Streck, Inc. v. Ryan Family , 297 Neb. 773 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
297 Nebraska R eports
STRECK, INC. v. RYAN FAMILY
Cite as 297 Neb. 773
Streck, Inc., a Nebraska corporation, appellee, v.
Ryan Family, L.L.C., appellee, and Stacy Ryan,
individually and derivatively on behalf of
Ryan Family, L.L.C., appellant.
___ N.W.2d ___
Filed September 15, 2017. No. S-16-664.
1. Interventions: Appeal and Error. Whether a party has the right to
intervene in a proceeding is a question of law. On a question of law,
an appellate court is obligated to reach a conclusion independent of the
determination reached by the court below.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Interventions: Final Orders: Appeal and Error. An order denying
intervention is a final order for purposes of appeal.
4. Interventions: Final Orders. Neb. Rev. Stat. § 25-1315 (Reissue 2016)
does not modify Nebraska’s final order jurisprudence as it regards orders
denying intervention.
5. Interventions. As a prerequisite to intervention under Neb. Rev. Stat.
§ 25-328 (Reissue 2016), the intervenor must have a direct and legal
interest of such character that the intervenor will lose or gain by the
direct operation and legal effect of the judgment which may be rendered
in the action.
6. ____. An indirect, remote, or conjectural interest in the result of a suit
is not enough to establish intervention as a matter of right. Simply hav-
ing a claim that arises out of the same facts as the claims at issue in
the litigation does not constitute having a sufficient interest to support
intervention.
7. Interventions: Pleadings. A person seeking to intervene must allege
facts showing that he or she possesses the requisite legal interest in the
subject matter of the action.
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8. ____: ____. For purposes of ruling on a motion for leave to intervene,
a court must assume that the intervenor’s factual allegations set forth in
the complaint are true.
9. ____: ____. A prospective intervenor can raise his or her claims or
defenses, but those claims or defenses must involve the same core issue
as the claims between the existing parties. Intervenors can raise only
issues that sustain or oppose the respective contentions of the origi-
nal parties.
10. Interventions. An intervenor is bound by any determinations that were
made before he or she intervened in the action. In other words, an inter-
venor must take the suit as he or she finds it.
11. Corporations: Contracts. The Nebraska Uniform Limited Liability
Company Act is a default statute; subject to certain enumerated excep-
tions, the act governs only when the operating agreement is silent.
12. ____: ____. Under the Nebraska Uniform Limited Liability Company
Act, a member of a limited liability company is deemed to assent to the
operating agreement.
13. Corporations. Under the Nebraska Uniform Limited Liability Company
Act, in a manager-managed limited liability company, matters relating
to the activities of the company are decided exclusively by the managers
unless otherwise expressly provided in the act.
14. Corporations: Actions: Interventions. The fact that a member of
a limited liability company might experience reduced distributions,
depending on the outcome of a lawsuit against the company, does not
give the member a direct and legal interest in the lawsuit sufficient to
support intervention.
15. ____: ____: ____. For purposes of determining the right to intervene, a
court generally treats actions by a member of a limited liability company
in the same manner as actions by a shareholder of a corporation.
16. Corporations: Actions: Parties. As a general rule, a shareholder may
not bring an action in his or her own name to recover for wrongs done
to the corporation or its property. Such a cause of action is in the cor-
poration and not the shareholders. The right of a shareholder to sue is
derivative in nature and normally can be brought only in a representative
capacity for the corporation.
17. Corporations: Actions: Parties: Interventions. When a corporation
cannot or will not protect the interests of the stockholders, a stock-
holder may intervene in an action on behalf of the corporation for the
shareholder’s own protection. However, this is a very limited excep-
tion to the general rule that a shareholder may not bring an action in
his or her own name to recover for wrongs done to the corporation or
its property.
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297 Nebraska R eports
STRECK, INC. v. RYAN FAMILY
Cite as 297 Neb. 773
18. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Sarpy County: William
B. Zastera, Judge. Affirmed.
Paul Heimann, Bonnie M. Boryca, and Karen M. Keeler, of
Erickson & Sederstrom, P.C., for appellant.
John D. Stalnaker and Aimee K. Cizek, of Stalnaker, Becker
& Buresh, P.C., for appellee Ryan Family, L.L.C.
Thomas H. Dahlk and Victoria H. Buter, of Kutak Rock,
L.L.P., and Ronald E. Reagan, of Reagan, Melton & Delaney,
L.L.P., for appellee Streck, Inc.
Heavican, C.J., Wright, Cassel, Stacy, and Funke, JJ.
Per Curiam.
In January 2016, Streck, Inc., filed a complaint against
the Ryan Family, L.L.C. (L.L.C.), in the district court for
Sarpy County. Streck’s complaint alleged the L.L.C. breached a
lease agreement containing an option to purchase real property
and sought specific performance. The L.L.C. responded and
defended the action. In June, a member of the L.L.C. moved
to intervene in her own behalf and on behalf of the L.L.C.
She appeals from the district court’s order denying her motion.
We affirm.
I. FACTS
1. Parties
Streck is a Nebraska corporation with its principal place of
business in La Vista, Sarpy County, Nebraska. The L.L.C. is
a Nebraska limited liability company composed of six mem-
bers of the Ryan family, including Stacy Ryan (Ryan). The
L.L.C.’s only asset is real property located in La Vista, which
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Cite as 297 Neb. 773
it leases to Streck, and the cash generated from the rental of
that property.
2. Lease Agreement
The L.L.C. leased the property to Streck pursuant to an
agreement dated December 1999 and subsequently amended.
The lease gave Streck an option to purchase the property from
the L.L.C. based on certain conditions. Streck claims it met
the conditions and properly exercised the option. Based on the
date Streck exercised the option, closing should have occurred
no later than January 3, 2016. When no closing occurred,
Streck filed suit against the L.L.C.
3. Lawsuit Between Streck
and L.L.C.
Streck filed its complaint January 13, 2016, in the district
court. It sought an order declaring the L.L.C. in breach of
the lease and ordering specific performance of the option to
purchase.
The L.L.C. operating agreement vests all management duties
in a management board consisting of comanagers Wayne Ryan
and Connie Ryan. After being served with the complaint, the
comanagers of the L.L.C. filed an application for appointment
of a receiver to represent the L.L.C., citing a conflict which
they described as follows:
Co-Manager Dr. Wayne Ryan believes the [L.L.C.] must
oppose Streck’s Complaint as he believes Streck does not
hold a valid Option to Purchase the Property due in part
to an Event of Default pursuant to the Lease Agreement.
Co-Manager Connie Ryan disagrees with Dr. Ryan, and
the Co-Managers have been unable to agree on the man-
agement of the [L.L.C.]
. . . Co-Manager Connie Ryan has declined Dr. Ryan’s
request to recuse herself from the management of the
[L.L.C.], and Dr. Ryan has similarly declined to allow
Connie Ryan to serve as sole Manager of the [L.L.C.] As
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a result of the Co-Managers’ disagreements, the [L.L.C.]
is unable to retain legal counsel to respond to Streck’s
Complaint in the above-captioned case.
. . . In light of their disagreement, the Co-Managers
believe that appointment of [a] Receiver for the [L.L.C.]
is necessary and appropriate to respond to Streck’s
Complaint and avoid default for failure to Answer.
No party opposed the comanagers’ request, and the court
appointed a receiver to represent the L.L.C.’s interest in the
lawsuit.
On March 3, 2016, the receiver, on behalf of the L.L.C.,
filed an answer and counterclaim. The counterclaim alleged
that Streck was in default of the lease agreement when it
attempted to exercise the option and that the default voided
Streck’s right to exercise the option.
On June 15, 2016, Streck moved for partial summary judg-
ment, asking the court to find as a matter of law that it was
not in default at the time it exercised the option to purchase.
At the hearing on the partial summary judgment motion, the
parties offered a joint stipulation, which the court received.
Posthearing briefing was permitted, and the matter was set for
further proceedings on July 5.
4. Complaint in Intervention
On June 22, 2016, Ryan filed a “Complaint in Intervention”
seeking to intervene “on her own behalf and derivatively on
behalf of the [L.L.C.]” On June 27, she moved to continue
the summary judgment hearing scheduled for July 5. On June
29, Ryan filed a “Motion for Order Permitting Complaint in
Intervention” asking for “an order permitting her to intervene
[and] allowing her Complaint in Intervention, filed and served
on June 22, 2016.”
All of Ryan’s motions were taken up at a hearing on July
1, 2016. On July 5, the court entered two orders. One order
overruled Ryan’s motion to intervene, and the other over-
ruled her motion to continue the summary judgment hearing.
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STRECK, INC. v. RYAN FAMILY
Cite as 297 Neb. 773
Neither order set forth the court’s reasoning. Ryan appeals
from both orders. We moved the appeal to our docket on our
own motion.1
II. ASSIGNMENTS OF ERROR
Ryan assigns, restated, that the district court erred in (1)
disallowing her complaint in intervention; (2) denying her
motion to intervene, including her request for access to the
parties’ prior discovery and her request to conduct additional
discovery; and (3) failing to continue the hearing on Streck’s
motion for summary judgment or to reopen the summary
judgment record to allow her an opportunity to conduct nec-
essary discovery and to participate in the summary judgment
proceedings.
III. STANDARD OF REVIEW
[1] Whether a party has the right to intervene in a proceed-
ing is a question of law.2 On a question of law, an appellate
court is obligated to reach a conclusion independent of the
determination reached by the court below.3
IV. ANALYSIS
1. Jurisdiction
[2,3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.4 Since at least 1985, we
have held that an order denying intervention is a final order for
purposes of appeal.5 Streck acknowledges this, but contends
that our final order jurisprudence has failed to consider the
1
Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
2
Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).
3
Id.
4
Trainum v. Sutherland Assocs., 263 Neb. 778, 642 N.W.2d 816 (2002).
5
Basin Elec. Power Co-op v. Little Blue N.R.D., 219 Neb. 372, 363 N.W.2d
500 (1985).
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effect of the Legislature’s adoption in 2000 of Neb. Rev. Stat.
§ 25-1315 (Reissue 2016). Section 25-1315(1) provides:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties
only upon an express determination that there is no just
reason for delay and upon an express direction for the
entry of judgment. In the absence of such determina-
tion and direction, any order or other form of decision,
however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all
the parties shall not terminate the action as to any of the
claims or parties, and the order or other form of deci-
sion is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
Streck argues that the order denying Ryan’s motion to intervene
did not meet the requirements of § 25-1315, because it did not
contain an express determination that there was no just reason
for delay and it did not expressly direct entry of judgment.
[4] We conclude § 25-1315 does not modify our final order
jurisprudence as it regards orders denying intervention. The
plain language of the statute references claims, counterclaims,
cross-claims, and third-party claims, but does not mention
complaints in intervention. Moreover, even after § 25-1315
was enacted, we continued to apply our existing final order
jurisprudence to orders denying intervention,6 and we see no
principled basis to depart from that precedent. For these rea-
sons, we conclude that our final order jurisprudence regarding
orders denying intervention was not superseded by § 25-1315
6
See, Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006);
Douglas Cty. Sch. Dist. 0001 v. Johanns, 269 Neb. 664, 694 N.W.2d 668
(2005).
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and that the order denying Ryan’s motion to intervene is a
final, appealable order. We have jurisdiction over this appeal,
and Streck’s arguments to the contrary are without merit.
2. Intervention
(a) Legal Framework
The right to intervene is granted by statute in Nebraska.
Neb. Rev. Stat. § 25-328 (Reissue 2016) provides:
Any person who has or claims an interest in the mat-
ter in litigation, in the success of either of the parties to
an action, or against both, in any action pending or to be
brought in any of the courts of the State of Nebraska, may
become a party to an action between any other persons
or corporations, either by joining the plaintiff in claiming
what is sought by the complaint, or by uniting with the
defendants in resisting the claim of the plaintiff, or by
demanding anything adversely to both the plaintiff and
defendant, either before or after issue has been joined in
the action, and before the trial commences.
Ryan bases her intervention rights solely on § 25-328, so we
begin by reviewing the legal propositions governing such
intervention.
[5-8] As a prerequisite to intervention under § 25-328, the
intervenor must have a direct and legal interest of such charac-
ter that the intervenor will lose or gain by the direct operation
and legal effect of the judgment which may be rendered in
the action.7 An indirect, remote, or conjectural interest in the
result of a suit is not enough to establish intervention as a mat-
ter of right.8 Simply having a claim that arises out of the same
facts as the claims at issue in the litigation does not constitute
having a sufficient interest to support intervention.9 Therefore,
a person seeking to intervene must allege facts showing that
7
Spear T Ranch v. Knaub, supra note 6.
8
Id.
9
See Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959).
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he or she possesses the requisite legal interest in the subject
matter of the action.10 For purposes of ruling on a motion for
leave to intervene, a court must assume that the intervenor’s
factual allegations set forth in the complaint are true.11
[9,10] Our jurisprudence also recognizes some practical
limitations on the right to intervene. A prospective interve-
nor can raise his or her claims or defenses, but those claims
or defenses must involve the same core issue as the claims
between the existing parties.12 Intervenors can raise only issues
that “sustain or oppose the respective contentions of the [origi-
nal parties].”13 The intervenor is bound by any determinations
that were made before he or she intervened in the action.14 In
other words, “‘[a]n interven[o]r must take the suit as he finds
it . . . .’”15
With these principles in mind, we review Ryan’s complaint
in intervention to determine whether she has alleged a direct
and legal interest sufficient to support intervention.
(b) Ryan’s Complaint to Intervene
Ryan alleges she has a nearly 20-percent interest in the
L.L.C. as a member thereof. She further alleges the interests
of the L.L.C. are not being “fully protected” by the receiver,
and she alleges the receiver should have asserted additional
claims and defenses on behalf of the L.L.C. She also seeks by
intervention to challenge the appointment of the receiver and to
present a claim that the comanagers of the L.L.C. breached the
operating agreement by requesting appointment of a receiver.
10
Spear T Ranch v. Knaub, supra note 6.
11
Id.
12
See Ruzicka v. Ruzicka, supra note 2.
13
State ex rel. Nelson v. Butler, 145 Neb. 638, 650, 17 N.W.2d 683, 691
(1945).
14
See School Dist. of Gering v. Stannard, 196 Neb. 367, 242 N.W.2d 889
(1976).
15
Drainage District v. Kirkpatrick-Pettis Co., 140 Neb. 530, 538, 300 N.W.
582, 587 (1941).
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Before we address whether Ryan has shown a direct and
legal interest sufficient to allow her to intervene, we note
that to the extent Ryan seeks by intervention to challenge the
appointment of the receiver or allege the L.L.C. managers have
breached the operating agreement, she is attempting improp-
erly to expand the scope of the litigation. As stated earlier,
the claims or defenses of an intervenor must involve the same
core issues as the claims between the existing parties,16 and
intervenors can raise only issues that “sustain or oppose the
respective contentions of the [original parties].”17 Here, the
dispute between the original parties is over whether there was a
breach of the lease agreement. The suit does not involve either
the validity of the appointment of the receiver or any potential
breach of the operating agreement. Thus, Ryan’s claims chal-
lenging the appointment of the receiver or the comanagers’
breach of the operating agreement cannot provide a basis for
her right to intervene in this action, and we will not address
those claims further.
(i) No Right to Intervene
in Ryan’s Own Behalf
To support her claim of a direct and legal interest sufficient
to support the right to intervene in her own behalf, Ryan argues
she is a 20-percent member of the L.L.C. and stands to lose
or gain financially depending on how the court resolves the
dispute between the L.L.C. and Streck. Before addressing this
argument, we clarify the nature of Ryan’s rights as a member
of the L.L.C.
[11] Ryan’s rights in that regard are governed by the
Nebraska Uniform Limited Liability Company Act (LLC Act)18
and the terms of the L.L.C.’s operating agreement. Subject to
certain enumerated exceptions not relevant here, most matters
16
See Ruzicka v. Ruzicka, supra note 2.
17
State ex rel. Nelson v. Butler, supra note 13, 145 Neb. at 650, 17 N.W.2d
at 691.
18
Neb. Rev. Stat. § 21-101 et seq. (Reissue 2012 & Cum. Supp. 2016).
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are governed by the operating agreement entered into by the
members of the L.L.C., and the LLC Act governs only when
the operating agreement is silent.19
[12,13] As pertinent here, the LLC Act provides that a
member of a limited liability company is deemed to assent to
the operating agreement.20 And, specifically, “[i]n a manager-
managed limited liability company, . . . [e]xcept as otherwise
expressly provided in the [LLC Act], any matter relating to
the activities of the company is decided exclusively by the
managers.”21
The L.L.C. operating agreement, a copy of which was
attached to Ryan’s complaint in intervention, provides:
“The Members of the Company vest the management of the
Company in a Management Board, which shall have sole
power and authority to conduct the affairs of the Company . .
. .” The operating agreement also gives the managers the right
“[t]o employ . . . managing agents or other experts to perform
services for the Company and . . . [t]o enter into any and all
other agreements on behalf of the Company, with any other
Person for any purpose, in such forms as the Managers may
approve.” Based on the provisions of the LLC Act and the
operating agreement, Ryan has no legal authority to conduct
the affairs of the L.L.C.
Ryan contends that despite being a nonmanaging member
of the L.L.C., she nevertheless has a direct and legal interest
in the suit which entitles her to intervene, because she stands
to lose or gain financially depending on how the court resolves
the dispute between the L.L.C. and Streck. We considered, and
rejected, a similar argument in Steinhausen v. HomeServices
of Neb.22
19
See § 21-110.
20
§ 21-111(b).
21
§ 21-136(c)(1) (emphasis supplied).
22
Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816
(2015).
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There, the sole member of a limited liability company
(LLC) filed a complaint on behalf of himself and the LLC,
alleging a third party had engaged in tortious interference with
the business relationships or expectancies of the LLC. We held
that members of an LLC cannot, in their own behalf, maintain
a claim for tortious interference with the business relationships
or expectancies of an LLC, because such a claim can be main-
tained only by the parties to the business relationship.23 We
specifically reasoned that even though a member of an LLC
might experience reduced distributions from the LLC if the
LLC’s relationships are interfered with, it did not convert the
claim into one in behalf of the member personally.24
[14] Here, neither the operating agreement nor the LLC
Act gives Ryan the authority to speak for, or make decisions
for, the L.L.C., even in matters that may indirectly affect her
financial interests. That power is vested exclusively with the
managers of the L.L.C. and anyone they appoint pursuant to
their power to employ others to perform services for the L.L.C.
The fact that Ryan, as a member of the L.L.C., may experi-
ence reduced distributions, depending on the outcome of the
lawsuit against the L.L.C., does not give her a direct and legal
interest in the lawsuit sufficient to support intervention in her
own behalf.
Moreover, Ryan does not allege she was owed a special
duty by the receiver separate and distinct from the duty owed
to the L.L.C.25 Nor does she allege any financial injury or
damage sustained in her individual capacity that would be
distinct from that sustained by other L.L.C. members.26 Under
these circumstances, Ryan’s membership interest in the L.L.C.
does not give her a direct and legal interest sufficient to allow
23
Id.
24
Id.
25
See Freedom Fin. Group v. Woolley, 280 Neb. 825, 792 N.W.2d 134
(2010).
26
See id.
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her to intervene in her own behalf in the action. We reject her
arguments to the contrary.
(ii) No Right to Intervene
on L.L.C.’s Behalf
Ryan also argues she has the right to intervene on behalf of
the L.L.C. She asserts that Streck is seeking to buy the L.L.C.’s
only asset and alleges that the interests of the L.L.C. have not
been “fully protected” by the comanagers and receiver.
[15] To determine whether Ryan has a direct and legal inter-
est sufficient to allow her to intervene on behalf of the L.L.C.,
we find guidance in the law governing whether and when a
shareholder of a corporation may intervene on behalf of the
corporation. This is so because we have generally treated
actions by a member of an LLC in the same manner as actions
by a shareholder of a corporation.27
[16] As a general rule, a shareholder may not bring an action
in his or her own name to recover for wrongs done to the cor-
poration or its property.28 Such a cause of action is in the cor-
poration and not the shareholders.29 The right of a shareholder
to sue is derivative in nature and normally can be brought only
in a representative capacity for the corporation.30
The LLC Act provides a means to bring a derivative action.
Section 21-165 states:
A member may maintain a derivative action to enforce a
right of [an LLC] if:
(1) the member first makes a demand on the other
members in a member-managed [LLC], or the managers
of a manager-managed [LLC], requesting that they cause
the company to bring an action to enforce the right, and
the managers or other members do not bring the action
within a reasonable time; or
27
See id.
28
Id.
29
Id.
30
Id.
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(2) a demand under subdivision (1) of this section
would be futile.
Ryan’s complaint in intervention alleges that she “made
demand upon the receiver” to assert the additional claims
and defenses she wished to raise in this litigation, but that
the receiver refused to do so. Alternatively, Ryan alleges that
demand upon the managers and receiver would have been
futile, because the managers admitted they could not agree to
a course of action and the receiver refused to assert the claims
and defenses Ryan wished to raise in this litigation. But Ryan
has not filed a derivative action, nor does she argue that she
has met the requirements for bringing such an action here.
[17] Instead, Ryan primarily relies on this court’s deci-
sion in State v. Holmes31 to support her motion to intervene
on behalf of the L.L.C. In Holmes, a receiver had been
appointed to represent an insolvent corporation. A shareholder
sought to intervene to protect the interests of the corporation,
alleging that the corporation was “not represented” in the
action, that the corporate officers “refuse[d] to act,” and that
“the rights of stockholders [were], therefore, unprotected.”32
The shareholder alleged that although a receiver had been
appointed, it was done at the request of and for the benefit of
the insolvent corporation’s creditors. The shareholder further
alleged that the receiver had handled the insolvent corpora-
tion’s assets in a “reckless and improvident manner, and that,
if his actions are permitted to go unchallenged, he will waste
and dissipate a large amount of valuable property belong-
ing to the [corporation].”33 On those unique facts, this court
observed that the rights of the shareholders were completely
unprotected, and we held that the shareholder could intervene
on behalf of the corporation, reasoning that “[w]here the
corporation can not, or will not, protect the interests of the
31
State v. Holmes, 60 Neb. 39, 82 N.W. 109 (1900).
32
Id. at 41, 82 N.W. at 109.
33
Id.
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stockholders, the [stockholders] may intervene for their own
protection.”34 As such, our decision in Holmes recognized a
very limited exception to the general rule that a shareholder
may not bring an action in his or her own name to recover for
wrongs done to the corporation or its property.35 But Ryan has
not alleged anything which suggests the exception applies here
to support her intervention.
Unlike the facts in Holmes, Ryan has not alleged the receiver
is completely failing to protect the interests of the L.L.C. and
its members, nor would the record support such an inference.
The record shows the receiver was appointed at the joint
request of the comanagers to “address, answer, and/or defend
the Complaint filed . . . by Streck” and has been doing so.
Ryan’s briefing argues that the receiver could or should be
managing the litigation differently, but she has not alleged
that the receiver cannot or will not protect the interests of the
L.L.C. or its members. On these facts, Holmes is inapplicable,
and Ryan has argued no other basis for claiming a direct and
legal interest sufficient to authorize her intervention on behalf
of the L.L.C.
[18] On this record, we conclude Ryan has not alleged a
direct and legal interest sufficient to support intervention in the
litigation between the L.L.C. and Streck. As such, we do not
address her remaining assignments of error. An appellate court
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it.36
V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
Miller-Lerman and K elch, JJ., not participating.
34
Id. at 43, 82 N.W. at 110.
35
See Freedom Fin. Group v. Woolley, supra note 25.
36
Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015).