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BENJAMIN v. BIERMAN

Cite as 305 Neb. 879

Brenda L. Benjamin, Personal Representative of the 

Estate of Mark W. Benjamin, deceased, appellant 

and cross-appellee, v. Douglas S. Bierman and 

Sixth Street Rentals, L.L.C., appellees 

and cross-appellants.

Brenda L. Benjamin, Personal Representative of the 

Estate of Mark W. Benjamin, deceased, appellant 

and cross-appellee, v. Douglas S. Bierman et al., 

appellees and cross-appellants.

___ N.W.2d ___

Filed May 22, 2020. Nos. S-19-328, S-19-329.

1. 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.

2. Trial: Equity: Appeal and Error. On appeal from the bench trial of an 

equity action, the standard of review is de novo on the record and the 

court must resolve questions of law and fact independently of the trial 

court’s determinations.

3. Equity: Appeal and Error. When the evidence is in conflict, the 

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

court observed the witnesses and accepted one version of the facts 

over another.

4. Contracts. The interpretation of a contract and whether the contract is 

ambiguous are questions of law subject to independent review.

5. ____. A contract written in clear and unambiguous language is not subject to interpretation or construction and must be enforced according to 

its terms.

6. ____. The court must accord clear terms their plain and ordinary meaning as an ordinary or reasonable person would understand them.

Nebraska Supreme Court Online Library

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

07/10/2020 08:08 AM CDT
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7. ____. The fact that the parties have suggested opposite meanings of a 

disputed instrument does not necessarily compel the conclusion that the 

instrument is ambiguous.

8. ____. A court is not free to rewrite a contract or to speculate as to terms 

of the contract which the parties have not seen fit to include.

9. ____. Extrinsic evidence is not permitted to explain the terms of a contract that is unambiguous.

10. Witnesses: Testimony. The credibility of a witness is a question for the 

trier of fact, and it is within its province to credit the whole of the witness’ testimony, or any part of it, which seemed to it to be convincing, 

and reject so much of it as in its judgment is not entitled to credit.

11. Trial: Expert Witnesses. A trier of fact is not bound to accept expert 

opinion testimony.

12. Expert Witnesses. The determination of the weight that should be given 

expert testimony is uniquely the province of the fact finder.

Appeals from the District Court for Buffalo County: John 

H. Marsh, Judge. Affirmed.

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

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

William J. Lindsay, Jr., and John A. Svoboda, of Gross & 

Welch, P.C., L.L.O., Kenneth F. George, of Ken George Law 

Office, and Luke M. Simpson, of Bruner, Frank & Schumacher, 

L.L.C., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Per Curiam.

I. INTRODUCTION

Brenda L. Benjamin, personal representative of the estate 

of Mark W. Benjamin, filed separate complaints against 

Douglas S. Bierman (Doug) and Sixth Street Rentals, L.L.C. 

(Rentals), and against Doug, Eugene J. Bierman, and Sixth 

Street Development, L.L.C. (Development) (collectively appellees). In her complaints, Brenda generally sought an accounting, to dissolve both Rentals and Development, and damages. 

The district court found that appellees breached the operating 
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agreements of Rentals and Development, ordered an accounting for each, declined to dissolve either, and awarded Brenda 

damages of $22,200 with respect to Rentals and $473,233 with 

respect to Development. We affirm.

II. BACKGROUND

This is a companion case to Bierman v. Benjamin.

 1 Mark 

passed away on April 14, 2015, leaving his wife, Brenda, as 

his primary beneficiary and the personal representative of 

his estate. In addition to Mark’s share of BD Construction, 

Inc./Kearney (BD), Mark owned a one-half share of Rentals 

(case No. S-19-328) with Doug and a one-third interest in Development along with Doug and Eugene (case No. 

S-19-329).

Development is in the business of renting storage units. 

Pursuant to an oral lease, Development also rents, for $8,000 

per month, the office building and shop utilized by BD, and 

it owns another building near the BD building and shop, as 

well as some vacant lots held for sale. Rentals owns trailers 

used for construction offices and storage, and a utility vehicle, all of which are rented to BD for approximately $4,000 

per month.

Mark was acting as manager for both Rentals and 

Development at the time of his death. After Mark’s death, 

Doug took over the manager position for both and continues to 

serve in that capacity. The record shows no formal action was 

taken to appoint Doug as manager of Development; rather, 

Doug called Eugene (his father) to inform him that Doug 

was going to elect himself as manager. At a later date, Doug 

issued a formal notice and minutes reflecting that change. In 

the same way, Doug named himself manager of Rentals and 

communicated that change to Brenda. Brenda testified that 

with respect to Development, Doug informed her that he and 

Eugene were prepared to outvote her on anything she might 

1 Bierman v. Benjamin, ante p. 860, ___ N.W.2d ___ (2020).
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want to do. As for Rentals, Brenda was less concerned with 

Doug’s naming himself manager, because all of Rentals’ assets 

were in the control of, and maintained by, BD.

Counsel for Rentals and Development sent notices to Brenda, 

pursuant to the respective separate but identical operating 

agreements, stating that Rentals and Development wished to 

buy out Mark’s shares.

Brenda testified she and Doug had generally reached an 

agreement that Doug would buy out Mark’s interest in Rentals 

and that Doug and Eugene would buy out Mark’s interest 

in Development. Brenda would then receive Development’s 

interest in a storage facility jointly owned by Development, 

Mark’s estate, and a third entity, as an offset against the purchase price for Mark’s interest in Development.

In November 2015, Brenda and Doug agreed to have both 

Rentals and Development valued. As relevant to this appeal, 

the business appraisals were completed by Terry Galloway. 

Galloway testified that Brenda and Doug agreed that December 

31, 2014, was a more reasonable cutoff as the valuation 

date, rather than Mark’s date of death just 4 months later. 

Ultimately, Galloway valued Rentals at $144,400, with Mark’s 

one-half interest valued at $72,200, and valued Development 

at $5,641,700, with Mark’s one-third interest valued at 

$1,880,900. The value of Development included $1.75 million 

in life insurance proceeds on Mark’s life. These valuations 

were completed in March 2016.

Brenda testified that by the end of March 2016, she became 

aware there was going to be a problem closing on all three entities (BD, Rentals, and Development) at the same time. Closing 

was set for April 15, 2016, but it never occurred. Brenda testified that Doug refused to close and that he informed her the 

negotiations into BD needed to be rethought in light of the 

values assigned to Rentals and Development. Doug testified 

that he was unsure whether he wanted to own Rentals if he 

did not also own BD and that he did not have the money to 

buy Rentals at the time he sent notice of his election to do so. 
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Doug never offered to close on Rentals. As for Development, 

Doug wanted a determination as to whether the life insurance proceeds were included in BD before he closed on 

Development.

Following the failure to close on Rentals and Development, 

Brenda filed lawsuits on June 1, 2016, seeking various forms 

of relief as to both entities. Following a bench trial, the district 

court found that appellees breached the operating agreements 

of Rentals and Development, ordered an accounting for each, 

declined to dissolve either, and awarded Brenda damages of 

$22,200 with respect to Rentals and $473,233 with respect to 

Development. These appeals followed.

III. ASSIGNMENTS OF ERROR

On appeal, Brenda assigns that the district court erred in not 

ordering both Rentals and Development dissolved.

On cross-appeal, appellees assign, restated, that the district 

court erred in (1) finding that the operating agreements set 

forth an unambiguous method for determining fair market 

value; (2) finding that Galloway’s appraisal was fair market 

value for purposes of the operating agreements; (3) finding 

that Galloway was an independent appraiser; (4) finding that 

the proper date of valuation was December 31, 2014, and not 

April 14, 2015; (5) finding that Galloway’s valuation was substantially complete as of November 30, 2015, for purposes of 

determining when the 120-day period in which appellees were 

obligated to purchase Mark’s interest; (6) finding that fair market value was established by Galloway’s opinion of value as of 

November 30, 2015; (7) entering judgment without determining the correct fair market value of Mark’s interest; (8) finding 

that appellees refused to complete the purchase of Mark’s interest, because no agreement had been reached on BD; (9) finding that appellees rejected Galloway’s valuation only when the 

parties did not agree on the value of the BD stock; (10) finding 

that appellees failed to negotiate in good faith and breached 

the contract to purchase Mark’s interest from Brenda under the 
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operating agreements and that such was a substantial failure 

of the exchange; (11) denying Development’s counterclaim 

for specific performance; (12) not using the value determined 

by their appraiser; (13) finding the starting date for accrual of 

interest to be March 30, 2016; and (14) awarding $22,200 and 

$437,233, respectively, plus interest, to Brenda.

IV. STANDARD OF REVIEW

[1] 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; 2 an appellate court will not reevaluate the credibility of witnesses or reweigh testimony but will 

review the evidence for clear error. 3

[2,3] On appeal from the bench trial of an equity action, the 

standard of review is de novo on the record and the court must 

resolve questions of law and fact independently of the trial 

court’s determinations. 4 When the evidence is in conflict, the 

appellate court considers and may give weight to the fact that 

the trial court observed the witnesses and accepted one version 

of the facts over another. 5

[4] The interpretation of a contract and whether the contract is ambiguous are questions of law subject to independent review. 6

V. ANALYSIS

1. Brenda’s Appeal

On appeal, Brenda argues that the district court erred in 

not ordering Rentals and Development to be dissolved under 

2 U.S. Pipeline v. Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d 460 

(2019).

3 Id.

4 See Robertson v. Jacobs Cattle Co., 285 Neb. 859, 830 N.W.2d 191 

(2013).

5 See O’Connor v. Kearny Junction, 295 Neb. 981, 893 N.W.2d 684 (2017).

6 DH-1, LLC v. City of Falls City, ante p. 23, 938 N.W.2d 319 (2020).
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the authority of Neb. Rev. Stat. § 21-147(a)(4)(B) or (a)(5)(B) 

(Reissue 2012), which subsections provide:

A limited liability company is dissolved, and its activities must be wound up, upon the occurrence of any of the 

following:

. . . .

(4) on application by a member, the entry by the district court of an order dissolving the company on the 

grounds that:

. . . .

(B) it is not reasonably practicable to carry on the 

company’s activities in conformity with the certificate of 

organization and the operating agreement; or

(5) on application by a member, the entry by the district court of an order dissolving the company on the 

grounds that the managers or those members in control of 

the company:

. . . .

(B) have acted or are acting in a manner that is 

oppressive and was, is, or will be directly harmful to the 

applicant.

As an initial matter, appellees argue that Brenda lacks standing to request dissolution. We agree.

Both Rentals and Development are limited liability corporations, governed by the Nebraska Uniform Limited Liability 

Company Act. Under that act, a member is defined as “a person 

that has become a member of a limited liability company under 

section 21-130 and has not dissociated under section 21-145.” 7

Neb. Rev. Stat. § 21-145 (Reissue 2012) provides that a person 

is “dissociated as a member from a limited liability company” 

upon the death of that person. Thus, upon Mark’s death, he was 

dissociated and was no longer a member per the definition of 

the term under the act.

7 Neb. Rev. Stat. § 21-102 (Reissue 2012).
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Dissociated members’ “right to participate as a member 

in the management and conduct of the company’s activities 

terminates,” 8 and thereafter, a dissociated member has limited 

rights. In the instance presented here, the death of a member, 

“the deceased member’s personal representative or other legal 

representative may exercise the rights of a transferee provided 

in subsection (c) of section 21-141 and, for the purposes of 

settling the estate, the rights of a current member under section 21-139.” 9 These rights are limited and primarily consist 

of the right to have access to records or other information 

concerning the company’s activities.

Brenda has alleged that dissolution is proper under 

§ 21-147(a)(4)(B) and (a)(5)(B). Both of those subsections 

require an application to be made by a member, but Mark 

ceased to be a member upon his death. By virtue of this dissociation, Brenda is also not a member. As such, she cannot seek 

dissolution under the plain language of the act.

Nor are we persuaded by Brenda’s contention that article 

IX, section 2, of the operating agreement granted Mark the 

power to transfer governance power, along with his economic 

interest, in Rentals and Development. That section provides:

Any Member may transfer by gift or bequest all or any 

portion of his or her interest in the Company to a spouse 

or child of the transferring Member, or to a trust established for the benefit of such spouse or child, or to an 

existing Member of the Company upon written notice to 

the Company, of such gift or bequest.

We read the plain language of this section of the agreements as permitting the transfer of some or all of a member’s 

or dissociated member’s interest in a limited liability company 

by gift or bequest. Indeed, under Neb. Rev. Stat. §§ 21-140 

and 21-141 (Reissue 2012) of the act, an interest in a limited 

liability company is personal property that is transferable. 

8 Neb. Rev. Stat. § 21-146(1) (Reissue 2012).

9 Neb. Rev. Stat. § 21-143 (Reissue 2012).
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But any interest that is transferred is accompanied by limited 

rights, as discussed above. 10 We do not read the language of the 

operating agreements as broadening the rights accompanying 

the interest to include governance power or, indeed, any other 

power beyond that permitted by the act.

We agree with appellees that Brenda lacks standing to seek 

dissolution, and therefore, we find no merit to her assignment 

of error on appeal.

2. Appellees’ Cross-Appeal

On cross-appeal, appellees assign 17 separate assignments 

of error. Generally, appellees take issue with the fair market 

value of Rentals and Development, and they assign error 

to the district court’s interpretation of the operating agreements regarding the calculation of the value, as well as the 

district court’s adoption of one expert’s value over another 

expert’s value. Appellees also argue that the court should 

have ordered specific performance of the contract for the 

purchase of Mark’s shares and that the court erred in finding 

a breach of that contract and awarding Brenda damages for 

the breach.

(a) Assignments of Error Related 

to Fair Market Value

Appellees’ primary arguments on appeal center on the fair 

market value of Rentals and Development. Appellees first 

assign that the district court erred in finding that the operating 

agreements set forth an unambiguous method for determining 

the fair market value of Rentals and Development. In contrast, 

Brenda argues that the operating agreements did set forth how 

fair market value was to be determined—either the parties were 

to agree to it or, in the absence of agreement, the parties were 

to appoint an independent, third-party appraiser to calculate 

that value.

10 See, § 21-141; Neb. Rev. Stat. § 21-143 (Reissue 2012).
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[5-9] A contract written in clear and unambiguous language is not subject to interpretation or construction and 

must be enforced according to its terms. 11 The court must 

accord clear terms their plain and ordinary meaning as an 

ordinary or reasonable person would understand them. 12 The 

fact that the parties have suggested opposite meanings of a 

disputed instrument does not necessarily compel the conclusion that the instrument is ambiguous. 13 A court is not free to 

rewrite a contract or to speculate as to terms of the contract 

which the parties have not seen fit to include. 14 Extrinsic evidence is not permitted to explain the terms of a contract that 

is unambiguous. 15

The agreements provide in relevant part:

In the event that a Member dies . . . , the Company may 

at its option repurchase the deceased . . . Member’s 

interest in the Company for an amount equal to the fair 

market value of such interest on the Member’s date of 

death . . . . The fair market value of the Member’s interest shall be as agreed in good faith by the Company and 

the personal representative(s) of the deceased Member’s 

estate . . . ; provided that if no such agreement has been 

reached within ninety (90) days of the date of death . . . , 

then the fair market value shall be determined by an independent and duly qualified appraiser mutually agreeable 

to the Company and the estate of the deceased Member 

. . . which shall equally bear equally [sic] the cost of 

such appraisal. The fair market value of the deceased 

Member’s interest . . . shall be payable by the Company 

to the deceased Member’s estate . . . within one hundred 

11 DH-1, LLC v. City of Falls City, supra note 6.

12 Ray Anderson, Inc. v. Buck’s Inc., 300 Neb. 434, 915 N.W.2d 36 (2018).

13 Id.

14 Id.

15 Id.
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twenty (120) days of the establishment of such fair 

market value on the same payment terms as set forth in 

Section 9.4 of this Agreement.

We disagree with appellees’ assertion that “fair market 

value” is a term of art necessitating reliance on factors outside 

of the agreements, and instead agree with Brenda’s reading of 

the language of the operating agreements. The plain language 

of the agreements clearly states that “the fair market value 

shall be determined by an independent and duly qualified 

appraiser mutually agreeable to the Company and the estate of 

the deceased Member.” We need not rely on anything further to 

interpret the agreements’ definition of “fair market value.” We 

reject this assignment of error.

Appellees next assign that the district court erred in finding 

that Galloway’s appraisal was the fair market value of Rentals 

and Development for purposes of the operating agreements, 

that he was independent at the time of his appraisal, that the 

appraisal should be dated as of the end of the calendar year 

preceding Mark’s death, and that the appraisal was substantially completed as of November 30, 2015.

[10-12] The credibility of a witness is a question for the 

trier of fact, and it is within its province to credit the whole 

of the witness’ testimony, or any part of it, which seemed to it 

to be convincing, and reject so much of it as in its judgment 

is not entitled to credit. 16 A trier of fact is not bound to accept 

expert opinion testimony. 17 The determination of the weight 

that should be given expert testimony is uniquely the province 

of the fact finder. 18 An appellate court will not reevaluate the 

credibility of witnesses or reweigh testimony but will review 

the evidence for clear error. 19

16 Fredericks Peebles v. Assam, 300 Neb. 670, 915 N.W.2d 770 (2018).

17 Id.

18 Id.

19 O’Connor v. Kearny Junction, supra note 5.
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The district court did not err in making these challenged 

findings. First, the record shows that the parties agreed 

Galloway should conduct the appraisal pursuant to the operating agreements. The record also supports the district court’s 

finding that the parties were in agreement that the appraisal 

should be done as of December 31, 2014.

In addition, evidence at trial showed that the appraisal was 

originally received by the parties on November 30, 2015, but 

that discussions were ongoing as to various issues related to 

the appraisal. There is evidence that certain revisions to the 

appraisal were made between November 30, 2015, and the end 

of March 2016. The record supports the district court’s finding 

that the appraisal was substantially complete by November 30 

and that November 30 was appropriate from which to calculate the 120-day period from which appellees had to comply 

with the terms of the operating agreements for buying out 

Mark’s interest.

The record is undisputed that Galloway eventually represented Brenda’s interests in various negotiations regarding 

Rentals, Development, and BD. The record also shows that 

at the time of the appraisal, Galloway was not representing 

Brenda, and as such, there was evidence to support the court’s 

finding that Galloway was independent.

We review the factual findings of the district court for clear 

error. We find no such error in the district court’s finding that 

Galloway’s valuation was the fair market value for purposes 

of the operating agreements and in entering judgment accordingly. Appellees’ assignments of error regarding fair market 

value are without merit.

(b) Assignments of Error Related 

to Breach of Contract and 

Specific Performance

Appellees next assign that the district court erred in finding 

that they failed to negotiate in good faith when they rejected 

Galloway’s valuation and refused to close on the Rentals and 
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Development sales only after the parties failed to reach an 

agreement on BD. Appellees further argue that the court erred 

in finding that they breached the agreement to buy Mark’s 

interest. Again, we review the district court’s factual findings 

for clear error and find none.

At trial, Doug testified that he and Brenda had a meeting 

on November 11, 2015, concerning the value of BD at a time 

when they were also in negotiations over the value of Rentals 

and Development. Doug also testified that 5 minutes into the 

meeting, Brenda said she was “done” and walked out.

But Brenda testified that her son had open heart surgery 

in Omaha, Nebraska, on November 10, 2015, and that on 

November 11, she was with him as he recovered at the hospital and was not at any meeting. The district court specifically 

found Brenda more credible on this point. The court further 

noted that the evidence supported Brenda’s claim that despite 

having agreed on the value of Rentals and Development, 

appellees rejected Galloway’s valuation and failed to close on 

the purchase of Mark’s interests in Rentals and Development 

only after the parties could not reach an agreement on the 

value of BD.

We find no error in the district court’s conclusion that these 

failures amounted to a failure to negotiate in good faith and a 

breach of the contract to purchase Mark’s interests in Rentals 

and Development.

Appellees also assign that the district court erred in not 

ordering specific performance of the contract for purchase of 

Mark’s shares. A court cannot award specific performance to 

the breaching party unless the breach is minor or involves no 

substantial failure of the exchange. 20 In this case, the court 

specifically found that the breach was not minor and was a 

substantial failure of the exchange. As noted above, the breach 

involved failure to close on the sale after the terms of the 

20 See Albers v. Koch, 185 Neb. 25, 173 N.W.2d 293 (1969).
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operating agreements regarding that sale were met. We agree 

that this was not minor and was a substantial failure of the 

exchange. This assignment of error is without merit.

(c) Remaining Assignments of Error

Appellees also contend that the district court erred in not 

adopting the values of its expert as the values for Rentals and 

Development.

Doug had an appraisal of Development performed for purposes of trial with a valuation date of April 14, 2015. The 

appraiser set an adjusted value of $860,000 for Mark’s onethird interest in Development, with a total value of $4,019,019. 

The appraiser set an adjusted value of $50,000 for Mark’s onehalf interest in Rentals, with a total value of $133,129.

There was no error in this determination. As noted above, 

the record demonstrates that the parties agreed to be bound by 

the fair market value as determined by Galloway. There is no 

merit to this assignment of error.

Appellees next assign that the district court erred in ordering them to pay interest on the damages award as of March 

30, 2016. Having concluded that Galloway’s fair market value 

was binding; that his appraisal was substantially complete as of 

November 30, 2015; and that appellees breached the contract 

to purchase Mark’s interests, the district court did not err in 

concluding that interest should accrue as of March 30, 2016, 

or 120 days after the determination of fair market value as 

required by the operating agreements. There is no merit to this 

assignment of error.

In their final assignment of error, appellees assign that the 

district court erred in awarding Brenda damages. The primary 

basis of this assignment of error is appellees’ contention that 

the district court erred in its reliance on Galloway’s appraisal. 

We have previously found no merit to that assertion.

We additionally observe that appellees suggest Galloway’s 

inclusion of the life insurance proceeds on Mark’s life was 
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incorrect and that this affected the valuation of Rentals and 

Development as discussed above, as well as Brenda’s ultimate 

award of damages. But appellees did not assign as error anything related to the inclusion of the life insurance proceeds, 

perhaps because the district court agreed with that position 

and excluded the value of the life insurance when determining 

Brenda’s damages award. Accordingly, we find no merit to this 

assertion or to appellees’ final assignment of error.

VI. CONCLUSION

The decision of the district court is affirmed.

Affirmed.