W.2d 309 (1995); Hlava v. Nelson, 247 Neb. 482, 528 N.W.2d 306 (1995).

III. FACTS

The personal representatives obtained an order from the county court probating the estates to sell five parcels of estate land, either at a public auction or a private sale. After advertising and publishing legal notice of the sale, attorney Tedd Huston conducted an auction of the lands at the Thomas County courthouse. On behalf of the brother and nephew, attorney Robert Wheeler recorded the introduction and bidding portions of the auction on audiotape. The tape and transcription of its contents were received in evidence in the proceedings below.

Huston began the auction by reading the legal notice and describing the lands. At that point, the following exchange took place:

SALE ATTENDEE: You're not going to tie it altogether?

[Huston]: It's going to be sold only by the tracts and we're not going to have one overall bid for all.

[Nephew]: Is this an absolute sale?

[Huston]: This is a sale subject to confirmation by the court, as I just read. It will have to be approved by the county court.

Huston also stated that

[t]his will be an auction with no protected bids, however, the sale is upon authority of the county court and it will be held open for one hour and will be confirmed by the court which will take approximately 20 to 30 days from the date of the sale to be confirmed by the court.

Huston then proceeded to auction the various tracts of land. For the first tract, Huston stated: "We're going to open the bidding on Tract Number 1 at $200 per acre. That's our starting bid, $200 per acre." The nephew then bid $125 per acre. Huston responded that he could not accept that bid because the opening bid was $200 per acre. The nephew was the only person at the auction who bid on that particular tract of land.

The remaining tracts of land received similar treatment, with Huston calling for starting bids at a certain price and the nephew, as the only bidder, offering prices below the starting bid requested. A written record of the bids was made, and at the conclusion of the bidding, the following was said:

[Huston:] These bids have been recorded, they'll be reported to the court and we'll take no further bids.... I can assure you that probably the court will not confirm any of these because they are inadequate. If any of you are interested in purchasing any of this property in small tracts that we have here, it can be sold at a private sale and if you are please contact me or one of the [personal] representatives of the estate....

[Wheeler]: Mr. Huston, before you close....

[Huston]: The sale has been open for an hour, and is now officially closed.

[Wheeler]: Mr. Huston, I don't think it's been open an hour from the time you started the bidding[.]

[Huston]: We started at....

[Wheeler]: Well I know that's the time you started, but may I ask you, you had bids and from my understanding it's an absolute sale. Are you then accepting the bids of [the nephew].

[Huston]: First of all, it's not an absolute sale. What we've done, we've posted this, and we've told you several times "These bids will be submitted to the court and the court will either confirm or not confirm[.]"

[Wheeler]: So are you saying you are accepting [the nephew's] bid to submit to the court for confirmation?

[Huston]: It's the only one we have to submit to the court so obviously since we have no other bids. We will submit it.

Huston then called the nephew over to the clerk's table to make the downpayment. Mike Moody accompanied the nephew and presented a check for 20 percent of the bids. There is conflicting testimony, and no taped recording, as to what was said when Moody presented the check. Moody testified that he understood the check would be cashed. However, Howard Furgeson, the clerk of the auction, and attorney Jason White, who practices law with Huston and attended the sale, testified that Huston stated there had been no sale and had informed Moody that the check would not be cashed.

In any event, Huston thereafter submitted the nephew's bids to the probate court, which refused to confirm the sale. Following the denial of confirmation, Huston returned Moody's check.

IV. ANALYSIS

Before addressing the assignments of error, an initial question exists with regard to the brother's standing to bring this action.

In order for one to be entitled to invoke a court's jurisdiction, one must have standing to sue, which involves having some real interest in the cause of action; in other words, to have standing to sue, a plaintiff must have some legal or equitable right, title, or interest in the subject matter of the controversy. The purpose of an inquiry on standing is to determine whether the party has a legally protectable interest or right in the controversy that would benefit by the relief to be granted. SID No. 57 v. City of Elkhorn, 248 Neb. 486, 536 N.W.2d 56 (1995); City of Ralston v. Balka, 247 Neb. 773, 530 N.W.2d 594 (1995).

The brother claims to have...