Stewart v. Bennett, S-05-1100.
| Court | Supreme Court of Nebraska |
| Writing for the Court | McCormack |
| Citation | 273 Neb. 17,727 N.W.2d 424 |
| Parties | Paul D. STEWART and Beverly A. Stewart, appellees, v. Darlene A. BENNETT, Trustee of the Darlene A. Bennett Revocable Trust, appellant. |
| Docket Number | No. S-05-1100.,S-05-1100. |
| Decision Date | 02 February 2007 |
v.
Darlene A. BENNETT, Trustee of the Darlene A. Bennett Revocable Trust, appellant.
[727 N.W.2d 426]
Lance D. Ehmcke, Joel D. Vos, and Jeremy J. Cross, of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., for appellant.
Thomas A. Fitch, Lincoln, of Fitch Law Office, for appellees.
[727 N.W.2d 427]
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
McCORMACK, J.
This case presents an action originally brought by Paul D. Stewart and Beverly A. Stewart to establish a holdover tenancy under the terms and conditions of an expired lease agreement with the landowner, Darlene A. Bennett, trustee of the Darlene A. Bennett Revocable Trust. Bennett denied the existence of a holdover tenancy and asserted that any rule of law establishing a holdover tenancy in this case would be an unconstitutional taking of property without due process. Bennett counterclaimed for liquidated damages as specified in the lease for failure to relinquish possession.
The district court found that under the undisputed facts presented, no holdover tenancy was created. Accordingly, the district court granted Bennett's motion for summary judgment and dismissed the Stewarts' petition against Bennett. The Stewarts do not appeal the determination that there was no creation of a holdover tenancy, and that issue is not before us in this appeal.
Both parties originally sought attorney fees under paragraph 26 of the lease, which stated that if either party files suit to enforce the terms of the lease, the prevailing party shall be entitled to recover court costs and reasonable attorney fees. After the district court dismissed the Stewarts' petition, but before ruling on Bennett's counterclaim, the Stewarts challenged the validity of the attorney fee provision. Bennett responded that the Stewarts
were barred from asserting that the attorney fee provision was against public policy, since they were the first party to ask for attorney fees under the provision. Bennett also alleged that any jurisprudence determining such provision to be against public policy was unconstitutional.
Citing Parkert v. Lindquist, 269 Neb. 394, 693 N.W.2d 529 (2005), and the cases discussed therein, the district court denied attorney fees. The court overruled Bennett's constitutional challenge to holdover tenancy law, explaining that because it determined that there was no holdover tenancy, the issue was moot. The court did not specifically address Bennett's argument that the rule recognized in Parkert was unconstitutional. Bennett appeals.
Bennett asserts that the district court erred in (1) finding that Bennett was not entitled to attorney fees under paragraph 26 of the lease agreement, (2) failing to rule that the judicially created public policy against awarding attorney fees provided for in a contractual provision violates the separation of powers clause of the Nebraska Constitution, and (3) failing to rule that the judicially created notice requirement to terminate farm tenancies violates the separation of powers clause of the Nebraska Constitution.
This case presents questions of law, upon which the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision by the trial court. See Stewart v. Advanced Gaming Tech., 272 Neb. 471, 723 N.W.2d 65 (2006).
The sole issue in this appeal is whether the district court erred in failing to grant attorney fees to Bennett. Bennett asks us to revisit our previously established rule that a contractual provision for attorney fees, where such fees are not provided by statute or uniform course of procedure, is
against public policy and will not be judicially enforced. See Parkert v. Lindquist, supra. Alternatively, Bennett asserts that some form of equitable defenses, i.e., the doctrines of unclean hands, waiver, and estoppel, should operate to preclude recognition of the voidness of the fee provision in this case. She reasons that the Stewarts were the
first to request fees in their unsuccessful petition against Bennett and because the Stewarts had signed the lease with the fee provision. Finally, Bennett seeks a declaration that our case law on holdover tenancies is unconstitutional. Although no such tenancy was found in this case, Bennett asserts that the issue should be addressed under an exception to the mootness doctrine.
We decline to overrule the line of cases which clearly hold that the attorney fee provision at issue in this case is invalid. Because it is uncontested that no holdover tenancy was created, we will not address Bennett's attacks on the constitutionality of holdover tenancy jurisprudence.
Bennett first asserts various equitable defenses which Bennett argues preclude the Stewarts from benefiting from any public policy invalidation of the attorney fee provision. Bennett is unable to cite any case law directly applicable to this point. Rather, Bennett relies on generalized references to the doctrines of unclean hands, waiver, and estoppel to argue that because the Stewarts signed the lease agreement with the attorney fee provision and also because they requested such fees in their original petition, they could not later assert that the attorney fee provision was void as against public policy.
The doctrines of unclean hands, waiver, and estoppel clearly do not apply to the Stewarts' claim that the attorney fee provision is invalid. First, it is axiomatic that a party...
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...answering party from later seeking to assert positions at variance with the responses contained in those answers. 24 Stewart v. Bennett, 727 N.W.2d 424, 273 Neb 17 (2007). Generally, conclusions of law contained in pleadings cannot constitute judicial admissions because admissions contained......
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Legal documents
...answering party from later seeking to assert positions at variance with the responses contained in those answers. 26 Stewart v. Bennett, 727 N.W.2d 424, 273 Neb 17 (2007). Generally, conclusions of law contained in pleadings cannot constitute judicial admissions because admissions contained......
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Legal documents
...answering party from later seeking to assert positions at variance with the responses contained in those answers. 29 Stewart v. Bennett, 727 N.W.2d 424, 273 Neb 17 (2007). Generally, conclusions of law contained in pleadings cannot constitute judicial admissions because admissions contained......
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Legal Documents
...Guard hearing, was not admissible as prior testimony because the party against whom it was offered did not have a 29 Stewart v. Bennett, 727 N.W.2d 424, 273 Neb 17 (2007). Generally, conclusions of law contained in pleadings cannot constitute judicial admissions because admissions contained......