In re Estate of Ronan

in Anderson, who had the contents of the headline brought
to their attention and then proceeded to discuss it, there is
no evidence that suggests that D.W. or F.W. discussed the
contents of the headline with anyone. In fact, the record
establishes that F.W. threw the newspaper away “as fast as
I probably have in my life.” And D.W. indicated that he saw
the article’s headline and “just looked down” to avoid seeing
anything further.
Moreover, we conclude that Floyd has failed to meet his
burden of showing that his right to a fair trial was prejudiced
by the alleged misconduct. We noted in Anderson that the
“mere use of the word retrial” was not, on its own, prejudicial.
And as in Anderson, there is nothing in the record that would
suggest either D.W. or F.W. had any knowledge as to Floyd’s
prior conviction or as to why he was being granted a new trial.
In fact, with respect to F.W., there is no evidence that she was
even aware that Floyd’s trial was a retrial. We therefore also
conclude that the district court did not abuse its discretion in
denying Floyd’s motion for mistrial.
Floyd’s fifth and final assignment of error is without merit.
CONCLUSION
Floyd’s convictions and sentences are affirmed.
A ffirmed.
in re estAte of John t. ronAn, sr ., deceAsed.
chArles h. WisemAn, AppellAnt, v. JeAn t. ruWe And
dAniel h. ruWe , copersonAl representAtives of the
estAte of John t. ronAn, sr ., deceAsed, Appellees.
763 N.W.2d 704
Filed April 3, 2009. 	No. S-08-062.
1. Real Estate: Sales: Agents. Pursuant to the Nebraska Real Estate License Act,
Neb. Rev. Stat. §§ 81-885.01 to 81-885.55 (Reissue 2008), any person collecting
a fee or commission on the sale of real estate must be a licensed real estate broker
or salesperson unless he or she meets one of the exceptions provided in the act.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
516 	277 NEbRASkA REPORtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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3. Summary Judgment. Summary judgment is proper where the facts are uncontro-
verted and the moving party is entitled to judgment as a matter of law.
4. Summary Judgment: Appeal and Error. 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, giving that party the benefit of all reasonable
inferences deducible from the evidence.
Appeal from the County Court for Dodge County: K enneth
vAmpolA, Judge. Affirmed.
Nicholas J. Lamme, of Yost, Schafersman, Lamme, Hillis,
Mitchell & Schulz, P.C., L.L.O., for appellant.
bradley D. Holtorf and Shane J. Placek, of Sidner, Svoboda,
Schilke, thomsen, Holtorf, boggy & Nick, for appellees.
heAvicAn, 	c.J., 	Wright, 	connolly, 	gerrArd, 	stephAn,
mccormAcK, and miller-lermAn, JJ.
gerrArd, J.
John t. Ronan, Sr., owned real estate that he wished to
sell. Ronan agreed to pay the appellant, Charles H. Wiseman,
a 4-percent commission if he found a buyer for the prop-
erty. Wiseman found a purchaser for the real estate; however,
Ronan died before paying Wiseman the commission. Wiseman
filed this action seeking payment of the commission from
Ronan’s estate.
[1] Pursuant to the Nebraska Real Estate License Act (Act),1
any person collecting a fee or commission on the sale of real
estate must be a licensed real estate broker or salesperson
unless he or she meets one of the exceptions provided in the
Act. One such exception is when an individual is performing
his or her duties as an attorney at law. the primary question
presented in this case is whether Wiseman was exempted from
the licensing requirement of the Act by performing duties as
an attorney.
We conclude that Wiseman is barred from recovering any
compensation for his services, because he acted as a broker
under the Act without obtaining a real estate license and did
not meet the requirements of the attorney exception.
1 See Neb. Rev. Stat. §§ 81-885.01 to 81-885.55 (Reissue 2008).
IN RE EStAtE OF RONAN 	517
Cite as 277 Neb. 516

FACtS
Ronan owned real estate in Costa Rica that he wished to
sell. to facilitate the sale, Ronan, through his attorney, con-
tacted Wiseman. At the time, Wiseman was licensed to prac-
tice law in Nebraska and South Carolina. Wiseman was not,
however, a licensed real estate broker or salesperson under
the Act.
Ronan wrote a letter to his personal attorney stating that
if Wiseman “succeeds in introducing someone who actually
buys the property, he will receive 4% of the selling price
($32,000.00).” Wiseman introduced Ronan to one of his clients,
thomas Ploskina, as a potential buyer. After the introduction,
Ploskina traveled to Nebraska to meet with Ronan and discuss
the property. During the negotiation, Wiseman performed vari-
ous legal services for Ploskina, including some due diligence
regarding the possible purchase of the property. As the discus-
sions progressed, Wiseman, on behalf of Ploskina, drafted a
“Letter of Understanding” proposing that Ploskina would pur-
chase the property. but the letter was never signed, and Ronan
rejected Ploskina’s offer.
Apart from one telephone call with Ronan, Wiseman had
no further involvement in the transaction. Eventually, Ploskina
purchased the property through a corporation he formed with
two others. the corporation was represented throughout the
purchase of the property by a separate attorney. Ronan’s attor-
ney from Costa Rica attended the closing. Wiseman was not
present at the closing on the property. Ronan died before pay-
ing Wiseman any commission.
Wiseman filed a statement of claim against Ronan’s estate
for breach of contract for “[f]ailure to pay a finder[’]s fee” of
4 percent. the copersonal representatives of Ronan’s estate
disallowed the claim, and the issue was presented to the
county court. the court found that Wiseman’s claim for pay-
ment from Ronan was for a commission for the sale of the
Costa Rica real estate and was not for services rendered in
performance of his duty as an attorney at law. the court
concluded that the commission was not exempt from the
Act and granted summary judgment in favor of the estate.
Wiseman appeals.
518 	277 NEbRASkA REPORtS

ASSIgNMENt OF ERROR
Wiseman 	assigns, 	consolidated 	and 	restated, 	that 	the
county court erred in finding that Wiseman did not meet the
exception to the license requirement of the Act contained in
§ 81-885.04(2).
StANDARD OF REVIEW
[2-4] When reviewing questions of law, an appellate court
has an obligation to resolve the questions independently of the
conclusion reached by the trial court.2 Summary judgment is
proper where the facts are uncontroverted and the moving party
is entitled to judgment as a matter of law.3 In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment
was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.4
ANALYSIS
the Act requires that all persons who act as real estate bro-
kers, as defined therein, in exchange for a fee, must be licensed
by the State Real Estate Commission.5 And if a person acts as
a real estate broker without a license, he or she cannot recover
compensation for it, unless he or she falls within one of the
statutory exceptions to the licensure requirement.6 As relevant
in this case, § 81-885.04(2) states that the Act does not apply to
“[a]n attorney in fact under a duly executed power of attorney
to convey real estate from the owner or lessor or the services
rendered by any attorney at law in the performance of his or
her duty as such attorney at law.”
Wiseman argues that the county court erred in finding that
he did not meet the § 81-885.04(2) exception to the license
2 Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d 730
(2008).
3 Unisys Corp. v. Nebraska Life & Health Ins. Guar. Assn., 267 Neb. 158,
673 N.W.2d 15 (2004).
4 Amanda C. v. Case, 275 Neb. 757, 749 N.W.2d 429 (2008).
5 See § 81-885.02.
6 See § 81-885.06.
IN RE EStAtE OF RONAN 	519
Cite as 277 Neb. 516

requirement of the Act. Wiseman asserts that because the ser-
vices he provided to both Ronan and Ploskina were legal ser-
vices, he was exempt from the Act’s license requirement.
We turn first to the legal services Wiseman alleges he pro-
vided to Ronan. In essence, Wiseman claims that by acting
as an attorney for Ronan, he was acting as an “attorney in
fact under a duly executed power of attorney to convey real
estate from the owner or lessor.”7 As proof that he was acting
as Ronan’s attorney, Wiseman points to his affidavit. In the
affidavit, Wiseman asserted that he “was acting as an Attorney
for . . . Ronan as confirmed by him in the Sixth paragraph
of a letter to my father, Mike Wiseman, from . . . Ronan
. . . dated December 9, 2004 in which Ronan confirmed that
I was performing legal services by stating that I would have
‘legal charges.’”
However, Wiseman’s bare conclusion that he was acting as
Ronan’s attorney is not supported by the record. In his deposi-
tion, Wiseman admitted that he was not performing legal work
for Ronan and was not Ronan’s attorney. Wiseman also admits
that when the Costa Rica real estate transaction was completed,
Ronan had another attorney. there is no evidence in the record
that Wiseman performed any services for Ronan that would
have required him to be a member of the bar or that Wiseman
actually conveyed property under a power of attorney. based
on the record, we conclude that Wiseman was not acting as an
attorney for Ronan and therefore was not excluded from the
license requirement of the Act.
Wiseman also claims that he is exempted from the license
requirement because he was acting as an attorney for Ploskina.
this argument is presumably based on the second part of
§ 81-885.04(2), which excludes from the license requirement
“the services rendered by any attorney at law in the performance
of his or her duty as such attorney at law.” Wiseman claims that
because he was providing services in the performance of his
duty as an attorney at law—even if not for the owner or les-
sor of the real estate—he is exempt from the license require-
ment. Wiseman points to a number of instances he claims are
7 See § 81-885.04(2).
520 	277 NEbRASkA REPORtS

services in the performance of his duty as an attorney at law for
Ploskina, including communicating to Ronan about an inter-
ested buyer, placing Ploskina in contact with Ronan to arrange
a property inspection, and advising on various due diligence
issues and proposals to purchase the property.
We conclude, however, that these “services rendered” were
not in the performance of Wiseman’s duty as an attorney at law;
rather, Wiseman was to collect a “finder’s fee” for facilitating
the sale of real property—duties of a real estate broker. As we
read the statute, the exception of § 81-885.04(2) is limited to
those instances where an attorney is acting within the scope of
his duties as an attorney.
And more importantly, the services Wiseman allegedly pro-
vided to Ploskina are not the services for which Wiseman is
now seeking payment. there is no indication in the record
that Ronan, or Ronan’s estate, would somehow be liable for
legal services Wiseman provided to Ploskina. the exception
of § 81-885.04(2) extends to “services rendered by an attorney
at law in the performance of his or her duty as such attorney
at law.” Even if Ronan rendered services to Ploskina in the
performance of his duty as an attorney at law—a contention
that is unsupported by the record—those legal services are
not the subject of this claim. Instead, this claim is for the
services provided to Ronan—which, as noted above, were not
legal services.
In short, Wiseman’s services were not within the exception
provision of § 81-885.04(2). there is no connection between
the activities undertaken by Wiseman and any professional ser-
vices he was furnishing as an attorney. the agreement between
Ronan and Wiseman was for Wiseman to locate a buyer for
the Costa Rica property in exchange for a “finder’s fee.” the
services contracted to be performed were those of a real estate
broker within the terms of the Act, and therefore, Wiseman was
required to have a broker’s license. Wiseman’s assignment of
error is without merit.
CONCLUSION
Wiseman’s claim sought compensation for services that
required a license under the Act. because Wiseman did not
IN RE EStAtE OF RONAN 	521
Cite as 277 Neb. 516

have a license, the county court correctly concluded that his
claim was barred by § 81-885.06. the court’s order granting
Ronan’s motion for summary judgment is affirmed.
A ffirmed.
WilliAm mcK ennA, AppellAnt, v. JAson JuliAn
And the city of omAhA, A politicAl
subdivision, Appellees.
763 N.W.2d 384
Filed April 3, 2009. 	No. S-08-183.
1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a
district court’s grant of a motion to dismiss de novo, accepting all the allegations
in the complaint as true and drawing all reasonable inferences in favor of the
nonmoving party.
2. Pleadings: Proof. Complaints should be liberally construed in the plaintiff’s
favor and should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his or her
claim which would entitle the plaintiff to relief.
3. Actions: Public Officers and Employees: Immunity. When an action is brought
against an individual employee of a state agency, a court must determine whether
the action against the individual official is in reality an action against the state
and therefore barred by sovereign immunity.
4. Political Subdivisions Tort Claims Act. tort actions against the state and its
political subdivisions are prosecuted pursuant to the Political Subdivisions tort
Claims Act.
5. Jurisdiction: Governmental Subdivisions: Immunity. Sovereign immunity
deprives a trial court of subject matter jurisdiction for lawsuits in which the state
or certain governmental units have been sued, unless the state consents to suit.
6. Constitutional Law: Legislature: Immunity: Waiver. Neb. Const. art. V, § 22,
provides that the state may sue and be sued and that the Legislature shall provide
by law in what manner and in what courts suits shall be brought and is interpreted
to mean that the state is permitted to lay its sovereignty aside and consent to be
sued on such terms and conditions as the Legislature may prescribe.
7. ____: ____: ____: ____. Neb. Const. art. V, § 22, is not self-executing, but
instead requires legislative action for waiver of the state’s sovereign immunity.
8. Political Subdivisions Tort Claims Act: Legislature: Immunity: Negligence.
the Legislature, through the Political Subdivisions tort Claims Act, has removed,
in part, the traditional immunity of subdivisions for the negligent acts of
their employees.
9. Political Subdivisions Tort Claims Act: Immunity: Waiver. the Political
Subdivisions tort Claims Act prescribes the procedure for maintenance of a suit
522 	277 NEbRASkA REPORtS