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JANICE M. HINRICHSEN, INC. v. MESSERSMITH VENTURES

Cite as 296 Neb. 712

Janice M. Hinrichsen, Inc., a Nebraska c

appellant and cross-appellee, v. Messers

Ventures, L.L.C., a Nebraska limited liabi

company, appellee and cross-appellan

Risk Assessment and Manageme

a Nebraska corporation, appelle

___ N.W.2d ___

Filed May 19, 2017. No. S-16-086.

1. Conveyances: Fraud: Equity. An action under the Uniform Fraudulent 

Transfer Act is equitable in nature.

2. Conveyances: Fraud: Equity: Appeal and Error. An appeal of a district court’s determination that transfers of assets were in violation of the 

Uniform Fraudulent Transfer Act is equitable in nature.

3. Equity: Appeal and Error. In an appeal of an equity action, an appellate court tries factual questions de novo on the record, reaching a conclusion independent of the findings of the trial court, provided, however, 

that where credible evidence is in conflict on a material issue of fact, the 

appellate court considers and may give weight to the fact that the trial 

judge heard and observed the witnesses and accepted one version of the 

facts rather than another.

Appeal from the District Court for Buffalo County: Joh

P. Icenogle, Judge. Affirmed in part, and in part reversed 

remanded with directions.

Larry W. Beucke, of Parker, Grossart, Bahensky, Beucke, 

Bowman & Symington, L.L.P., for appellant.

Bradley D. Holbrook and Nicholas R. Norton, of Jacobsen, 

Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee 

Messersmith Ventures, L.L.C.

Nebraska Supreme Court Online Library

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

06/15/2017 05:12 PM CDT
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Cite as 296 Neb. 712

Heavican, C.J., Wright, Miller-Lerman, Cassel,

Kelch, and Funke, 

Miller-Lerman,

NATURE OF CASE

In this action brought under the Uniform Fraudulent Transfer 

Act, Neb. Rev. Stat. §§ 36-701 to 36-712 (Reissue 2016) 

(UFTA), Janice M. Hinrichsen, Inc. (JMH), alleged that Risk 

Assessment and Management, Inc. (RAM), against whom JMH 

had a judgment from a previous action, had fraudulently transferred certain assets to Messersmith Ventures, L.L.C. The 

district court for Buffalo County entered judgment in favor of 

JMH in the amount of $250. JMH appeals, and Messersmith 

Ventures cross-appeals.

We conclude that the district court did not err when it 

implicitly found that a fraudulent transfer of assets had 

occurred. However, we further conclude that the judgment in 

the amount of $250 was not the appropriate relief. Instead, the 

appropriate relief afforded under the UFTA in this case is for 

the court to enter an order that would allow JMH’s previous 

judgment against RAM to be satisfied by authorizing JMH 

to levy execution on the assets or the proceeds of the assets 

that RAM transferred to Messersmith Ventures. We therefore 

affirm the judgment of the district court to the extent it found 

that there was a fraudulent transfer, but we reverse the order to 

the extent it awarded JMH a monetary judgment of $250. We 

remand the cause with directions to the district court to order 

the appropriate relief.

STATEMENT OF FACTS

Janice M. Hinrichsen purchased an insurance agency in Elm 

Creek, Nebraska, in 1999. She incorporated the business in 

2000 as JMH and operated it under the name “Platte Valley 

Insurance Agency.” In January 2011, JMH sold 90 percent of 

its assets to RAM; Chad Messersmith is the sole shareholder 

of RAM. Pursuant to the purchase agreement, RAM was to 

pay JMH $108,870 over a period of time. JMH and RAM 
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formed PVIA Partnership and operated the insurance agency 

through the partnership. RAM held a 90-percent interest in the 

partnership, and JMH held a 10-percent interest.

In late 2011, RAM failed to make a required payment under 

the purchase agreement. JMH thereafter left the partnership 

and filed an action against RAM to enforce the purchase agreement. In the amended complaint, this earlier case was referred 

to as “Case No. C112-88.” In July 2012, the district court 

for Buffalo County entered a judgment in favor of JMH and 

against RAM in the amount of $98,606.94. In its answer in 

the instant case, Messersmith Ventures admits the existence of 

this judgment.

In October 2013, Messersmith created Messersmith Ventures 

to operate a business under the name “Mid-States Insurance 

Agency.” On October 28, RAM, as managing partner of PVIA 

Partnership, transferred to Messersmith Ventures the customer 

list of PVIA Partnership for the amount of $250. The primary agency contracts of PVIA Partnership were subsequently 

renewed in the name of Messersmith Ventures. In November, 

RAM notified JMH that RAM was withdrawing as a partner of PVIA Partnership, and RAM filed paperwork with the 

Nebraska Secretary of State indicating that PVIA Partnership 

was dissolved effective October 31, 2013.

In February 2014, JMH filed the present action against 

Messersmith Ventures in the district court. JMH alleged in its 

complaint that RAM’s transfer of PVIA Partnership assets to 

Messersmith Ventures was a fraudulent transfer. JMH alleged 

various reasons the transfer was fraudulent, including (1) the 

transfer was made with the actual intent to hinder, delay, or 

defraud; (2) the transfer was made without receiving a reasonably equivalent value, and RAM was engaged, or was about 

to engage, in a business or transaction for which its remaining assets were unreasonably small in relation to the business 

or transaction; (3) the transfer was made without receiving 

a reasonably equivalent value in exchange for the transfer, 

and RAM was insolvent at the time or became insolvent as a 
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result of the transfer; (4) the transfer was made to an insider 

for an antecedent debt, the debtor was insolvent at the time, 

and the insider knew or reasonably should have known the 

debtor was insolvent. These allegations generally tracked the 

language of provisions of the UFTA. JMH requested an order 

avoiding the transfer to allow the assets to be used to satisfy 

JMH’s judgment against RAM and an order allowing JMH 

“to levy execution on the assets of Messersmith Ventures and 

[its] proceeds” in accordance with § 36-708(b) of the UFTA. 

JMH also requested “further relief as the Court deems just and 

equitable.” JMH amended its complaint, and, inter alia, added 

RAM as a defendant and added a request for “a charging order 

charging the assets of Messersmith Ventures.”

After a bench trial, the district court filed an order ruling on 

the action. After reviewing the evidence and JMH’s allegations, 

the court stated, inter alia, that “the only assets considered 

valuable by [JMH] transferred by RAM would be the customer 

list and the agency contracts.” The court concluded its order 

with the following paragraphs:

Nebraska law provides that if the court determines that 

a transfer is voidable the creditor may recover judgment 

for the value of the asset transferred as adjusted, or the 

amount necessary to satisfy the creditor’s claim, whichever is less. [Messersmith Ventures] at most acknowledges that the assets transferred were valued at $250.00. 

[JMH] obviously believes that the assets were valued 

at a substantially greater amount. It is the burden of 

[JMH], however, to establish the amount and value of 

the transferred assets. The court finds that [JMH] did not 

offer adequate and sufficient evidence to establish the 

value of the assets transferred at the time of the transfer. The court will therefore rely upon the testimony of 

[Messersmith Ventures] and enter judgment in favor of 

[JMH] and against [Messersmith Ventures] in the amount 

of $250.00. Interest will accrue from today’s date at 

2.137% per annum.
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The remaining issue is the request of [JMH] to levy an 

execution on the assets of [Messersmith Ventures] to satisfy [JMH’s] judgment against RAM. Nebraska law provides that if a creditor has obtained a judgment on a claim 

against the debtor, the creditor, if the court so orders, may 

levy execution on the asset transferred or its proceeds. 

The court again finds that the value of the asset transferred is $250.00 and [JMH] may levy execution against 

[Messersmith Ventures] to partially satisfy the debt of the 

transferor to [JMH]. The court, however, finds that there 

is not sufficient evidence as to the amount of proceeds 

received by [Messersmith Ventures] from the transferred 

assets, and the court therefore limits the execution to the 

amount set forth above.

JMH subsequently filed a motion for new trial, which the 

district court denied.

JMH appeals, and Messersmith Ventures cross-appeals.

ASSIGNMENTS OF ERROR

In its appeal, JMH claims, restated, that the district court 

erred when it (1) failed to specifically find that the transfer of 

assets from RAM to Messersmith Ventures was a fraudulent 

transfer and (2) awarded a monetary judgment in the amount 

of $250 rather than, inter alia, the requested relief of permitting JMH to levy execution on all assets of Messersmith 

Ventures and their proceeds in accordance with § 36-708(b) or 

“a charging order” on the assets of Messersmith Ventures.

In its cross-appeal, Messersmith Ventures claims that the 

district court erred when it awarded relief to JMH, because no 

fraudulent transfer occurred. Messersmith Ventures contends 

that, in any event, there was no evidence the assets were worth 

anything more than the $250 that Messersmith Ventures paid 

to RAM.

STANDARDS OF REVIEW

[1-3] An action under the UFTA is equitable in nature, Reed 

v. Reed, 277 Neb. 391, 763 N.W.2d 686 (2009), and an appeal 
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of a district court’s determination that transfers of assets were 

in violation of the UFTA is equitable in nature. Eli’s, Inc. v. 

Lemen, 256 Neb. 515, 591 N.W.2d 543 (1999). In an appeal 

of an equity action, an appellate court tries factual questions 

de novo on the record, reaching a conclusion independent of 

the findings of the trial court, provided, however, that where 

credible evidence is in conflict on a material issue of fact, the 

appellate court considers and may give weight to the fact that 

the trial judge heard and observed the witnesses and accepted 

one version of the facts rather than another. Id.

ANALYSIS

In its appeal, JMH assigns error both to the district court’s 

failure to explicitly find that the transfer of assets from RAM 

to Messersmith Ventures was a fraudulent transfer and to 

the form of relief that the district court ordered. In its crossappeal, Messersmith Ventures contends that no relief should 

have been given, because no fraudulent transfer occurred. It 

argues in the alternative that, if an award is warranted, the 

district court’s award of $250 in monetary damages was correct. In view of the foregoing arguments, both parties raise 

issues regarding (1) whether the record supported a finding that a fraudulent transfer occurred and (2) whether the 

relief given by the district court was appropriate. In our de 

novo review of the record in this equity action, we consider 

together the parties’ arguments regarding each of these issues. 

As explained below, we conclude that, although the record 

supported the district court’s implicit finding that a fraudulent transfer occurred, the monetary judgment awarded by the 

district court was not appropriate relief under the UFTA in 

this case.

The Record Supports the Court’s Implicit 

Finding That Under the UFTA, There 

Was a Fraudulent Transfer.

We initially address JMH’s claim that the district court erred 

when it failed to specifically find that a fraudulent transfer 
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occurred under the UFTA. We agree that, although the court 

entered a monetary judgment in favor of JMH, it did not 

explicitly state in its journal entry that it found RAM’s transfer 

of assets to Messersmith Ventures was a fraudulent transfer. 

However, because JMH brought its action under the UFTA, 

and because relief under the UFTA generally requires a finding 

that a fraudulent transfer occurred as a predicate to relief, we 

read the district court’s findings and its entry of a monetary 

judgment in favor of JMH as an implicit finding that a fraudulent transfer occurred.

In the absence of a claim that JMH made a request for specific findings under Neb. Rev. Stat. § 25-1127 (Reissue 2016), 

we believe the district court’s narrative of its findings was adequate. Further, we note that regardless of whether the district 

court made an explicit or an implicit finding that a fraudulent 

transfer had occurred, on appeal, we review the question de 

novo on the record and reach a conclusion independent of the 

finding of the district court. Therefore, in our appellate analysis, we consider whether the record supports a finding that a 

fraudulent transfer occurred.

Sections 36-705 and 36-706 describe various types of transfers that would be considered fraudulent for purposes of the 

UFTA. JMH contends that RAM’s transfer of the assets at 

issue in this case to Messersmith Ventures was fraudulent, 

because the debt arose before the transfer was made, no reasonably equivalent value was received in exchange for the 

transfer, and RAM was insolvent at the time of the transfer. 

JMH’s argument appears to be based on § 36-706(a) which 

provides in relevant part as follows:

A transfer made . . . by a debtor is fraudulent as to a 

creditor whose claim arose before the transfer was made 

. . . if the debtor made the transfer . . . without receiving a reasonably equivalent value in exchange for the 

transfer . . . and the debtor was insolvent at that time 

or the debtor became insolvent as a result of the transfer . . . .
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Messersmith Ventures does not appear to dispute that 

RAM’s debt to JMH reflected in the judgment against RAM 

in case No. C112-88, arose before the transfer at issue, nor 

does it appear to dispute that RAM was insolvent at the time 

of the transfer or became insolvent as a result of the transfer. 

Instead, Messersmith Ventures claims that JMH failed to prove 

a fraudulent transfer of assets had occurred for two reasons: 

(1) neither the customer lists nor the agency contacts transferred were “assets” within the meaning of the UFTA, because 

at all relevant times, they were subject to a valid lien of 

another creditor, and (2) even if a transfer of assets occurred, 

JMH failed to show that the transfer was not for a reasonably 

equivalent value, because there was no evidence the assets 

were worth more than the $250 that Messersmith Ventures 

paid to RAM.

Regarding Messersmith Ventures’ first argument, the word 

“asset” is defined in § 36-702(2) of the UFTA as follows: 

“Asset means property of a debtor, but the term does not 

include[, inter alia,] property to the extent it is encumbered by 

a valid lien.” Messersmith Ventures argues that the evidence 

shows that RAM’s assets, including the customer lists and 

agency contracts, were encumbered by a bank’s security interest which operated as a valid lien against RAM’s assets “in the 

amount of at least $22,750.00.” Brief for appellee on crossappeal at 12. Messersmith Ventures contends that because the 

assets transferred to it by RAM were worth no more than the 

$250 it paid to RAM, the transferred assets were fully encumbered by the bank’s lien and therefore not “assets” within the 

meaning of the UFTA. See § 36-702(2).

Messersmith Ventures alternatively argues that JMH did not 

prove that the transfer was made “without receiving a reasonably equivalent value in exchange for the transfer” as required 

for a fraudulent transfer under § 36-706(a). Messersmith 

Ventures asserts that the district court found that JMH had 

not proved that the transferred assets were worth anything 

more than the $250 that Messersmith Ventures paid to RAM 
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and that therefore, in the language of § 36-706(a), RAM had 

received “a reasonably equivalent value” in exchange for 

the transfer.

Both of these arguments are premised on Messersmith 

Ventures’ assertion that JMH did not present evidence to prove 

that the assets transferred to it by RAM were worth anything 

more than the $250 as found by the court. But, based on our 

de novo review of the record, we disagree with the court’s 

determination that the assets transferred were worth no more 

than $250.

Having reviewed the record, we recognize that JMH did not 

establish the specific value of the assets RAM transferred to 

Messersmith Ventures in October 2013. However, it was not 

required to do so to support its contention that the $250 was not 

a reasonably equivalent value compared to the assets received. 

The evidence shows that in January 2011, JMH sold 90 percent 

of its assets to RAM for $108,870; that in July 2012, the district court entered judgment in favor of JMH and against RAM 

in case No. C112-88 in the amount of $98,606.94; and that in 

October 2013, RAM transferred its customer lists and agency 

contracts to Messersmith Ventures for $250.

The record supports JMH’s assertion that the $108,870 

which RAM paid JMH in 2011 included 90 percent of the 

book of insurance business and good will of the Platte Valley 

Insurance Agency, as well as furniture, fixtures, and equipment. 

The purchase included the carrier and customer contracts, and 

as JHM notes, “RAM utilized these contracts and was paid 

commissions of $83,311 in 2012 . . . and $47,220.00 in 2013.” 

Brief for appellant at 12.

It is reasonable to infer from such evidence that the assets 

RAM transferred to Messersmith Ventures in October 2013 

were basically the book of insurance business that RAM 

purchased from JMH in January 2011 at a price in excess of 

$100,000. It is further reasonable to infer that the worth of 

such assets in October 2013 was considerably closer to the 

$98,606.94 judgment, rather than the $250 that Messersmith 
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Ventures paid to RAM. Therefore, although JMH did not 

prove a specific value for the transferred assets, the evidence 

was sufficient to find both that RAM transferred the assets 

“without receiving a reasonably equivalent value in exchange 

for the transfer,” under § 36-706(a), and that the transferred 

assets were not entirely encumbered by the bank’s security interest.

Based on this and other evidence noted in our de novo 

review of the record, we conclude that the district court did 

not err when it implicitly found that a fraudulent transfer 

had occurred. Having determined that a fraudulent transfer 

occurred, we next consider whether the district court awarded 

appropriate relief under the UFTA.

Based on the Nature of the Fraudulent Transfer in 

This Case, a Monetary Judgment of $250 Was Not 

Appropriate Relief; the Court Instead Should Have 

Ordered That JMH May Levy Execution on the 

Assets That Were Transferred to Messersmith 

Ventures or the Proceeds of Such Assets.

Both parties claim on appeal that the district court erred 

when it awarded a monetary judgment in the amount of $250. 

Messersmith Ventures claims that the judgment was in error, 

because JMH did not prove a fraudulent transfer and, therefore, 

should not have been awarded any relief, whereas JMH claims 

that it was entitled to relief, but that the money judgment in the 

amount of $250 was not the appropriate relief. We concluded 

above that JMH proved a fraudulent transfer, and we therefore 

reject Messersmith Ventures’ argument that JMH should not 

have been awarded any relief. We further conclude that, applying the UFTA, the district court’s judgment in favor of JMH in 

the amount of $250 was not appropriate relief under the facts 

of this case.

As an initial matter with respect to the appropriate form of 

relief, we comment briefly on JMH’s argument that it was entitled to a “charging order.” We believe JMH is contemplating 
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a provision in the Nebraska Uniform Limited Liability 

Company Act, Neb. Rev. Stat. § 21-142(a) (Reissue 2012), 

which provides:

On application by a judgment creditor of a member or 

transferee, a court may enter a charging order against 

the transferable interest of the judgment debtor for the 

unsatisfied amount of the judgment. A charging order 

constitutes a lien on a judgment debtor’s transferable 

interest and requires the limited liability company to pay 

over to the person to which the charging order was issued 

any distribution that would otherwise be paid to the judgment debtor.

Section 21-142(a) is similar to the limited liability company laws adopted in other states. The Florida equivalent of 

Nebraska’s § 21-142(a) has been explained as follows: “A 

charging order issued under this provision acts as a lien on 

the member’s interest in the limited liability company and 

grants the judgment creditor the right to receive distributions 

from the company which the member would have otherwise 

been entitled to receive.” Wells Fargo Bank, N.A. v. Barber, 

85 F. Supp. 3d 1308, 1313 (M.D. Fla. 2015). The court in 

Barber continued: “Generally, ‘a charging order is the sole 

and exclusive remedy by which a judgment creditor . . . may 

satisfy a judgment’ from a member’s interest in a limited liability company or distributions therefrom.” Id. See, similarly, 

§ 21-142(g).

In Barber, plaintiffs alleged four counts and sought relief 

under the Florida Limited Liability Company Act and the 

Florida Uniform Fraudulent Transfer Act. Therefore, the federal district court considered both statutes. In contrast, the 

instant case has been tried under the UFTA, and accordingly, 

we restrict our consideration of the appropriate relief to the 

UFTA’s remedies. Remedies under the UFTA are directed 

at the assets that were transferred; in this case, no membership interests were transferred. A charging order is directed 

at reaching a debtor’s membership interest and is therefore 
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not applicable to the assets transferred in this case. Compare, 

§ 36-708 (pertaining to remedies) with § 21-142(a) (pertaining 

to charging orders in connection with limited liability companies), and Neb. Rev. Stat. § 67-430 (Reissue 2009) (pertaining 

to charging orders in connection with partnerships).

Section 36-708 of the UFTA is entitled “Remedies of creditors,” and § 36-709 of the UFTA is entitled “Defenses, liability, and protection of transferee.” Both sections relate to 

remedies. Subsection (a) of § 36-708 sets forth remedies 

including, inter alia, avoidance of the transfer, attachment 

against the asset transferred, and “any other relief the circumstances may require.” The district court’s award of a monetary judgment set at the amount of $250 appears to be either 

“other relief” under § 36-708(a)(3)(iii) or relief in the form of 

avoidance of the transfer, which pursuant to § 36-709(b) may 

be accomplished by a “judgment for the value of the asset 

transferred.” However, as we discussed above, the evidence in 

this case indicates that the value of the asset transferred was 

significantly more than the $250 that Messersmith Ventures 

paid to RAM.

We have considered the record de novo in this equitable 

case. We determine instead of the relief directed by the district 

court, the more appropriate relief in this case is that set forth 

in § 36-708(b) which provides that “[i]f a creditor has obtained 

a judgment on a claim against the debtor, the creditor, if the 

court so orders, may levy execution on the asset transferred 

or its proceeds.” In this case, JMH is the creditor who had 

obtained a $98,606.94 judgment on a claim against RAM in 

case No. C112-88. Given the fraudulent transfer and the equities involved, the court in this case should order, pursuant to 

§ 36-708(b), that JMH may levy execution on the assets or the 

proceeds of the assets that RAM transferred to Messersmith 

Ventures. This remedy allows JMH to levy execution on the 

assets transferred to Messersmith Ventures or their continuing 

proceeds in order to satisfy JMH’s judgment against RAM. 

This remedy is more equitable than the specific monetary 
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judgment awarded by the district court because it allows JMH 

to execute on the assets or the proceeds of such assets in the 

hands of Messersmith Ventures to the extent of their productive value and JMH’s judgment against RAM, rather than limiting JMH’s recovery to $250.

CONCLUSION

Based on our de novo review of the record, we conclude 

that the district court did not err when it implicitly found 

that RAM’s transfer of assets to Messersmith Ventures was 

a fraudulent transfer. We affirm this part of the court’s order. 

However, we conclude that the district court’s award of a 

monetary judgment of $250 in favor of JMH was not appropriate relief in this case and that instead, the court should 

have ordered, pursuant to § 36-708(b), that JMH may levy 

execution of its judgment against RAM on the assets or the 

proceeds of the assets that RAM transferred to Messersmith 

Ventures. We reverse the district court’s monetary judgment 

of $250, and we remand the cause with directions to the district court to order the appropriate relief in accordance with 

this opinion.

 Affirmed in part, and in part r

and remanded with direct

Cassel, J., concurring.

The court’s opinion, which I join in full, mandates relief 

under Neb. Rev. Stat. § 36-708(b) (Reissue 2016). This statute 

authorizes the trial court to order that the judgment creditor 

“may levy execution on the asset transferred or its proceeds.”1

Thus, this court says, the trial court should have ordered that 

the creditor “may levy execution of its judgment against [the 

transferee] on the assets or the proceeds of the assets.” On 

remand, the trial court undoubtedly will do so.

But, in this case, the transferred assets are intangible. Our 

execution statute makes only “[l]ands, tenements, goods and 

1 § 36-708(b).
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chattels, not exempt by law, . . . liable to be taken on execution and sold . . . .”2

 This may prompt some confusion on how 

our mandate is to be carried out. It may be that an officer to 

whom a writ of execution is directed regarding intangible 

assets may find it outside of his or her experience. But the 

means of carrying out our mandate is a matter that in the first 

instance, must be addressed in the court below.

Equitable principles should guide the parties and the trial 

court. A claim to set aside fraudulent conveyances is an action 

in equity.3 Where a situation exists which is contrary to the principles of equity and which can be redressed within the scope of 

judicial action, a court of equity will devise a remedy to meet 

the situation.4 Where relief may be granted, although no precedent may be found, the court will so proceed.5

2 Neb. Rev. Stat. § 25-1503 (Reissue 2016).

3 Bowers v. Dougherty, 260 Neb. 74, 615 N.W.2d 449 (2000).

4 O’Connor v. Kearny Junction, 295 Neb. 981, ___ N.W.2d ___ (2017).

5 Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).