Mogensen v. Mogensen, No. S-05-879.
| Court | Supreme Court of Nebraska |
| Writing for the Court | Connolly |
| Citation | 729 N.W.2d 44,273 Neb. 208 |
| Parties | Keith MOGENSEN, Appellant and Cross-Appellee, v. Steven MOGENSEN, Defendant and Third-Party Plaintiff, Appellee and Cross-Appellant, Brian Mogensen, Third-Party Defendant, Appellee, Sandra Mogensen, Third-Party Defendant, Appellee and Cross-Appellee, and Opal Mogensen, Third-Party Defendant, Appellant and Cross-Appellee. |
| Docket Number | No. S-05-879. |
| Decision Date | 16 March 2007 |
v.
Steven MOGENSEN, Defendant and Third-Party Plaintiff, Appellee and Cross-Appellant,
Brian Mogensen, Third-Party Defendant, Appellee, Sandra Mogensen, Third-Party Defendant, Appellee and Cross-Appellee, and
Opal Mogensen, Third-Party Defendant, Appellant and Cross-Appellee.
[729 N.W.2d 48]
Galen E. Stehlik, of Lauritsen, Brownell, Brostrom, Stehlik, Myers & Daugherty, P.C., L.L.O., Grand Island, for appellants.
Cathy S. Trent-Vilim, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., Lincoln, and, on brief, Barry D. Geweke, of Stowell, Kruml, Geweke & Cullers, P.C., L.L.O., Ord, for appellee Steven Mogensen.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
CONNOLLY, J.
Keith Mogensen sued Steven Mogensen to force him to sell his partnership interest in Mogensen Bros. Land & Cattle Company (Mogensen Bros.). Keith sought to enforce a buyout provision in the partnership agreement. Steven counterclaimed against Keith, Sandra Mogensen, and Opal Mogensen, seeking a declaration that two real estate parcels, known as DeWulf Place and Mahoney Place, are partnership property. Opal is the titled owner of DeWulf Place, and Keith owns Mahoney Place.
In Keith's claim, the district court found that under the partnership agreement, Keith failed to exercise the buyout within 90 days as provided in the partnership agreement. In Steven's counterclaim, the court found that Opal's DeWulf Place was partnership property, but denied Steven's claim that Mahoney Place was partnership property.
We have two questions to consider: (1) when did the 90-day provision start and (2) whether the two real estate parcels titled in Opal's and Keith's names are partnership property.
In 1982, brothers Brian Mogensen, Keith, and Steven entered a partnership agreement forming Mogensen Bros., a farming operation. Third-party defendant Opal is their mother, and third-party defendant Sandra is Keith's wife. The brothers are also the shareholders in a family construction company called Ranch and Farm Agricultural Systems, Inc. (Ranch and Farm).
The Mogensen Bros. partnership agreement contains a buy-out option. Paragraph 19 of the partnership agreement provides that a partner who wishes to withdraw and dispose of his interest must give the other partners written notice of his intent and
an opportunity to purchase his interest. This provision further requires that a partner electing to purchase must provide notice of his intent to the withdrawing partner within 90 days after the withdrawing partner gives notice that he intends to dispose of his interest. The withdrawing partner must then sell his interest to the purchasing partner at book value.
For several years, tension had been building between Steven and his brothers. Brian, Keith, and Steven attempted to reach an agreement in dissolving and winding up the partnership, but those attempts failed. On October 3, 2002, Steven sued Mogensen Bros., Keith, and Brian, seeking to have the partnership dissolved and its assets liquidated under the Uniform
Partnership Act of 1998.1 The district court, however, found that under § 67-404(1), judicial dissolution was inappropriate. The court found that under § 67-404(1), the partnership agreement governs relations between partners. And because the Mogensen Bros. partnership agreement provides a method for a partner to withdraw from the partnership, the court found the partnership agreement governs the partnership dissolution. On July 28, 2003, the court granted summary judgment against Steven. Steven did not appeal.
Keith alleges that Steven's 2002 lawsuit to dissolve the partnership amounted to written notice that Steven intended to dispose of his interest in Mogensen Bros. Consequently, on August 25, 2003, Keith notified Steven that he intended to exercise the option to purchase Steven's partnership interest. He sent another letter to Steven on October 15, 2003, with an accountant's evaluation of Steven's interest. Steven refused to sell his partnership interest to Keith.
On March 29, 2004, Keith sued Steven to specifically enforce the buyout provision. The district court found that when Steven filed his 2002 lawsuit for dissolution, he gave notice of his intent to dispose of his partnership interest. But the court also found
that Keith did not exercise his option to purchase within 90 days. The court determined that Steven's notice to sell his interest was effective the day he filed suit. Because Keith did not give notice of his intent to purchase until nearly 1 year later, the district court found that Keith failed to timely exercise the buyout option. The court dismissed Keith's complaint. Keith appeals, arguing that the July 28, 2003, order granting summary judgment — not the date Steven filed his action — triggered the start of the 90-day notice period and that thus, his August 25 and October 15 letters were timely notice. Steven does not appeal the court's finding that his lawsuit triggered the buyout provision.
In Steven's counterclaim to Keith's lawsuit, he requested a declaration that Mogensen Bros. owns two parcels of real estate known as DeWulf Place and Mahoney Place. Although neither property is titled in the partnership's name, Steven claims that Mogensen Bros. owns both parcels.
Brian, Keith, and Steven decided to purchase DeWulf Place at auction. Opal, however, is the title owner of DeWulf Place. Opal testified she acquired title because "[t]he boys decided that they wanted to put it in my name and I agreed to it." She testified they put the property in her name to benefit from a government farm subsidy program. She further testified Mogensen Bros. paid 10 percent of the purchase price, about $10,000 to $12,000, and she financed the remaining 90 percent through a loan from Ranch and Farm.
For about 8 years, from 1990 to 1998, the partnership paid no rent, but made improvements and paid the taxes on the property. Opal testified that Mogensen Bros. "developed the land, they put pivots on it, [and] they put wells down," and the partnership listed the irrigation development at DeWulf Place as a partnership asset. Keith and Opal testified, however, that the improvements and taxes were
considered rent. At some point after 8 years, Mogensen Bros. began paying Opal $30,000 in annual rent, and Opal testified she paid the real estate taxes and made the $25,000 loan payment to Ranch and Farm. Mogensen Bros., however, reimbursed Opal for real estate taxes on DeWulf Place in 2002.
Some documents also show Mogensen Bros. as the owner of DeWulf Place, including the ground water well registration. And Mogensen Bros. listed DeWulf Place as a partnership asset on the Mogensen Bros. 2003 tax asset schedule. Keith or Opal, however, informed the partnership's accountant that DeWulf Place should not have been on the tax schedule, and the accountant removed it. Opal testified that she considers the farm to be hers.
The district court determined that Mogensen Bros. owns DeWulf Place. It found that "the evidence clearly shows that . . . DeWulf [P]lace was acquired solely with partnership assets." Keith and Opal appeal.
Keith is the title owner of Mahoney Place. Keith and Sandra borrowed the funds to purchase Mahoney Place, and they have made the annual loan payments. After acquiring the property, Keith and Sandra annually leased it to Mogensen Bros. Mogensen Bros. and Keith have both paid for irrigation developments on the property. The district court found that Keith and Sandra own Mahoney Place.
Keith and Opal assign, restated and renumbered, that the district court erred in (1) holding that Keith did not timely exercise the buy-sell provision of the partnership agreement and (2) determining that DeWulf Place is a partnership asset.
On cross-appeal, Steven assigns, restated, that the court erred in determining that Mahoney Place is not a partnership asset.
Regarding Keith's claim to enforce the buyout provision, an action for specific performance sounds in equity, and on appeal, we decide factual questions de novo on the record. We will resolve questions of fact and law independently of the trial court's conclusions.2
Regarding Steven's counterclaim, in reviewing an equity action for a declaratory judgment, we decide factual issues de
novo on the record and reach conclusions independent of the trial court. But when credible evidence is in conflict on material issues of fact, we may consider and give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over another.3
Keith contends that he timely exercised his option to purchase Steven's partnership interest under the buyout provision. He argues that he complied with the timeframe because he gave notice of his intention to buy out Steven's partnership interest within 90 days of July 28, 2003, the date of the summary judgment order in Steven's prior lawsuit.
We have not previously addressed the issue of when a lawsuit for dissolution of a partnership triggers a buy-sell provision. But other courts have held that the filing of a lawsuit to dissolve a partnership or service of the complaint gives notice of a partner's intent to withdraw or dissolve a partnership. In Logan v. Logan,4 the plaintiffs brought an action for dissolution of a partnership. In response, the...
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