S-20-0373 Claire Schmidt, Individually and as Personal Representative of the Estate of Rex Schmidt (Appellant) v. Roger L. Schmidt and Mary B. Schmidt, et al.
Morrill County District Court, Hon. Leo Dobrovolny
Attorneys: Steven C. Smith (Simmons Olsen Law Firm, PC, LLO, for Appellees) — Todd R. McWha (Waite & McWha, for Appellant)
Civil: Partition; Restraint on Alienation; Attorney’s fees
Proceedings Below: Rex Schmidt, now deceased and substituted by the personal representative of his estate (Appellant), moved the district court to partition real estate that he and his four other siblings (collectively, Appellees) inherited as tenants in common. The court ordered the real estate be partitioned through auction. However, the court refused to partition the five siblings’ recreational rights in the real estate. Additionally, the court granted attorney fees be paid from the sale of the real estate to all parties. Appellant appealed to the Court of Appeals and Appellees cross-appealed.
Issue on Appeal: Appellant argues the court erred in 1) failing to order the partition of the siblings’ recreational rights; 2) failing to void the restraint on alienation of the recreational rights; and 3) granting attorney fees to Appellees. Appellees assign in their cross appeal that the court erred in granting attorney fees to any party.