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WAYNE L. RYAN REVOCABLE TRUST v. RYAN

Cite as 297 Neb. 761

Wayne L. Ryan Revocable Trust et al., a

v. Constance “Connie” Ryan and S

appellees, and Timothy Coffey et al., all 

individual capacities and in their capac

qualified beneficiaries of the Eil

Revocable Trust, appe

___ N.W.2d ___

Filed September 15, 2017. No. S-16-628.

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. Neb. Rev. Stat. 

§ 25-1315 (Reissue 2016) does not supersede Nebraska’s final order 

jurisprudence regarding orders denying intervention.

4. ____: ____: ____. An order denying intervention is a final, appealable order.

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.

7. Interventions: Pleadings. 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/29/2017 09:10 AM CDT
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8. ____: ____. 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.

9. ____: ____. 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.

10. ____: ____. 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 original parties.

11. Interventions. An intervenor is bound by any determinations that were 

made before he or she intervened in the action. In other words, an intervenor must take the suit as he or she finds it.

12. ____. It is generally understood that the right to intervene does not 

carry with it the right to relitigate matters already determined, and an 

intervenor is admitted to the proceeding as it stands with respect to any 

pending issues.

13. Appeal and Error. An issue not presented to or decided by the trial 

court is not appropriate for consideration on appeal.

Appeal from the District Court for Sarpy County: Willi

B. Zastera, Judge. Affirmed

Paul Heimann, Bonnie M. Boryca, and Karen M. Keeler, of 

Erickson & Sederstrom, P.C., for appellants.

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.

Larry E. Welch, Jr., and Damien J. Wright, of Welch Law 

Firm, P.C., for appellee Constance “Connie” Ryan.

Heavican, C.J., Wright, Cassel, Stacy, and Fu

Per Curiam

This case involves an appeal from an order denying 

intervention in a corporate dissolution action. Because we 

find the intervenors are seeking only to relitigate matters 
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already decided by the court, we affirm the order denying 

intervention.

FACTS

1. Partie

Streck, Inc., is a Nebraska corporation with its principal 

place of business in La Vista, Sarpy County, Nebraska. The 

company manufactures hematology, immunology, and molecular biology products for clinical and research laboratories.

Streck was founded by Dr. Wayne L. Ryan in 1971. Dr. 

Ryan is one of Streck’s directors and is the sole beneficiary 

of the Wayne L. Ryan Revocable Trust (RRT), which owns 

33 percent of Streck’s voting stock and a majority of Streck’s 

nonvoting stock. The sole trustee of the RRT is Dr. Ryan’s 

daughter Carol Ryan. Dr. Ryan is also the primary beneficiary of his late wife’s trust, the Eileen Ryan Revocable Trust 

(ERRT), which owns about 40 percent of Streck’s nonvoting stock.

Another of Dr. Ryan’s daughters, Constance Ryan (Connie), 

is the president and chief executive officer of Streck. Connie 

holds a majority of Streck’s voting stock and about 8 percent 

of its nonvoting stock.

Stacy Ryan, one of the intervenors in this action, is also one 

of Dr. Ryan’s daughters. Stacy redeemed her voting and nonvoting shares of Streck several years ago, but she remains an 

income beneficiary of the ERRT, which, as stated previously, 

owns nonvoting shares of Streck.

2. Lawsuit Betw

and Str

In October 2014, the RRT filed suit against Streck and 

Connie in the Sarpy County District Court. The suit alleged 

shareholder oppression under Neb. Rev. Stat. § 21-20,162 

(Reissue 2012) and breach of fiduciary duty. The relief sought 

included, among other things, “the dissolution of Streck.”
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On January 19, 2015, Streck filed an “Election to Purchase” 

the RRT’s shares pursuant to the provisions of Neb. Rev. Stat. 

§ 21-20,166 (Reissue 2012). That statute allows a corporation 

involved in a judicial dissolution action brought by shareholders to elect to purchase the shares owned by the petitioning 

shareholders rather than dissolve.1 If, within 60 days after filing the election, the parties reach agreement on the fair value 

of the shares, the court “shall enter an order directing the 

purchase of the petitioner’s shares upon the terms and conditions agreed to by the parties.”2

 If the parties are unable to 

reach an agreement, the court, “upon application of any party, 

shall stay such proceedings and determine the fair value of the 

petitioner’s shares” as of the day before the date the election 

was filed or any other date the court deems appropriate.3 After 

an election has been filed under this statute, the underlying 

dissolution action may not be “discontinued or settled, nor 

may the petitioning shareholder sell or otherwise dispose of 

his or her shares, unless the court determines that it would be 

equitable to the corporation and the shareholders, other than 

the petitioner, to permit such discontinuance, settlement, sale, 

or other disposition.”4

Although not raised by the parties, we note for the sake of 

completeness that § 21-20,166 was repealed by the Legislature 

in 2014.5 Originally, the repeal was to be operative in 2016, but 

the operative date was amended by 2015 Neb. Laws, L.B. 157, 

§ 10, to January 1, 2017. The repeal was due to the Legislature’s 

2014 adoption of the Nebraska Model Business Corporation 

Act (NMBCA) and repeal of Nebraska’s Business Corporation 

Act. The Legislature’s intent in adopting the NMBCA was 

1 § 21-20,166(1).

2 § 21-20,166(3).

3 § 21-20,166(4).

4 § 21-20,166(2).

5 2014 Neb. Laws, L.B. 749, § 298.
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to harmonize inconsistent terminology and move Nebraska 

to the same statutory scheme as 31 other jurisdictions.6 The 

election provisions under the new NMBCA statute are substantially similar to the election provisions under the now-repealed 

§ 21-20,166.7 And, more important, the NMBCA contains a 

saving provision that expressly provides that the repeal of 

any statute by the NMBCA “does not affect” any “dissolution 

commenced under the statute before its repeal, and the . . . dissolution may be completed in accordance with the statute as if 

it had not been repealed.”8 As such, we conclude the repeal of 

§ 21-20,166 does not materially affect our analysis.

On March 23, 2015, Streck filed an application to stay the 

proceedings, pursuant to § 21-20,166(4). In support of its 

motion, Streck alleged 60 days had elapsed and the parties had 

been unable to reach agreement regarding the fair value of the 

RRT’s shares. Streck asked the court to stay further proceedings and determine the fair value of the RRT’s shares as of 

October 29, 2014 (the day before the RRT’s complaint was 

filed). On the same date, Connie filed a motion to determine 

fair value and stay further proceedings, which motion sought 

substantially the same relief as Streck’s application.

On April 28, 2015, the court granted the applications and 

motions for stay. The court stayed the case to permit limited 

discovery on the issue of fair value and to allow the parties to reach possible agreement regarding the fair value of 

the shares.

3. Stacy’s First Comp

in Interve

On June 16, 2015, while the case was stayed, Stacy filed 

a complaint in intervention. She alleged that 3 years earlier, 

6 Introducer’s Statement of Intent, L.B. 749, Committee on Banking, 

Commerce, and Insurance, 103d Leg., 2d Sess. (Feb. 3, 2014).

7 See Neb. Rev. Stat. § 21-2,201 (Cum. Supp. 2016).

8 Neb. Rev. Stat. § 21-2,232 (Cum. Supp. 2016).
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Streck and Connie had fraudulently induced her to redeem her 

voting and nonvoting shares of Streck for a purchase price that 

was substantially less than was legal and equitable. Although 

Stacy was not a shareholder of Streck at the time she filed her 

complaint in intervention, she asserted a variety of theories 

against both Streck and Connie, the details of which are not 

relevant to the issues on appeal.

On July 9, 2015, the court entered an order denying Stacy’s 

complaint in intervention, finding that the claim she was 

asserting did not involve the same core issue as the claims 

between Streck and the RRT.9 No appeal was taken from 

this order.

4. Cross-Motions for Par

Summary Judgme

On January 20, 2016, the RRT filed a motion for partial 

summary judgment, seeking an order that discounts should 

not be applied to the determination of the fair value of the 

RRT’s shares. Shortly thereafter, Streck also filed a motion 

for partial summary judgment, seeking a determination that 

as a matter of law, it had validly exercised its election to 

purchase the RRT’s shares, and that § 21-20,166(2) did not 

permit the RRT to challenge the election, because it authorized setting an election aside only if it was found not to be 

in the best interests of the corporation or the nonpetitioning 

shareholders.

On April 25, 2016, the court entered an order granting both 

parties’ motions for partial summary judgment. With respect 

to the RRT’s motion, the court held that discounts should 

not be applied to the determination of the fair value of the 

RRT’s shares. With respect to Streck’s motion, the court held 

that Streck was entitled to exercise an election to purchase 

the RRT’s shares pursuant to § 21-20,166 and had validly 

done so. With the election declared valid, the only matter 

9 See Ruzicka v. Ruzicka, 262 Neb. 824, 635 N.W.2d 528 (2001).
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remaining for the court to consider was the determination of 

the “fair value” of the shares, subject to the election pursuant 

to § 21,20-166. Trial on that issue was scheduled to begin 

July 5.

5. Second Comp

in Interve

On May 13, 2016—more than 1 year after Streck filed its 

election and several weeks after the district court granted summary judgment finding the election valid—Stacy filed a second 

complaint in intervention, joined by her adult children Timothy 

Coffey, Sean Coffey, and John Ryan Coffey (collectively the 

intervenors). The intervenors are 4 of the 16 Ryan family 

members who are income beneficiaries of the ERRT. They 

alleged a statutory right to intervene pursuant to Neb. Rev. 

Stat. § 25-328 (Reissue 2016).

The intervenors’ complaint did not allege any issue with 

respect to the fair value of the RRT’s shares. Instead, it 

addressed the issue of whether Streck’s election to purchase 

the RRT’s shares was valid. The intervenors alleged they had 

been prevented from “showing the Court that the election to 

purchase is not in the best interests of [the ERRT]” and wanted 

to show that Streck’s special litigation committee “did not act 

independently, did not perform due diligence, and [was] not 

objective when making [its] decision to purchase” the RRT’s 

shares. The intervenors alleged that “[t]he purchase of Dr. 

Ryan’s Streck shares will dilute or diminish the value of the 

[ERRT’s] shares and the [intervenors’] future interest in them.” 

As such, they sought to intervene in order to ask that the court 

“alter, amend, or vacate” its earlier order granting summary 

judgment on the validity of the election and “stay adjudication 

of that issue” until after the intervenors had an opportunity to 

conduct full discovery and “be fully heard” on the validity of 

the election.

Streck and Connie each filed motions to strike the intervenors’ complaint. They argued the intervenors did not have a 
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direct and legal interest in the matter being litigated, because 

(1) all that was left to decide was the fair value of the RRT’s 

shares and (2) the remaining issue had no direct bearing 

on the intervenors, who were not Streck shareholders, but 

merely income beneficiaries of the ERRT, which held nonvoting Streck shares. They also argued that to the extent the 

intervenors were attempting to challenge issues previously 

determined involving the validity of Streck’s election, their 

intervention was untimely, because summary judgment already 

had been granted on the issues and allowing intervention to 

challenge the summary judgment would impermissibly expand 

the proceedings. Finally, they argued that intervention would 

be futile because, under Nebraska law, one who intervenes 

has to take the case as they find it and the issues the intervenors wanted to challenge had already been decided on summary judgment.

On June 21, 2016, the court entered an order striking the 

complaint in intervention. The court stated its reasoning on the 

record, explaining that the intervenors had waited too long to 

intervene, had shown only an indirect interest in the subject 

matter of the litigation, and, in any event, were seeking relief 

the court could not grant. The intervenors timely appealed, and 

we moved the appeal to our docket.10

II. ASSIGNMENTS OF ERROR

The intervenors assign, renumbered, that the district court 

erred in (1) ruling they did not have a direct and legal interest 

in the proceedings and striking the complaint in intervention 

on that basis, (2) ruling the complaint in intervention was 

untimely and striking it on that basis, and (3) ruling it could 

not fashion relief for the intervenors on the claims in their 

complaint in intervention and striking it on that basis.

10 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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III. STANDARD OF REVIEW

[1] Whether a party has the right to intervene in a proceeding is a question of law.11 On a question of law, an appellate 

court is obligated to reach a conclusion independent of the 

determination reached by the court below.12

IV. ANALYSIS

1. Jurisdicti

[2] 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.13 Streck argues we lack 

jurisdiction over this appeal, because the order denying intervention did not comply with the provisions of Neb. Rev. Stat. 

§ 25-1315 (Reissue 2016).

[3,4] We recently addressed, and rejected, this same argument in Streck, Inc. v. Ryan Family.14 There, we concluded that 

our jurisprudence regarding the finality of orders denying intervention15 had not been superseded by § 25-1315, and we reiterated that an order denying intervention is a final, appealable 

order.16 We conclude the intervenors have appealed from a final 

order, and Streck’s argument to the contrary is without merit.

2. Statutory Interve

(a) Legal Framework

The intervenors claim a right to intervene under § 25-328, 

which provides:

11 Ruzicka v. Ruzicka, supra note 9.

12 Id.

13 Trainum v. Sutherland Assocs., 263 Neb. 778, 642 N.W.2d 816 (2002).

14 Streck, Inc. v. Ryan Family, post p. 773, ___ N.W.2d ___ (2017). Cf. 

Guardian Tax Partners v. Skrupa Invest. Co., 295 Neb. 639, 889 N.W.2d 

825 (2017).

15 See, e.g., Basin Elec. Power Co-op v. Little Blue N.R.D., 219 Neb. 372, 

363 N.W.2d 500 (1985).

16 Streck, Inc. v. Ryan Family, supra note 14.
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Any person who has or claims an interest in the matter 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.

[5-9] As a prerequisite to intervention under § 25-328, 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.17 An indirect, remote, or conjectural interest in 

the result of a suit is not enough to establish intervention as 

a matter of right.18 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.19

Therefore, 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.20 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.21

[10,11] Our jurisprudence also recognizes some practical 

limitations on the right to intervene. A prospective intervenor can raise his or her claims or defenses, but those claims 

17 Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006).

18 Id.

19 See Kirchner v. Gast, 169 Neb. 404, 100 N.W.2d 65 (1959).

20 Spear T Ranch v. Knaub, supra note 17.

21 Id.
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or defenses must involve the same core issue as the claims 

between the existing parties.22 Intervenors can raise only issues 

that “sustain or oppose the respective contentions of the [original parties].”23 The intervenor is bound by any determinations 

that were made before he or she intervened in the action.24

In other words, “‘[a]n intervene[o]r must take the suit as he 

finds it . . . .’”25

(b) Intervenors’ Complaint

[12] It is settled law that one who intervenes is bound by 

any determinations that were made before he or she intervened in the action.26 In other words, “‘[a]n intervene[o]r must 

take the suit as he finds it . . . .’”27 It is generally understood 

that the right to intervene does not carry with it the right to 

relitigate matters already determined,28 and an intervenor is 

admitted to the proceeding as it stands with respect to any 

pending issues.29

At the time the intervenors filed their complaint, the only 

disputed issue remaining for determination by the court in this 

judicial dissolution was the fair value of the RRT’s shares. 

The intervenors’ complaint, however, makes no allegations 

regarding that issue. The allegations in the complaint instead 

22 See Ruzicka v. Ruzicka, supra note 9.

23 State ex rel. Nelson v. Butler, 145 Neb. 638, 650, 17 N.W.2d 683, 691 

(1945).

24 See School Dist. of Gering v. Stannard, 196 Neb. 367, 242 N.W.2d 889 

(1976).

25 Drainage District v. Kirkpatrick-Pettis Co., 140 Neb. 530, 538, 300 N.W. 

582, 587 (1941).

26 School Dist. of Gering v. Stannard, supra note 24.

27 Drainage District v. Kirkpatrick-Pettis Co., supra note 25, 140 Neb. at 

538, 300 N.W. at 587.

28 See, e.g., Arizona v. California, 460 U.S. 605, 103 S. Ct. 1382, 75 L. Ed. 

2d 318 (1983).

29 59 Am. Jur. 2d Parties § 227 (2012).
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challenge only the already-settled question of the validity of 

Streck’s election. Because the intervenors are seeking to use 

intervention as a vehicle for relitigating issues previously 

determined by the court, the complaint in intervention was 

properly stricken.

[13] The intervenors argue on appeal that even if their 

interests do not support statutory intervention, the district 

court should have permitted them to intervene as a matter of 

equity. Independent of the intervention statutes, we have held 

that a court with equitable jurisdiction may allow persons to 

intervene as a matter of equity in a proper case.30 But here, 

equitable intervention was neither alleged as a basis for the 

complaint in intervention nor clearly argued before the district 

court. An issue not presented to or decided by the trial court is 

not appropriate for consideration on appeal.31

V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed

Miller-Lerman and Kelch, JJ., not partici

30 See Department of Banking v. Stenger, 132 Neb. 576, 272 N.W. 403 

(1937).

31 Ameritas Invest. Corp. v. McKinney, 269 Neb. 564, 694 N.W.2d 191 

(2005).