Judgments: Appeal and Error. In a bench
trial of a law action, the trial court's factual findings
have the effect of a jury verdict and will not be disturbed
on appeal unless clearly wrong. But an appellate court
independently reviews questions of law decided by a lower
Limitations of Actions: Appeal and Error.
The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the
decision of the district court on the issue of the statute of
limitations normally will not be set aside by an appellate
court unless clearly wrong.
Declaratory Judgments: Contracts: Appeal and
Error. An action for declaratory judgment is sui
generis; whether such action is to be treated as one at law
or one in equity is to be determined by the nature of the
dispute. When a dispute sounds in contract, the action is to
be treated as one at law. An appellate court treats the
determination of factual issues in such a declaratory
judgment action which was tried without a jury in the same
manner as any other action at law; accordingly, the findings
of the trial court have the effect of a verdict and will not
be set aside unless clearly wrong.
Prejudgment Interest: Appeal and Error.
Awards of prejudgment interest are reviewed de novo.
Statutes: Appeal and Error. Statutory
interpretation presents a question of law on which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
Limitations of Actions: Contracts. An action
upon an oral contract must be brought within 4 years from the
date of the event giving rise to the cause of action.
Actions: Contracts: Time: Damages. A cause
of action in contract accrues at the time of breach or the
failure to do the thing agreed to. [303 Neb. 281] This is so
even though the nature and extent of damages may not be
Limitations of Actions. Generally, a cause
of action accrues and the period of limitations begins to run
upon the violation of a legal right, that is, when the
aggrieved party has the right to institute and maintain suit.
Contracts: Judgments: Appeal and Error. The
disputed terms of an oral agreement are questions of fact,
and in a bench trial of a law action, the trial court's
factual findings have the effect of a jury verdict and will
not be disturbed on appeal unless clearly wrong.
Trial: Witnesses: Evidence: Appeal and
Error. In a bench trial of an action at law, the
trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. An
appellate court will not reevaluate the credibility of
witnesses or reweigh testimony but will review the evidence
for clear error.
Trial: Expert Witnesses: Appeal and Error.
Generally, an appellate court reviews a trial court's
decision to exclude expert testimony for an abuse of
Trial: Evidence: Appeal and Error. In a
civil case, the admission or exclusion of evidence is not
reversible error unless it unfairly prejudiced a substantial
right of the complaining party.
Statutes: Appeal and Error. When an
appellate court construes statutes relating to the same
subject matter, it should do so in a manner that maintains a
sensible and consistent scheme and gives effect to every
Statutes. It is not within the province of a
court to read a meaning into a statute that is not warranted
by the language; neither is it within the province of a court
to read anything plain, direct, or unambiguous out of a
Prejudgment Interest: Statutes. Neb. Rev.
Stat. §§ 45-103.02 and 45-104 (Reissue 2010) are
alternate and independent statutes authorizing the recovery
of prejudgment interest.
Prejudgment Interest. Neb. Rev. Stat. §
45-104 (Reissue 2010) contains no requirement that the claims
described therein must also be liquidated in order to recover
Judgments: Interest: Time. Prejudgment
interest under Neb. Rev. Stat. § 45-104 (Reissue 2010)
ends, and post judgment interest begins, on the date of entry
from the District Court for Sarpy County: Stefanie A.
Neb. 282] Molly J. Miller, Patrick J. Sullivan, and Travis M.
Jacott, of Adams & Sullivan, PC, L.L.O., for appellant.
S. Trent-Vilim, Daniel P. Chesire, Brian J. Brislen, and Adam
R. Feeney, of Lamson, Dugan & Murray, L.L.P, for
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
to an oral agreement, David Weyh and Barry Gottsch farmed
together for approximately 10 years and agreed to share net
profits equally. When the farming operation ended and it was
time to settle up, a dispute arose and Weyh filed this action
seeking to recover his share of the operation's profits.
After a bench trial, the district court found that Gottsch
owed Weyh $1, 214, 056.73 in unpaid profits. It also found
that Weyh was entitled to prejudgment interest in the amount
of $972, 582.10 pursuant to Neb. Rev. Stat. § 45-104
appealed, and we granted bypass to address the assignments of
error related to recovery of prejudgment interest under
Nebraska law. On that issue, Gottsch argues that all requests
for prejudgment interest must comply with Neb. Rev. Stat.
§ 45-103.02 (Reissue 2010), and he contends it was error
to award prejudgment interest under § 45-104 without
also finding Weyh's claim was liquidated under §
45-103.02(2). Weyh disagrees, and argues §§
45-103.02(2) and 45-104 provide alternate routes for
recovering prejudgment interest. Weyh contends that because
his claim is the type of claim enumerated in § 45-104,
prejudgment interest was properly awarded.
examining the statutory language and legislative history of
the pertinent statutes, and considering our competing lines
of authority on prejudgment interest, we hold that §
45-103.02(2) is not the exclusive means of recovering [303
Neb. 283] prejudgment interest in Nebraska, and we disapprove
of prior cases holding otherwise. We clarify that
§§ 45-103.02 and 45-104 provide separate and
independent means of recovering prejudgment interest, and we
hold that when a claim is of the types enumerated in §
45-104, then prejudgment interest may be recovered without
regard to whether the claim is liquidated. We thus find no
error in applying § 45-104 to award prejudgment interest
to Weyh, but we agree with Gottsch there was an error in
calculating prejudgment interest. We affirm the judgment as
October 2004, Weyh and Gottsch entered into an oral agreement
to farm together. They agreed Weyh would provide the labor
and manage the day-to-day farming operations. They agreed
Gottsch would provide the equipment and some occasional labor
and would handle all the financial aspects of the farming
operation. They agreed the operation would farm some land
owned by Gottsch and some land owned by third parties. They
agreed the operation would continue from year to year until
one of them decided to end it, and they agreed to share the
net profits of the farming operation equally. Their agreement
was never reduced to writing.
and Gottsch farmed together continuously through the 2014
harvest. During that period, Weyh performed work on the farm
nearly every day and also hired and supervised additional
laborers. Weyh kept a general log of his daily farming
activities. He did not take a salary or wage from the farming
operation, but Gottsch occasionally provided Weyh with what
the parties described as "draws against future
profits." Both parties understood those draws were being
advanced against Weyh's share of the farming
operation's net profits once they finally "settled
up." While the farming operation was ongoing, Gottsch
and Weyh did not settle up at the end of each farming year.
Instead, it was understood that when one or both of them
decided to end the farming operation, Gottsch [303 Neb. 284]
would provide an accounting and the net profits would then be
determined and distributed equally.
purchased the planting and harvesting equipment for the
farming operation, and he was responsible for marketing the
crops and keeping the farming operation's books. All
proceeds from the farming operation went into bank accounts
controlled exclusively by Gottsch. Gottsch also used these
accounts for his personal expenses and for some of his other
business endeavors. Gottsch's bookkeeper, Debra Wetzel,
maintained the books for the farming operation and for
Gottsch's other businesses. After the farming operation
ended, Wetzel prepared a profit-and-loss statement for the
entire farming operation. While the farming operation was
ongoing, there was no formal accounting prepared.
October 2014, Gottsch notified Weyh he had decided to end the
farming operation and it was time to "settle
up.'' Shortly thereafter, Gottsch told Weyh the
entire farming operation generated net profits of $1, 518,
115.65. Gottsch arrived at that figure by expensing to the
farming operation, among other things, $1, 813, 164.15 for
accumulated rent on land owned by Gottsch and farmed by the
operation, and $144, 161.04 for earnings paid to one of
Gottsch's employees, Philip Kollars, who sometimes worked
for the farming operation. Weyh disputed both these expenses,
claiming neither was properly attributed to the farming
December 2014, Weyh sued Gottsch in the district court for
Sarpy County, Nebraska, seeking to recover his share of the
net profits of the farming operation. Weyh's complaint
set out the parties' oral agreement and alleged several
theories of recovery, including breach of contract. The
complaint alleged the farming operation's net profits
totaled $3, 475, 440.70, and Weyh sought to recover half of
that amount plus prejudgment interest.
answer admitted he had failed to pay Weyh the agreed upon
one-half share of net profits and admitted he was [303 Neb.
285] in possession of money belonging to Weyh. But Gottsch
alleged that a profit-and-loss statement had not yet been
completed for the 2014 crop year, and further alleged that a
final accounting and payment had been "hindered" by
Weyh's demands to change the profit-and-loss statement.
Gottsch admitted that his "failure to perform his
obligations under the contract has damaged [Weyh] in an
amount to be determined following a full accounting,"
but he denied that Weyh was entitled to recover the amount
sought in the complaint.
Gottsch provided Weyh a final accounting that included the
2014 crop year. The final accounting showed the entire
farming operation generated net profits of $1, 079, 003.58.
Included among the expenses of the farming operation were $2,
130, 657.21 in rent to Gottsch for land owned by him and
farmed by the operation, and $208, 452.64 in earnings paid to
Weyh received the final accounting from Gottsch, he amended
his complaint to expressly accept the final accounting, with
two exceptions: Weyh alleged that neither the $2, 130, 657.21
in accumulated rent to Gottsch nor the $208, 452.64 in
earnings paid to Kollars were properly expensed to the
farming operation. The amended complaint sought a declaratory
judgment to that effect and alleged separate theories of
recovery for breach of contract, fraudulent
misrepresentation, fraudulent concealment, unjust enrichment/
constructive trust, money received and retained, and breach
of the implied covenant of good faith and fair dealing. On
each theory of recovery, Weyh's amended complaint sought
recovery of his one-half share of the net profits plus
filed an answer to the amended complaint and later was
permitted to amend his answer. The amended answer admitted
the parties had orally agreed to farm together and had agreed
to share equally in the profits and losses of the farming
operation. But Gottsch denied that Weyh was entitled [303
Neb. 286] to recover the amount sought in the amended
complaint, and he raised several affirmative defenses,
including that Weyh's claims were time barred under Neb.
Rev. Stat. §§ 25-211 and 25-212 (Reissue 2016).
the 3-day bench trial, the primary disputes were (1) whether
Weyh's claims were time barred and (2) how to treat the
two contested expenses: rent to Gottsch and earnings to
Kollar. Both parties testified on these issues.
to Weyh, he and Gottsch decided to farm together while they
were standing on a hillside in 2004. At that time, they
agreed Weyh would provide the farm labor and Gottsch would
provide the land, the equipment, and the financial
management. They agreed to share net profits equally, and
they agreed to farm together "until we both decided to
quit." Weyh testified they never agreed that Gottsch
would be paid cash rent in addition to a share of the
fall of 2014, Gottsch told Weyh he was ending the farming
operation. After learning this, Weyh demanded a full
accounting, and Gottsch agreed it was time to "settle
up." Weyh claims Gottsch remarked at the time "I
owe you so much money" and suggested that with the all
the money he was owed, Weyh could start his own operation if
he wanted to continue farming.
final accounting was prepared, Weyh accepted it, with the
exception of two expenses: $2, 130, 657.21 in rent to Gottsch
and $208, 452.64 in earnings paid to Kollars. According to
Weyh, neither of these expenses were properly attributed to
the farming operation.
testified that Gottsch never brought up the topic of rent
until 2006, when they met to go over Gottsch's financial
notes. During that 2006 meeting, Weyh noticed that Gottsch
had listed, as a farm expense, rent to himself on the land he
owned. Weyh told Gottsch that was not a proper farm expense
[303 Neb. 287] under their agreement, and Gottsch replied
that "we'll figure it out." Weyh testified the
two did not discuss rent again, and Weyh did not press the
issue further. Weyh testified that when he and Gottsch farmed
land owned by others, the farming operation entered into
written lease agreements for cash rent, and that none of
those agreements also included crop share.
also testified about a hunting operation he and Gottsch
entered into in 2005, again pursuant to an oral agreement.
Initially, they agreed Gottsch would contribute the property
upon which hunts would take place, Weyh would serve as the
hunting guide, and they would split net profits equally.
Under that initial agreement, Gottsch did not charge rent for
the use of his land. Later, they modified the agreement so
that Weyh paid Gottsch cash rent for the use of his land, and
Weyh retained 100 percent of the profits from the hunts. At
no time during the operation of the parties' hunting
business did Gottsch receive both cash rent and a share of
objected to expensing Kollars' earnings to the farming
operation. According to Weyh, Gottsch hired Kollars in 2010
to take care of Gottsch's personal and rental properties,
and at that time, Gottsch assured Weyh that Kollars'
wages would not come out of the farming operation. Kollars
performed work on Gottsch's cars and pool and several of
Gottsch's properties. Over time, Gottsch asked Kollars to
do maintenance work on some of the farming equipment too.
Weyh objected to Kollars' working for the farming
operation, as he did not think Kollars' help was needed.
At some point, Kollars told Weyh that Gottsch had instructed
him to charge at least 50 percent of his time to the farming
operation. Weyh objected to that practice because he did not
think Kollars was really working for the farm, and Kollars
replied, "I only do what I'm told."
to Gottsch, when he and Weyh agreed to farm together, they
also agreed that rent on Gottsch's land would be a farm
expense. Gottsch did not dispute that he and Weyh [303 Neb.
288] discussed farming together while they were on the
hillside in 2004, but he thought the agreement on rent
occurred during a later conversation at the "brown
shop" sometime before the 2005 planting season. Gottsch
admitted that his recollection of that conversation was
vague, but he recalled telling Weyh he would "put up all
the money and all the equipment" but "I got to
charge rent." Gottsch testified that one of the reasons
he started farming, and agreed to purchase all the equipment,
was that he had sold his share of a family business and
wanted to manage his capital gains exposure.
testified that after the 2005, 2006, and 2007 crop years, he
provided Weyh with some handwritten financial notes that
listed, as a farm expense, rent on Gottsch's land.
Gottsch did not recall that Weyh ever "confronted"
him about including rent as an expense of the farming
testified that "just before the lawsuit" was filed,
he hired an agronomist to help him set the cash rents for all
of the prior farming years. At that time, he also modified
the rents for the 2005, 2006, and 2007 crop years. Gottsch
admitted that he never discussed the amount of rent with Weyh
prior to any crop year and that Weyh had "zero"
input on the amount of rent. Gottsch was not aware of any
other farming operation where the landowner would get cash
rent plus half the crop share, and he admitted it was common
to agree in advance on the amount of rent so the farm tenant
could decide whether to accept or reject the rent before the
crop year. Gottsch admitted Weyh did not have such an
opportunity before any of the crop years for which Gottsch
was seeking rent.
the "draws" paid to Weyh, Gottsch testified there
was no set schedule, interval, or timeframe for draws.
Instead, Weyh would ask for a draw when he needed it and
Gottsch would "just round it up to whatever I felt like
would be good," because he knew Weyh "had money
coming." Gottsch testified that the parties did not take
stock of their profits and losses after each crop year and
that they never agreed to settle up after each year. Gottsch
admitted that he was "terrible [303 Neb. 289] at
settling up" and that when he decided to end the farming
operation in the fall of 2014, he knew an accounting needed
to be done for "the entirety of the operation."
2010, Gottsch hired Kollars to perform maintenance and
repairs on Gottsch's various properties and vehicles.
Gottsch also directed Kollars to do "some" work for
the farming operation. When Gottsch informed Weyh that
Kollars would be available to help with the farming
operation, Weyh disapproved, because "he wanted his guys
helping." Gottsch told Kollars to report his time
directly to Wetzel, Gottsch's bookkeeper, and he denied
that he ever instructed Kollars to attribute a certain amount
of his time to the farming operation.
2014, Wetzel attributed most of Kollars' time to the
farming operation. At trial, Gottsch admitted that was not
correct. Gottsch testified that Kollars performed
"some" work for the farm in 2014, but Gottsch did
not think there was "any way he had that high of a
percentage with the farm." Gottsch admitted that, other
than what Kollars reported to Wetzel, he had no way of
knowing what percentage of Kollars' time was attributable
to the farming operation.
2006, Wetzel began keeping the books for Gottsch's
personal and business entities, including those related to
the farming operation. Wetzel did not keep separate accounts
for the farming operation and Gottsch's personal and
other business affairs; all of Gottsch's financial
information went into a single account for bookkeeping
purposes, with separate classifications. Using a business
software application, Wetzel would, as much as possible,
enter "farm" expenses contemporaneously as they
occurred. Sometimes she was provided information on expenses
from Gottsch, and other times from Weyh. Wetzel described
Weyh's recordkeeping practices as "pretty
detailed" and Gottsch's as "[p]retty bad."
testified that while the farming operation was ongoing,
Gottsch never asked her to include rent on his land as a farm
expense. It was not until the farming operation ended in [303
Neb. 290] 2014 that Gottsch made such a request, and at that
time, he told Wetzel that when she prepared the final
accounting, rent on the land he owned "needed to be part
of that equation." In response, Wetzel made a list of
all the property Gottsch owned "so he could establish
what he wanted to charge for rent." Wetzel testified
that after she prepared the accounting in early 2015, Gottsch
was still "adjusting the rents that he thought he should
charge on properties he owned."
to Wetzel, Kollars began working for Gottsch in 2010 and all
of Kollars' W-2 wage and tax statements listed Gottsch as
the employer. Kollars was instructed by Gottsch to call or
text Wetzel each week to report what percentage of his work
was attributable to the farming operation and what percentage
was attributable to Gottsch's other personal and business
ventures. When Kollars did not contact Wetzel to report his
percentages for the week, she would automatically attribute
all of Kollars' time to the farming operation.
2014, Kollars gave Wetzel no information about how his work
should be allocated, so Wetzel attributed all of Kollars'
earnings as an expense of the farming operation. Wetzel's
records also attributed a portion of Kollars' earnings in
2010 through 2013 to the farming operation, but the records
did not include an hourly breakdown, and Wetzel had no
personal knowledge of how much time Kollars actually devoted
to the farming operation. From 2010 through 2014, the total
amount of Kollars' earnings expensed to the farming
operation was $208, 452.64.
District Court's Findings
Claims Not Time Barred
district court rejected Gottsch's contention that any of
Weyh's claims were time barred. It found the parties
intended the farming operation to be ongoing until one or
both of them decided to end it, at which time they would
settle up and divide net profits equally. The court found
that while the farming operation was ongoing, the parties did
not distribute "draws" on any regular basis and
that there was no agreement to do [303 Neb. 291] so. Nor was
there any agreement to settle up after each crop year. The
court thus reasoned that Weyh's claim for breach of
contract did not accrue until late 2014, because that was the
point at which the farming operation ended and it was time to
settle up, and Gottsch failed to pay Weyh his share of the
net profits. Because Weyh's suit against Gottsch was
filed just a few months after the claim accrued, the court
found it was not time barred.
Rent to Gottsch
issue of rent, the court stated "[t]he crux of the
issue" was one of credibility, and it ultimately found
"there was no credible evidence that the parties agreed
[Gottsch] would charge rent for properties he owned that the
farming operation farmed." The court reasoned the
parties' course of conduct supported this finding, as it
was undisputed that Gottsch unilaterally set the rent amounts
for the majority of the farming years after the farming
operation had ended and that Gottsch never sought input or
agreement from Weyh on rent amounts during the course of the
farming operation. The court thus concluded that rent to
Gottsch was not part of the parties' oral agreement and,
consequently, entered a declaratory judgment that rent to
Gottsch was not a proper expense of the farming operation.
court found the evidence did not support including
Kollars' earnings as a farm expense. First, the court
found the parties' oral agreement did not include
expensing Kollars' earnings to the farming operation,
finding it significant that Gottsch expressly told Weyh that
Kollars' time would not be expensed to the farming
operation. Additionally, the court found that neither Gottsch
nor Wetzel had firsthand knowledge of how much of
Kollars' work was actually devoted to the farming
operation. That lack of knowledge, combined with admittedly
incorrect information in the final accounting, left the court
with "no way of knowing how many hours, if any, [303
Neb. 292] . . . Kollars worked for the farming operation, as
opposed to for [Gottsch] personally." The court found
this failure of proof prevented Gottsch from claiming any
portion of Kollars' earnings as a farm expense for any
farming year, and entered a declaratory judgment that
Kollars' earnings were not properly expensed to the
Breach of Contract
court found that Gottsch breached the parties' oral
contract by failing to pay Weyh the full amounts owed to him
when the operation ended and by providing an accounting that
improperly listed rent to Gottsch and earnings to Kollars as
expenses of the farming operation. Using the figures from
Gottsch's final accounting that Weyh had accepted, the
court found the farming operation's net profits were $3,
418, 113.45, and concluded Weyh was entitled to half this
amount, less sums he had previously taken in
"draws" over the years. Ultimately, the court
determined Weyh was entitled to damages for breach of
contract in the amount of $1, 214, 056.73. The court also
found in Weyh's favor on several other theories of
recovery and awarded identical damages under each theory.
original and amended complaints sought prejudgment interest,
and in closing argument, Weyh suggested he was entitled to
prejudgment interest under either of two theories: because
his claim was liquidated under § 45-103.02(2) or because
his claim fit within those described in § 45-104.
Gottsch opposed an award of prejudgment interest, arguing it
was not recoverable either because Weyh's claim was not
liquidated or because it would be too difficult to determine
the date on which Weyh's entitlement to prejudgment
district court concluded Weyh was entitled to prejudgment
interest "in the amount of 12% per annum under Neb. Rev.
Stat. § 45-104" and awarded $972, 582.10 in
prejudgment interest. The order does not explain how this
amount [303 Neb. 293] was calculated, but it is clear the
court relied exclusively on § 45-104 in awarding
prejudgment interest. It found that Weyh had met his burden
of proof under § 45-104 by showing that Gottsch
received, into his personal bank account, Weyh's share of
the net profits from the farming operation and retained such
sums after they should have been paid to Weyh. In addressing
prejudgment interest, the court's order did not discuss
§ 45-103.02(2) or make any findings as to whether
Weyh's claim was liquidated or unliquidated.
Appeal and Petition to Bypass
timely appealed and moved to bypass the Nebraska Court of
Appeals, arguing this case presents an important and
unresolved issue of statutory interpretation regarding the
recoverability of prejudgment interest under Nebraska law.
Weyh agrees, and both parties seek clarification regarding
whether all prejudgment interest awards must satisfy §
45-103.02, or whether an award of prejudgment interest may be
based only on § 45-104.
several prior appeals, parties have raised the issue of
whether §§ 45-103.02(2) and 45-104 are separate and
independent means of obtaining prejudgment interest or
whether they are interrelated and, if so, how. But until now,
the issue has been presented in cases where the facts did not
satisfy one or both statutes and, consequently, the tension
between §§ 45-103.02(2) and 45-104 has not been
directly addressed by this court. We granted the petition to
bypass to address that issue.
ASSIGNMENTS OF ERROR
assigns, consolidated and restated, that the district court
erred in (1) finding the breach of contract claim accrued
[303 Neb. 294] when the farming operation ended and was not
time barred, (2) finding the parties had not agreed that rent
to Gottsch or earnings to Kollars were proper expenses of the
farming operation. (3) finding an agreement to charge rent on
Gottsch's property would violate the statute of frauds,
(4) relying on evidence of the parties' previous hunting
operation, (5) excluding expert testimony offered by Gottsch,
(6) finding in favor of Weyh on several ...