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AVG Partners I, LLC, also known as AVG Partners, 

appellee and cross-appellant, v. Genesis Health 

Clubs of Midwest, LLC, and 24 Hour 

Fitness USA, Inc., appellants 

and cross-appellees.

___ N.W.2d ___

Filed September 4, 2020. No. S-19-857.

1. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

2. Standing: Jurisdiction: Parties. Standing is a jurisdictional component 

of a party’s case because only a party who has standing may invoke the 

jurisdiction of a court.

3. Jurisdiction: Appeal and Error. The question of jurisdiction is a ques

tion of law, upon which an appellate court reaches a conclusion indepen

dent of the trial court.

4. Directed Verdict: Appeal and Error. A directed verdict is proper at the 

close of all the evidence only when reasonable minds cannot differ and 

can draw but one conclusion from the evidence, that is, when an issue 

should be decided as a matter of law.

5. ____: ____. In reviewing a trial court’s ruling on a motion for directed 

verdict, an appellate court must treat the motion as an admission of the 

truth of all competent evidence submitted on behalf of the party against 

whom the motion is directed; such being the case, the party against 

whom the motion is directed is entitled to have every controverted fact 

resolved in its favor and to have the benefit of every inference which 

can reasonably be deduced from the evidence.

6. Motions for New Trial: Appeal and Error. An appellate court reviews 

a denial of a motion for new trial or, in the alternative, to alter or amend 

the judgment, for an abuse of discretion.

7. Rules of Evidence: Appeal and Error. When the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

Nebraska Supreme Court Online Library

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

10/16/2020 12:07 AM CDT
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trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

8. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit evidence over a hearsay objection or exclude evidence on hearsay grounds.

9. Prejudgment Interest: Appeal and Error. Awards of prejudgment 

interest are reviewed de novo.

10. Verdicts: Appeal and Error. When reviewing a jury verdict, the appellate court considers the evidence and resolves evidentiary conflicts in 

favor of the successful party.

11. Verdicts: Juries: Appeal and Error. A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent 

evidence presented to the jury upon which it could find for the successful party.

12. Courts: Appeal and Error. Appellate review of a district court’s use of 

inherent power is for an abuse of discretion.

13. Standing: Jurisdiction: Proof. A party invoking a court’s or tribunal’s 

jurisdiction bears the burden of establishing the elements of standing.

14. Standing: Jurisdiction. Standing requires that a litigant have such a 

personal stake in the outcome of a controversy as to warrant invocation 

of a court’s jurisdiction and justify exercise of the court’s remedial pow

ers on the litigant’s behalf.

15. Leases: Words and Phrases. A lease is a species of contract for the 

possession and profits of land and tenements, either for life or for a 

certain period of time, or during the pleasure of the parties, and the 

essential elements of a contract must be present.

16. Actions: Landlord and Tenant. In an action for rent, it is sufficient to 

show a contract with plaintiff and a holding under him or her; plaintiff’s 

title or right of possession is immaterial.

17. Rules of Evidence: Proof. There is no general rule of evidence 

that a party must produce the best evidence which the nature of the 

case permits.

18. Trial: Evidence: Appeal and Error. In a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly prejudiced 

a substantial right of the complaining party.

19. ____: ____: ____. Erroneous admission of evidence does not require 

reversal if the evidence is cumulative and other relevant evidence, properly admitted, supports the finding by the trier of fact.

20. Prejudgment Interest. Neb. Rev. Stat. § 45-104 (Reissue 2010) 

applies to four types of judgments: (1) money due on any instrument 

in writing; (2) settlement of the account from the day the balance shall 
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be agreed upon; (3) money received to the use of another and retained 

without the owner’s consent, express or implied, from the receipt 

thereof; and (4) money loaned or due and withheld by unreasonable 

delay of payment.

21. Rules of the Supreme Court: Pleadings: Prejudgment Interest: 

Notice. Compliance with Neb. Ct. R. Pldg. § 6-1108(a) is not determina

tive where entitlement to interest is based on statute and the adverse 

party had notice and an opportunity to be heard prior to judgment.

22. Leases: Prejudgment Interest. Interest under Neb. Rev. Stat. § 45-104 

(Reissue 2010) can be recovered on a lease, although the statute’s provisions may be superseded by terms set forth in the lease.

23. Claims: Prejudgment Interest. Whether a claim is liquidated or unliquidated is immaterial with respect to a litigant’s ability to recover prejudgment interest under Neb. Rev. Stat. § 45-104 (Reissue 2010).

24. Rules of Evidence: Words and Phrases. Authentication or identification of evidence is a condition precedent to its admission and is satisfied 

by evidence sufficient to support a finding that the matter in question is 

what its proponent claims.

25. Rules of Evidence: Proof. A proponent of evidence is not required to 

conclusively prove the genuineness of the evidence or to rule out all 

possibilities inconsistent with authenticity.

26. Rules of Evidence: Records: Words and Phrases. The term “data 

compilation” in Neb. Rev. Stat. § 27-803(5)(b) (Reissue 2016) is broad 

enough to include records furnished by third parties with knowledge of 

the relevant acts, events, or conditions if the third party has a duty to 

make the records and the holder of the record routinely compiles and 

keeps them.

27. Leases: Real Estate: Taxes: Assessments. The right to recover real 

estate taxes and assessments under a lease depends upon the wording of 

the lease contract.

28. Taxes: Interest: Penalties and Forfeitures: Costs. It is a general rule 

that in the absence of an express statute to the contrary, interest, penalties, and costs collected on delinquent taxes follow the tax.

29. Appeal and Error. An argument that does little more than restate an 

assignment of error does not support the assignment, and an appellate 

court will not address it.

30. Actions: Pleadings: Notice. Under Nebraska’s liberal pleading regime 

for civil actions, a party is required to set forth only a short and plain 

statement of the claim showing the pleader’s entitlement to relief and is 

not required to plead legal theories or cite appropriate statutes so long as 

the pleading gives fair notice of the claims asserted.

31. Leases: Damages. When a lease provides for late charges, they may be 

recoverable as damages.
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32. Appeal and Error: Words and Phrases. Plain error is error plainly 

evident from the record and of such a nature that to leave it uncorrected 

would result in damage to the integrity, reputation, or fairness of the 

judicial process.

33. Courts: Jurisdiction. A district court, as a court of general jurisdiction, 

has inherent power to do all things necessary for the proper administration of justice and equity within the scope of its jurisdiction.

34. Rules of the Supreme Court: Judges: Motions for Continuance. Trial 

judges are encouraged to implement firm, consistent procedures for 

minimizing continuances to meet case progression standards.

35. Trial: Judges. A trial judge has broad discretion over the conduct of 

a trial.

36. Affidavits: Public Officers and Employees. In connection with an affidavit, a notary public completes a certificate, known as a jurat, which 

confirms that the affiant appeared before the notary, attested to the truth 

of his or her statements, and signed the affidavit.

37. Oaths and Affirmations: Affidavits: Public Officers and Employees.

The fact that an affiant signed an affidavit in the presence of a notary 

and that the affiant’s signature was in fact notarized is sufficient as an 

oath or affirmation.

38. Affidavits. Unless required by statute, an omission in a jurat that an 

affidavit was sworn to will not be fatal if the fact otherwise appears.

39. Judgments: Words and Phrases. A court abuses its discretion when 

its decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, and 

evidence.

40. 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 Douglas County: J 

Russell Derr, Judge. Affirmed.

W. Patrick Betterman, P.C., L.L.O., for appellants.

William F. Hargens and Lauren R. Goodman, of McGrath, 

North, Mullin & Kratz, P.C., L.L.O., and Gregory M. Bordo and 

Christopher J. Petersen, of Blank Rome, L.L.P., for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.
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Cassel, J.

I. INTRODUCTION

After a tenant breached its written leases on two commercial 

properties, the landlord obtained a money judgment—based 

upon a jury’s special verdict for “[u]npaid rent and late fees” 

and “[u]npaid taxes.” The tenant appeals, and the landlord 

cross-appeals. We find no merit in the tenant’s numerous arguments—challenging the landlord’s standing, evidentiary rulings, damages based on lease provisions governing late fees and 

real estate taxes, statutory prejudgment interest, 1 and expenses 

awarded for a trial delay caused by the tenant’s last-minute 

discharge of its lawyer. Not reaching the cross-appeal of an 

evidentiary ruling, we affirm the district court’s judgment.

II. BACKGROUND

We begin with a brief background. Additional facts will be 

discussed, as necessary, in the analysis section.

As landlord, AVG Partners I, LLC, also known as AVG 

Partners (AVG), sued its tenant’s assignee, Genesis Health 

Clubs of Midwest, LLC, and its original tenant, 24 Hour 

Fitness USA, Inc. (collectively Genesis), for breaches of two 

commercial leases for property in Omaha, Nebraska. Each 

written lease was for a building that was used as a fitness club. 

One was located on South 145th Plaza (145th Plaza) and the 

other on North 118th Circle (North Circle).

In April 2017, Genesis closed the North Circle facility and 

vacated the premises even though the lease did not expire until 

October 2019. It failed to make any of the monthly $63,154.29 

rent payments for April 2017 or thereafter and failed to pay 

property taxes. AVG sent Genesis a notice of default each 

month from April 2017 to April 2019.

With respect to the 145th Plaza lease, Genesis paid onehalf of the $56,291.67 monthly rent due from September 

2017 through June 2018. In response to the insufficient rent 

1 See Neb. Rev. Stat. § 45-104 (Reissue 2010).
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payments, AVG sent notices of default. Despite the notices 

of default, Genesis never paid the remaining half of the rent 

due from September 2017 through June 2018. Since June 

2016, Genesis had not paid any of the property taxes levied on 

145th Plaza.

The matter proceeded to a jury trial. Genesis did not dispute 

the amounts of monthly rent owed under the written leases. 

Nor was there any dispute that Genesis breached the leases by 

failing to pay rent and real property taxes. In Genesis’ opening statement, counsel informed the jury that there were two 

reasons why AVG was not owed all the money it claimed: 

AVG’s failure to mitigate the loss and its failure to give the 

required notice.

The jury returned a special verdict in AVG’s favor. Regarding 

the North Circle property, it found that AVG met its burden of 

proving Genesis breached the lease agreement, causing AVG 

damages of $1,657,800 for unpaid rent and late fees from 

April 1, 2017, to the date of the verdict and of $264,937.47 for 

unpaid taxes payable to that date. The jury found that Genesis 

did not meet its burden of proving AVG failed to take reasonable steps to minimize its damages. Regarding the property at 

145th Plaza, the jury found that AVG met its burden of proving Genesis breached the lease agreement. According to the 

verdict, AVG’s damages were $303,974.96 in unpaid rent and 

late fees from September 20, 2017, to the date of the verdict 

and $236,745.77 in unpaid taxes payable to that date. The court 

entered judgment on the verdict and further awarded prejudgment interest.

Genesis appealed, and AVG cross-appealed. We moved the 

case to our docket. 2

III. ASSIGNMENTS OF ERROR

[1] Genesis assigned 14 errors, most of which contained 

multiple subparts. An alleged error must be both specifically 

2 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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assigned and specifically argued in the brief of the party 

asserting the error to be considered by an appellate court. 3 We 

address only those errors both assigned and argued.

Genesis alleges, consolidated and restated, that the court 

erred in (1) failing to find that AVG lacked standing because 

it failed to prove its ownership of the properties at issue, 

(2) awarding prejudgment interest, (3) failing to reduce the special verdict for penalty interest on taxes and late fees for both 

properties and failing to grant Genesis a new trial on late fees, 

(4) admitting certain exhibits and testimony into evidence, and 

(5) awarding sanctions of $69,179.19.

On cross-appeal, AVG assigns that the court erred in sustaining Genesis’ hearsay objection to the admission of exhibit 132.

IV. STANDARD OF REVIEW

[2,3] Standing is a jurisdictional component of a party’s 

case because only a party who has standing may invoke the 

jurisdiction of a court. 4 The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion 

independent of the trial court. 5

[4,5] A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue 

should be decided as a matter of law. 6 In reviewing a trial 

court’s ruling on a motion for directed verdict, an appellate 

court must treat the motion as an admission of the truth of all 

competent evidence submitted on behalf of the party against 

whom the motion is directed; such being the case, the party 

against whom the motion is directed is entitled to have every 

3 TNT Cattle Co. v. Fife, 304 Neb. 890, 937 N.W.2d 811 (2020).

4 In re Maint. Fund Trust of Sunset Mem. Park Chapel, 302 Neb. 954, 925 

N.W.2d 695 (2019).

5 Id.

6 Anderson v. Babbe, 304 Neb. 186, 933 N.W.2d 813 (2019).
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controverted fact resolved in its favor and to have the benefit 

of every inference which can reasonably be deduced from 

the evidence. 7

[6] An appellate court reviews a denial of a motion for new 

trial or, in the alternative, to alter or amend the judgment, for 

an abuse of discretion. 8

[7,8] When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

an appellate court reviews the admissibility of evidence for 

an abuse of discretion. 9 Apart from rulings under the residual 

hearsay exception, an appellate court reviews for clear error 

the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to 

admit evidence over a hearsay objection or exclude evidence 

on hearsay grounds. 10

[9] Awards of prejudgment interest are reviewed de novo. 11

[10,11] When reviewing a jury verdict, the appellate court 

considers the evidence and resolves evidentiary conflicts in 

favor of the successful party. 12 A jury verdict may not be set 

aside unless clearly wrong, and it is sufficient if there is competent evidence presented to the jury upon which it could find 

for the successful party. 13

[12] Appellate review of a district court’s use of inherent 

power is for an abuse of discretion. 14

7 Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435 

(2018).

8 Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).

9 Id.

10 Pantano v. American Blue Ribbon Holdings, 303 Neb. 156, 927 N.W.2d 

357 (2019).

11 Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).

12 Jacobs Engr. Group v. ConAgra Foods, supra note 7.

13 Id.

14 Bohling v. Bohling, 304 Neb. 968, 937 N.W.2d 855 (2020).
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V. ANALYSIS

1. Assignment of Leases to AVG

(a) Additional Background

Genesis moved for a directed verdict on the basis that 

there was no evidence of an assignment of the lessor’s interest. Genesis’ counsel noted that there was no deed showing 

the conveyance of the leased property to AVG and moved to 

dismiss on the ground that AVG did not have standing. The 

court overruled the motion, stating that the evidence as a whole 

demonstrated AVG had the right to enforce the agreements and 

collect rent. The court also overruled Genesis’ posttrial motion 

to set aside the verdict and judgment and motion for new trial 

asserting that AVG failed to prove the assignments.

(b) Discussion

[13,14] Genesis argues that AVG’s claims fail, because 

AVG did not prove an assignment of the written leases to it. 

And in the absence of the assignment, it challenges AVG’s 

standing. A party invoking a court’s or tribunal’s jurisdiction 

bears the burden of establishing the elements of standing. 15

Standing requires that a litigant have such a personal stake 

in the outcome of a controversy as to warrant invocation of a 

court’s jurisdiction and justify exercise of the court’s remedial 

powers on the litigant’s behalf. 16 As discussed below, the evidence supported AVG’s status as the landlord under the leases, 

and as the landlord, AVG obviously had a personal stake in 

this action.

[15,16] This is an action for two claims of breach of a written contract. A lease is a species of contract for the possession and profits of land and tenements, either for life or for a 

certain period of time, or during the pleasure of the parties, 

and the essential elements of a contract must be present. 17

15 In re Maint. Fund Trust of Sunset Mem. Park Chapel, supra note 4.

16 Id.

17 Krance v. Faeh, 215 Neb. 242, 338 N.W.2d 55 (1983).
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In an action for rent, it is sufficient to show a contract with 

plaintiff and a holding under him or her; plaintiff’s title or 

right of possession is immaterial. 18 Generally the relation of 

landlord and tenant is founded upon express contract, but 

such relation may be presumed from the conduct of the parties in the premises. 19 One in exclusive possession of the real 

estate of another with the latter’s knowledge, in the absence 

of all evidence on the subject, will be presumed in possession by the owner’s permission. 20 It is well settled that a tenant cannot, while occupying the premises, dispute his or her 

landlord’s title. 21 And the estoppel of a tenant to deny the title 

of his or her landlord extends to everyone in privity with the 

landlord, and it inures to the benefit of any person to whom 

the landlord’s title may pass, and continues until possession is 

actually surrendered. 22

[17] Genesis emphasizes the absence of a document assigning the leases, but it was not essential. There is no general rule 

of evidence that a party must produce the best evidence which 

the nature of the case permits. 23 Thus, we have explained that 

there is no hierarchy of evidence. 24 Here, the evidence at trial 

demonstrated Genesis’ understanding that AVG was its landlord 

under the leases; there was no evidence to the contrary. Genesis 

made rent checks payable to “AVG Partners I, LLC.” When 24 

Hour Fitness USA entered into a June 2016 lease assignment 

18 Bartlett v. Robinson, 52 Neb. 715, 72 N.W. 1053 (1897).

19 Steen v. Scheel, 46 Neb. 252, 64 N.W. 957 (1895).

20 Skinner v. Skinner, 38 Neb. 756, 57 N.W. 534 (1894).

21 See, Bender v. James, 212 Neb. 77, 321 N.W.2d 436 (1982); Penn Mutual 

Life Ins. Co. v. Sweeney, 132 Neb. 624, 273 N.W. 46 (1937); Kouma v. 

Murphy, 129 Neb. 892, 263 N.W. 211 (1935); Carson v. Broady, 56 Neb. 

648, 77 N.W. 80 (1898).

22 Hackney v. McIninch, 79 Neb. 128, 112 N.W. 296 (1907).

23 Burgardt v. Burgardt, 304 Neb. 356, 934 N.W.2d 488 (2019).

24 Id.
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agreement with Genesis, it listed the leases involved here and 

identified the chain of assignments leading to the assignments 

of the leases to AVG. In April 2017, when Genesis vacated 

the North Circle premises, its law firm notified AVG, stating 

that “AVG Partners I, LLC” and Genesis were parties to the 

lease. Letters from the Douglas County treasurer concerning 

delinquent real estate taxes for 145th Plaza and North Circle 

were addressed to “AVG Partners I LLC” as the owner of 

the properties.

[18,19] In connection with this issue, Genesis argues that the 

court erred in admitting the opinion of Tere Throenle, AVG’s 

chief financial officer, regarding AVG’s ownership of the properties. In a civil case, the admission or exclusion of evidence 

is not reversible error unless it unfairly prejudiced a substantial 

right of the complaining party. 25 Erroneous admission of evidence does not require reversal if the evidence is cumulative 

and other relevant evidence, properly admitted, supports the 

finding by the trier of fact. 26 Here, other properly admitted 

evidence demonstrated AVG’s status as landlord under the 

leases. Assuming, without deciding, that it was error to admit 

Throenle’s opinion on ownership of the properties, any such 

error was harmless.

We conclude that the assignments of error directed to AVG’s 

alleged failure to prove assignment of the leases lack merit.

2. Prejudgment Interest

(a) Additional Background

AVG filed its operative complaint in November 2017, setting forth when breaches occurred. The complaint requested 

damages in an amount to be proved at trial and “[f]or all other 

relief that the Court deems just and proper.” But it did not specifically request prejudgment interest.

25 Weyh v. Gottsch, supra note 11.

26 See Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).
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Prejudgment interest was litigated at trial. Throenle testified 

that AVG calculated 12 percent interest on the outstanding rent. 

It was Throenle’s understanding that 12 percent interest was 

the statutory amount of interest applicable under Nebraska law. 

In connection with Genesis’ motion for directed verdict, counsel and the court discussed interest and the liquidated nature 

of the claims. In closing arguments, AVG’s counsel stated, 

“[W]hen . . . Throenle was testifying, we showed you a couple 

of charts that had some numbers on them . . . . Those numbers 

that were provided during . . . Throenle’s testimony, included, 

. . . a 12 percent prejudgment interest amount that was added 

to it.” Counsel stated that the court would calculate the interest 

charge after trial.

The court awarded AVG “prejudgment interest in the 

amount of $254,118.78 (as of May 22, 2019, with prejudgment interest accruing thereon at $611.50 per day until entry of 

judgment).”

(b) Discussion

(i) Application of Recent Decision

Genesis argues that our recent decision in Weyh v. Gottsch 27

should be applied only prospectively. Weyh was released after 

trial but 11 days before the court entered its order on the jury 

verdict and on prejudgment interest. Genesis contends that it 

would be inequitable to apply Weyh retroactively, because litigants have operated under the belief that prejudgment interest 

under § 45-104 was not allowed for unliquidated claims except 

when Neb. Rev. Stat. § 45-103.02 (Reissue 2010) applied.

In Weyh, we clarified Nebraska’s existing law on prejudgment interest. We held that § 45-103.02(2) was not the 

exclusive means of recovering prejudgment interest. We 

explained that “§§ 45-103.02 and 45-104 provide[d] separate 

and independent means of recovering prejudgment interest, 

27 Weyh v. Gottsch, supra note 11.
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and we h[e]ld that when a claim is of the types enumerated in 

§ 45-104, then prejudgment interest may be recovered without 

regard to whether the claim is liquidated.” 28 As we discuss 

below, § 45-104 has long been part of Nebraska law.

In rare circumstances, fairness and equity dictate that a 

newly announced rule of law be effective as of the date of the 

court’s opinion. 29 Nearly half a century ago, the U.S. Supreme 

Court set forth the following standard for prospective application of a substantive change in law:

First, the decision to be applied nonretroactively must 

establish a new principle of law, either by overruling 

clear past precedent on which litigants may have relied 

. . . or by deciding an issue of first impression whose 

resolution was not clearly foreshadowed . . . . Second, 

[the court] “must . . . weigh the merits and demerits in 

each case by looking to the prior history of the rule in 

question, its purpose and effect, and whether retrospective operation will further or retard its operation.” . . . 

Finally, [the court must weigh] the inequity imposed by 

retroactive application, for “[w]here a decision of [the 

court] could produce substantial inequitable results if 

applied retroactively, there is ample basis in our cases 

for avoiding the ‘injustice or hardship’ by a holding of 

nonretroactivity.” 30

Genesis’ rationale seems to be that one who violates a 

contract falling squarely within the statute should nonetheless 

avoid prejudgment interest because this court had judicially 

imposed a limitation appearing nowhere in the statute. We see 

no unfairness, inequity, injustice, or hardship in enforcing the 

statute as written. We will apply Weyh here.

28 Id. at 283, 929 N.W.2d at 45.

29 See Commercial Fed. Sav. & Loan v. ABA Corp., 230 Neb. 317, 431 

N.W.2d 613 (1988).

30 Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S. Ct. 349, 30 L. Ed. 

2d 296 (1971) (citations omitted).
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(ii) Compliance With 

Neb. Ct. R. Pldg. § 6-1108(a)

Genesis argues that AVG’s failure to comply with a pleading rule is fatal to its claim for prejudgment interest. Section 

6-1108(a) states in part, “If the recovery of money be demanded, 

the amount of special damages shall be stated but the amount 

of general damages shall not be stated; and if interest thereon 

be claimed, the time from which interest is to be computed 

shall also be stated.”

The above-quoted language of § 6-1108(a) is not a new 

requirement. It was long codified in statute. 31 The statutory language was repealed in 2002, 32 when the Legislature 

“amend[ed] the civil procedure code of Nebraska from that 

of a code pleading system to a notice pleading system.” 33 In 

connection with the repeal, the Legislature enacted a statute 

empowering this court to promulgate rules of pleading to apply 

in civil actions. 34 Hence, the statutory language became part of 

pleading rule § 6-1108(a).

Genesis directs our attention to our cases stating that a 

party was not entitled to prejudgment interest where it was 

not requested in the party’s complaint. 35 In Higgins v. Case 

Threshing Machine Co.,

 36 we observed that the petition did not 

mention interest, that a statute required the time from which 

interest is to be computed to be stated, and that we did not 

allow interest in two earlier cases where it was not prayed for 

31 See, e.g., Rev. Stat. §§ 92 (1867) and 7664 (1913), Comp. Stat. §§ 8608 

(1922) and 20-804 (1929), and Neb. Rev. Stat. § 25-804 (1943).

32 See 2002 Neb. Laws, L.B. 876, § 92.

33 Introducer’s Statement of Intent, L.B. 876, Judiciary Committee, 97th 

Leg., 2d Sess. (Jan. 25, 2002).

34 See, 2002 Neb. Laws, L.B. 876, § 1; Neb. Rev. Stat. § 25-801.01 (Reissue 

2016).

35 See, Life Investors Ins. Co. v. Citizens Nat. Bank, 223 Neb. 663, 392 

N.W.2d 771 (1986); Higgins v. Case Threshing Machine Co., 95 Neb. 3, 

144 N.W. 1037 (1914).

36 Higgins v. Case Threshing Machine Co., supra note 35.
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in the petition. In one of those earlier cases, we stated that 

where “the plaintiff does not pray for interest, but simply prays 

a judgment for $200 and costs,” it was error to authorize the 

jury to add interest to whatever damages it found due. 37 In the 

other, we cited the statute and stated that it was error to permit 

the jury to include interest on the sum claimed in the absence 

of a prayer for interest in the petition. 38 In Life Investors Ins. 

Co. v. Citizens Nat. Bank,

 39 we cited Higgins and stated that 

prejudgment interest could not be awarded because it was not 

requested in the petition.

Significantly, there is no indication in these earlier cases of 

any statutory basis for an award of prejudgment interest. We 

stated in Weyh: “In Nebraska, there are two statutes that authorize recovery of prejudgment interest. The first, § 45-104, was 

enacted in 1879, and the second, § 45-103.02, was enacted in 

1986 and amended in 1994.” 40

Section 45-103.02 could not have supplied a basis for an 

award in the cases Genesis cites, because it was not in effect 

at the time of these pre-1987 cases. As originally adopted, 

§ 45-103.02 applied to “‘all causes of action accruing on or 

after January 1, 1987.’” 41

[20] Section 45-104 and its prior codifications were in 

effect, but it is not clear that the statute would have applied 

to the earlier cases. “Since its adoption more than a century 

ago, § 45-104 has identified four types of claims—all contract based—under which prejudgment interest is allowed.” 42

Section 45-104 applies to four types of judgments: (1) money 

due on any instrument in writing; (2) settlement of the 

37 City of South Omaha v. Ruthjen, 71 Neb. 545, 549, 99 N.W. 240, 242 

(1904).

38 See Rawlings v. Anheuser-Busch Brewing Ass’n., 1 Neb. (Unoff.) 555, 95 

N.W. 792 (1901).

39 Life Investors Ins. Co. v. Citizens Nat. Bank, supra note 35.

40 Weyh v. Gottsch, supra note 11, 303 Neb. at 301, 929 N.W.2d at 55.

41 Id. at 306, 929 N.W.2d at 58. See § 45-103.02 (Reissue 1988).

42 Weyh v. Gottsch, supra note 11, 303 Neb. at 301, 929 N.W.2d at 55.
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account from the day the balance shall be agreed upon; (3) 

money received to the use of another and retained without the 

owner’s consent, express or implied, from the receipt thereof; 

and (4) money loaned or due and withheld by unreasonable 

delay of payment. 43 But Higgins was an action upon an appeal 

bond, City of South Omaha v. Ruthjen was an action for damages to property resulting from grading of a street, and Life 

Investors Ins. Co. was an action to recover overpayment of 

insurance proceeds under alternative theories of fraudulent 

misrepresentation and mutual mistake. 44 It does not appear that 

there would have been any entitlement to prejudgment interest 

under § 45-104 in these cases.

Genesis also relies on Albrecht v. Fettig,

 45 a recent decision 

by the Nebraska Court of Appeals. There, the court rejected 

an argument that a plaintiff’s request for “‘further relief as the 

Court deems just and equitable’” sufficiently put the defendant 

on notice that prejudgment interest could be awarded. 46 The 

decision did not mention Weyh 47—decided 1 month earlier—

and erroneously stated that “[p]rejudgment interest may be 

awarded only as provided in . . . § 45-103.02.” 48 The Court of 

Appeals recognized that § 45-103.02(2) was adopted after Life 

Investors Ins. Co. and that tension appeared to exist between 

the language of § 45-103.02(2) that prejudgment interest “shall 

accrue” and § 6-1108(a). The Court of Appeals reasoned:

[W]e do not believe that this tension is irreconcilable. 

Section 45-103.02(2) clearly sets out the availability of 

prejudgment interest. However, the court rule (adopted as 

43 Weyh v. Gottsch, supra note 11.

44 See, Life Investors Ins. Co. v. Citizens Nat. Bank, supra note 35; Higgins 

v. Case Threshing Machine Co., supra note 35; City of South Omaha v. 

Ruthjen, supra note 37.

45 Albrecht v. Fettig, 27 Neb. App. 371, 932 N.W.2d 331 (2019).

46 Id. at 387, 932 N.W.2d at 342.

47 Weyh v. Gottsch, supra note 11.

48 Albrecht v. Fettig, supra note 45, 27 Neb. App. at 387, 932 N.W.2d at 342.
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part of the introduction of notice pleading to Nebraska) 

is concerned with litigants having adequate notice of the 

relief a plaintiff is seeking to obtain. Therefore, although 

the rule does place a procedural condition on a plaintiff’s 

ability to recover prejudgment interest, it does not negate 

a plaintiff’s ability to recover. Moreover, the rule secures 

a defendant’s ability to have notice of the entire scope of 

the relief requested and prepare defenses thereto. 49

In Albrecht, like in the earlier cases, there was no indication 

that the defendant had notice of a claim for prejudgment interest or had an opportunity to argue against an award of such 

interest prior to entry of judgment.

The district court cited a case decided by the Court of 

Appeals shortly before Albrecht. In Farm & Garden Ctr. v. 

Kennedy,

 50 the complaint requested interest under Neb. Rev. 

Stat. § 45-101.04 (Reissue 2010), but the plaintiff ultimately 

sought interest under § 45-104. The Court of Appeals reasoned 

that “[t]here was no question [the plaintiff] was seeking interest on unpaid balances preceding the entry of a final judgment” 

and that “there was no surprise or prejudice” to the defendant. 51

The court then stated the Nebraska Supreme Court has held that 

“if a statutory basis exists for an award of interest, . . . interest 

can be awarded even if the petition is silent as to a request for 

interest.” 52 For that proposition, the Court of Appeals cited to 

Thacker v. State,

 53 an eminent domain proceeding. In Thacker, 

interest was awarded under Neb. Rev. Stat. § 76-711 (1943), 

but the condemnor claimed the award was erroneous because 

49 Albrecht v. Fettig, supra note 45, 27 Neb. App. at 389, 932 N.W.2d at 343.

50 Farm & Garden Ctr. v. Kennedy, 26 Neb. App. 576, 921 N.W.2d 615 

(2018).

51 Id. at 600, 921 N.W.2d at 632.

52 Id.

53 Thacker v. State, 193 Neb. 817, 229 N.W.2d 197 (1975), overruled in part 

on other grounds, Langfeld v. Department of Roads, 213 Neb. 15, 328 

N.W.2d 452 (1982).
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the petition did not pray for interest. We disagreed, stating 

that “[t]he owner’s right to interest rests upon the provisions 

of [§ 76-711], and not upon the prayer of the petition.” 54 In a 

2009 case, the Court of Appeals reached the same conclusion, 

noting that although the plaintiff did not request interest in the 

prayer of its petition, the plaintiff was entitled to interest under 

§ 76-711 (Reissue 2003). 55

[21] Under the circumstances before us, we agree with the 

district court that AVG is not precluded from recovering prejudgment interest under § 6-1108(a). Specifically requesting 

interest in the complaint is encouraged, because it clearly puts 

the opposing party on notice. But compliance with § 6-1108(a) 

is not determinative where entitlement to interest is based on 

statute and the adverse party had notice and an opportunity to 

be heard prior to judgment. That is the situation here, where 

prejudgment interest was the subject of extensive argument 

prior to judgment.

(iii) Liquidated Nature of Claims 

and Commencement

Genesis advances two more reasons why AVG should not be 

able to recover prejudgment interest: AVG’s rent claims were 

unliquidated and it failed to prove when prejudgment interest 

commenced. Both reasons fail.

[22,23] Section 45-104 allows for interest “on money due 

on any instrument in writing.” We have recognized that interest under § 45-104 can be recovered on a lease, although the 

statute’s provisions may be superseded by terms set forth in 

the lease. 56 And in Weyh, we clarified that § 45-104 contained 

no requirement that the claims described therein must also be 

liquidated in order to recover prejudgment interest. 57 Thus, 

54 Id. at 821, 229 N.W.2d at 201.

55 See Walter C. Diers Partnership v. State, 17 Neb. App. 561, 767 N.W.2d 

113 (2009).

56 See Prudential Ins. Co. v. Greco, 211 Neb. 342, 318 N.W.2d 724 (1982).

57 Weyh v. Gottsch, supra note 11.
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whether a claim is liquidated or unliquidated is immaterial with 

respect to a litigant’s ability to recover prejudgment interest 

under § 45-104.

Genesis also argues that there was a failure of proof regarding when interest should commence. According to Genesis, 

“AVG failed to prove it gave notice in any manner specified 

in §19.2 and thus failed to prove the date prejudgment interest 

commenced, if at all.” 58 We disagree.

Section 19.2 of the written leases addressed the notice that 

must be given, stating that notice must be given in writing and 

would be deemed effective “(2) business days after deposit in 

the United States mail in the County, certified and postage prepaid” or “upon receipt if sent in any other way.” The notices of 

default showed that all were sent via email and that some were 

additionally sent via certified mail. The co-owner and president 

of Genesis admitted receiving letters, emails, and notices of 

default from AVG’s counsel. The evidence sufficiently established Genesis’ receipt of the notices of default.

Section 15.1 of the leases provided that default occurs if 

the tenant fails to pay rent within 10 days of written notice of 

nonpayment. The first notice of default for North Circle was 

sent on April 4, 2017. Thus, prejudgment interest on that claim 

of unpaid rent commenced running on April 15. The commencement date for prejudgment interest for the other claims 

of unpaid rent can similarly be ascertained by adding 11 days 

to the date on which the notice of default was sent.

We conclude that Genesis’ challenges to the award of prejudgment interest lack merit.

3. Tax Penalties

(a) Additional Background

The written leases addressed payment of real property taxes. 

They obligated the tenant to pay “any tax, assessment, charge, 

license, fees, levy, real property or other tax” levied against 

the premises. The leases required that the landlord send the 

58 Brief for appellants at 34.
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tax-due notice to the tenant and that the tenant “pay said taxes 

prior to delinquency dates.” There is no dispute that Genesis 

failed to pay the property taxes due under both leases for tax 

years 2016 through 2018.

Throenle instructed AVG’s law firm to issue notices of 

default for delinquent property taxes concerning 145th Plaza. 

Because property taxes on these properties were “billed” every 

6 months, the notices were sent August 2, 2017; April 2 and 

August 2, 2018; and April 10, 2019. The notices of default 

identified the amount of unpaid property taxes. To obtain such 

information, AVG consulted the Douglas County treasurer’s 

website. AVG followed up with a telephone call to confirm 

whether any payment had been made that was not posted to 

the website.

Throenle testified that she received a letter in the mail from 

the Douglas County treasurer regarding a listing for a tax lien 

sale of the delinquent property taxes for 145th Plaza. She relied 

on the information in the letter to provide Genesis with the 

amounts that were unpaid. According to Throenle, the letter 

was something that AVG maintains in its files for the property 

in the ordinary course of its business. Douglas County also 

charged interest and penalties for late payment. To ascertain 

the amount owed on any given day, Throenle testified that she 

called the “Assessor’s” office to obtain the interest charges 

through that actual day. She last called on April 26, 2019.

Similarly, Throenle instructed AVG’s law firm to send 

notices of default to Genesis for nonpayment of property taxes 

on the North Circle property. The amounts stated on the notices 

were obtained from documentation from the Douglas County 

treasurer. Throenle testified regarding her efforts to determine 

the amount of property taxes, interest, and penalties due for the 

North Circle property on any given day. She obtained the total 

amount due as of April 26, 2019.

The court received into evidence exhibits 117 and 123, 

which set forth a compilation of AVG’s alleged damages for 

each respective lease. Throenle testified that she prepared the 

exhibits with one of AVG’s attorneys and that she obtained 
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the information contained in the exhibits from AVG’s accounting records and from the “County Assessor.” Throenle also 

testified that the information on the exhibits was contained in 

exhibits that had been admitted into evidence.

The exhibit for 145th Plaza, exhibit 117, showed unpaid rent 

from September 2017 through June 2018 of $281,458.30, with 

late charges at 5 percent amounting to $14,072.92. Late charges 

for August, September, and November 2018 totaled $8,443.74. 

The unpaid property taxes, including interest and late fees, as of 

April 26, 2019, were calculated to be $236,745.77. According 

to the exhibit, AVG’s total damages for 145th Plaza as of 

May 6, 2019, were $540,720.73. The exhibit for North Circle, 

exhibit 123, showed total unpaid rent from April 2017 to April 

2019 to be $1,578,857.25 and total late charges at 5 percent 

during that period to be $78,942.75. The total unpaid property 

taxes, including interest and late fees, were $264,937.47. The 

exhibit showed AVG’s total damages as of May 6, 2019, to be 

$1,922,737.47.

(b) Discussion

(i) Admissibility of Exhibits and Testimony

Genesis both assigned and argued that the court erred in 

admitting exhibits 116 and 122, which contained tax information from the Douglas County treasurer, and exhibits 117 and 

123, which showed a compilation of damages for the respective leases. Genesis also argues that Throenle’s testimony about 

her telephone calls to the “Assessor’s Office” should not have 

been admitted.

a. Exhibits 116 and 122

Exhibit 116—pertaining to 145th Plaza—and exhibit 122—

concerning North Circle—were five-page documents containing similar information from the Douglas County treasurer 

regarding taxes for the two properties. The first two pages of 

each exhibit were black-and-white printouts titled “Douglas 

County Treasurer - Real Property Tax Inquiry,” with each 

page appearing to contain identical information, purportedly 
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from the treasurer’s official website. The third page was a 

February 2018 letter from the treasurer to AVG setting forth 

the amount of delinquent taxes and the amount that needed 

to be paid by February 28 to avoid additional penalty interest 

and prevent a tax lien. The fourth and fifth pages showed the 

tax billed each year, tax paid, and interest paid. The fourth 

page contained the interest calculation to February 28, and the 

“Grand Total Due” matched the amount stated in the letter. 

Throenle testified that the fourth and fifth pages were enclosed 

with the letter.

When AVG offered exhibits 116 and 122 into evidence, 

Genesis objected on numerous grounds, including that they 

failed to comply with the authenticity requirements of Neb. 

Rev. Stat. §§ 27-901 and 27-902 (Reissue 2016), that foundation was incomplete under Neb. Rev. Stat. § 27-1005 (Reissue 

2016), and that they were hearsay. The court overruled the 

objections and received the exhibits. In Genesis’ brief, it 

asserts that the exhibits were “unauthenticated hearsay.” 59

[24,25] Authentication or identification of evidence is a 

condition precedent to its admission and is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 60 A proponent of evidence 

is not required to conclusively prove the genuineness of the 

evidence or to rule out all possibilities inconsistent with 

authenticity. 61

Throenle’s testimony about the exhibits satisfied the authentication requirement. She identified the first two pages of 

each exhibit as a “print screen” or “printout.” Although she 

incorrectly stated at times that an exhibit was from the assessor’s website rather than that of the treasurer, the exhibit 

clearly showed that the documents were from the treasurer. 

A computer printout is admissible as a business record if the 

59 Brief for appellants at 38.

60 See § 27-901(1).

61 State v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018), modified on denial 

of rehearing 302 Neb. 492, 924 N.W.2d 64 (2019).
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offeror establishes a sufficient foundation in the record for 

its introduction. 62 Throenle testified that the last three pages 

were received by AVG from the Douglas County treasurer and 

maintained in AVG’s files in the ordinary course of business 

and in connection with establishing the taxes due. Through 

Throenle’s testimony, AVG provided the court with sufficient 

evidence to show that the documents were what they purported 

to be.

[26] To the extent the exhibits were hearsay, an exception to 

the hearsay rule applied. Under Neb. Rev. Stat. § 27-803(5)(b) 

(Reissue 2016), an exception to the hearsay rule includes

[a] memorandum, report, record, or data compilation, 

in any form, of acts, events, or conditions, other than 

opinions or diagnoses, that was received or acquired in 

the regular course of business by an entity from another 

entity and has been incorporated into and kept in the regular course of business of the receiving or acquiring entity; 

that the receiving or acquiring entity typically relies upon 

the accuracy of the contents of the memorandum, report, 

record, or data compilation; and that the circumstances 

otherwise indicate the trustworthiness of the memorandum, report, record, or data compilation, as shown by the 

testimony of the custodian or other qualified witness.

The term “data compilation” in § 27-803(5)(b) is broad enough 

to include records furnished by third parties with knowledge 

of the relevant acts, events, or conditions if the third party 

has a duty to make the records and the holder of the records 

routinely compiles and keeps them. 63 It is not disputed that the 

county treasurer had a duty to make such records.

Throenle testified extensively concerning her duties in 

administering the leases for AVG. She obtained the necessary information to include in notices of default regarding 

the amount of unpaid taxes. To do so, she would consult 

62 State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on 

other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).

63 See Arens v. NEBCO, Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
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information displayed on the treasurer’s website. She followed up with a telephone call, ensuring the accuracy of the 

website’s data. She also relied on the letter mailed to AVG 

from the treasurer, which letter AVG maintained in its files in 

the ordinary course of its business. The exhibits fit within the 

business record exception to hearsay.

We find no error or abuse of discretion in admitting exhibits 

116 and 122.

b. Throenle’s Testimony and 

Exhibits 117 and 123

After the court had received notices of default for 145th 

Plaza and data from the county treasurer in exhibit 116, 

Throenle testified that AVG determined the outstanding taxes, 

interest, and penalties for 145th Plaza via an April 26, 2019, 

telephone call. When asked what that amount was, Throenle 

answered, “I don’t recall the exact amount.” AVG’s counsel 

responded: “All right. We’ll provide that for you.” Counsel 

then had Throenle look at exhibit 117, which had not been 

offered into evidence at that point. Shortly thereafter, the 

exhibit was offered and received, and Throenle proceeded to 

testify to the amounts shown on the exhibit.

Throenle confirmed that she ascertained the unpaid property taxes for the North Circle property in the same manner 

as for 145th Plaza. After the court received notices of default 

concerning North Circle and the county treasurer’s data contained in exhibit 122, counsel showed Throenle exhibit 123. 

Throenle identified it as summaries that she prepared with 

counsel and testified that she obtained the information from 

documents that had been admitted into evidence and about 

which she had already testified. When asked if exhibit 123 

would be helpful to Throenle in testifying to the amounts owed 

by Genesis for the property, Throenle answered, “Yes.” AVG 

then offered the exhibit into evidence, and the court received it 

over Genesis’ objections. Throenle testified that she reviewed 

a chart for accuracy, and she later testified about the amounts 

displayed thereon.
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Genesis argues that Throenle’s testimony about the April 

26, 2019, telephone call to the treasurer’s office was hearsay 

and that exhibits 117 and 123—which contained the amount of 

unpaid property taxes, interest, and penalties based on the telephone call—were also hearsay. Genesis additionally challenges 

the overruling of its objections to exhibits 117 and 123 based 

on improper foundation for a summary under Neb. Rev. Stat. 

§ 27-1006 (Reissue 2016). Even if we assume there was error 

in admitting Throenle’s testimony or the exhibits, it would not 

be reversible error.

Exhibits 117 and 123 were offered during Throenle’s testimony. Throenle helped prepare the exhibits and was familiar 

with the information they contained. Importantly, she was 

subject to cross-examination at trial. The exhibits compiled 

evidence from the notices of default sent by AVG and from the 

county treasurer’s documents—evidence that, with one caveat, 

was already received at trial. The only information contained 

on exhibits 117 and 123 that was not already in evidence 

was the interest charges through a particular day. Aside from 

calling the treasurer’s office, Throenle was unaware of any 

other means to obtain the amount of unpaid taxes and interest 

charges due through any particular day. But determining that 

amount involved only a mathematical calculation. Because 

exhibits 117 and 123 were based on information already in 

evidence and otherwise determinable by use of a calculator, 

the only possible “prejudice” to Genesis was that it made the 

jury’s duty to determine damages too easy. We find no reversible error on that basis.

(ii) Inclusion of “Penalties” 

in Award for Taxes

Genesis argues that the jury’s special verdict erroneously 

included “[t]ax [p]enalties.” 64 The tax penalties to which 

Genesis refers are amounts assessed as statutory interest at 

64 Brief for appellant at 34.
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the rate of 14 percent on delinquent payments of taxes. 65 The 

county treasurer’s documents show that it also imposed a $5 

advertising charge. We have declared that interest imposed on 

an unpaid tax is a penalty. 66 Genesis contends that because the 

court instructed the jury that the measure of the damages was 

“[t]he amount of unpaid real estate taxes due,” it was error to 

include penalties as part of the award.

[27] Prudential Ins. Co. v. Greco 67 provides insight on the 

right to recover taxes and assessments under a lease. There, 

the lease provided: “‘Tenant shall be liable for and shall pay to 

either the Owner or the taxing authority before delinquent all 

taxes levied or assessed against or for leasehold improvements 

. . . .’” 68 Landlord presented testimony that it paid the full 

amount due on the taxes, including amounts due on tenant’s 

improvements. We stated: “The elements necessary to establish 

a right of recovery were that [landlord] paid taxes levied to 

the taxing authority; that included in the amount paid as taxes 

was a sum based upon tenant’s improvements; and that [tenant] 

owes [landlord] a sum certain for the payment of the taxes.” 69

We determined that landlord made out a prima facie case under 

provisions of the lease establishing the right to recover taxes 

paid for improvements. In other words, the right to recover real 

estate taxes and assessments under a lease depends upon the 

wording of the lease contract.

[28] The lease agreements here broadly defined Genesis’ 

obligation to pay real estate taxes. Under a statute governing 

collection of delinquent real estate taxes, interest is “collected 

the same as the tax upon which the interest accrues.” 70 Another 

statute declares taxes on real property to be a first lien on 

65 See Neb. Rev. Stat. § 45-104.01 (Reissue 2010).

66 See Ameritas Life Ins. v. Balka, 257 Neb. 878, 601 N.W.2d 508 (1999).

67 Prudential Ins. Co. v. Greco, supra note 56.

68 Id., 211 Neb. at 344, 318 N.W.2d at 726.

69 Id. at 345, 318 N.W.2d at 727.

70 Neb. Rev. Stat. § 77-207 (Reissue 2018).
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the property taxed. 71 It is a general rule that in the absence 

of an express statute to the contrary, interest, penalties, and 

costs collected on delinquent taxes follow the tax. 72 Here, 

§§ 2.1 and 7.2 of the leases define “‘Real Property Taxes’” 

to be “any tax, assessment, charge, license, fees, levy, real 

property or other tax” levied against the premises. (Although 

§ 2.1 refers to the definition contained in § 7.5, this appears 

to be a typographical error insofar as § 7.5 addresses utilities 

and makes no mention of taxes.) One definition of “charge” 

is “[p]ecuniary burden; expense, cost.” 73 We conclude that 

the county treasurer’s collections of statutory interest and the 

advertising fee fit within that definition. Because the county’s 

interest and advertising imposed a pecuniary burden on the real 

estate, they were “charges” as that term was used in the lease. 

Thus, the provisions of the lease made them recoverable as a 

component of “real estate taxes.”

(iii) Failure to Mitigate 

Tax Penalties

[29] Genesis assigned that AVG was barred from recovering 

tax penalties because it failed to mitigate them, but we do not 

resolve the insufficiently argued assignment. The totality of 

Genesis’ support for the assigned error contained in the argument section of its brief stated: “The tax penalties AVG seeks 

are avoidable. AVG’s failure to mitigate them bars its recovery. 

Tedd Bish Farm, Inc. v. Southwest Fencing Services, LLC, 291 

Neb. 527 (2015).” 74 An argument that does little more than 

restate an assignment of error does not support the assignment, 

and an appellate court will not address it. 75

71 See Neb. Rev. Stat. § 77-203 (Reissue 2018).

72 School District of the City of Omaha v. Adams, 147 Neb. 1060, 26 N.W.2d 

24 (1947).

73 “Charge,” Oxford English Dictionary Online, http://www.oed.com/view/

Entry/30686 (last visited Aug. 26, 2020).

74 Brief for appellants at 37.

75 Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).
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4. Late Charges for Nonpayment of Rent

(a) Additional Background

The written leases contained similar terms on payment of 

rent and late charges. They specified that rent was due on 

the first day of each month. According to the leases, the tenant acknowledged that its late payment of rent “will cause 

Landlord to incur costs not contemplated by this Lease, the 

exact amount of which is extremely difficult or impracticable 

to determine.” Therefore, if any installment of monthly rent 

was not received by the landlord within 10 days of the tenant’s 

receipt of a written notice of nonpayment, the tenant shall pay 

to the landlord “a one-time additional sum equal to five percent (5%) of the amount overdue as a late charge for each such 

overdue payment.”

Throenle explained that late rent payments caused AVG to 

incur administrative costs to calculate and verify amounts owed 

and to alert AVG’s attorneys to prepare a notice of default for 

the tenant. AVG then incurred legal fees in connection with 

counsel’s preparation of the notices. Throenle estimated that 

she spent 2 to 3 hours per month assisting with the notices 

of default and that the actual cost to AVG for her services in 

that regard was $150 an hour. Throenle testified that she was 

assisted by an individual who spent approximately 30 minutes 

to 1 hour each month at a cost of $30 to $40. Thus, Throenle 

testified that $370 a month for her work and that of the other 

individual was a fair estimate of costs incurred by AVG’s staff 

associated with notices of default, but AVG also incurred attorney fees. In contrast, the 5-percent late charge amounted to 

around $2,500 for the 145th Plaza lease and over $3,000 for 

the North Circle lease.

(b) Discussion

(i) Whether AVG Claimed 

Late Charges

Genesis argues that AVG should not have been able to 

recover late charges, because it failed to claim them. According 
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to Genesis, the complaint did not allege Genesis breached the 

leases by failing to pay late charges. We disagree.

[30] Under Nebraska’s liberal pleading regime for civil 

actions, a party is required to set forth only a short and plain 

statement of the claim showing the pleader’s entitlement to 

relief and is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of 

the claims asserted. 76 The complaint alleged that the leases 

required Genesis to “[p]ay late charges in the event of a failure 

to make timely rent payments.” It set forth an “amount of rent 

including late charges pursuant [to] the 145th Plaza Lease” 

that was due. And it further alleged that Genesis breached both 

leases by “[f]ailing to make timely rent payments . . . .” The 

complaint gave fair notice that AVG was seeking to recover 

late charges as a part of rent.

(ii) Whether Late Charges 

Are Recoverable

Genesis next contends that late charges were not recoverable 

for three reasons. We find no merit to its arguments.

First, Genesis argues that late fees were not included as 

recoverable damages in the jury instructions. The instructions 

stated that the “measure of the damage” was “[t]he amount of 

unpaid rent due” and “[t]he amount of unpaid real estate taxes 

due.” While the instructions did not separately identify late 

charges as a measure of damages, such charges fall within the 

definition of “rent” under the leases. Both of the leases define 

“rent” as “Monthly Rent and Additional Rent, collectively.” 

And they define “additional rent” to mean “any and all sums 

(whether or not specifically called ‘Additional Rent’ in this 

Lease) other than Monthly Rent which [tenant] is or becomes 

obligated to pay to Landlord under this Lease.” Thus, late 

charges are recoverable as a component of “rent.”

[31] Second, Genesis argues that late fees are a penalty and 

thus not recoverable as a matter of law. When a lease provides 

76 See Vasquez v. CHI Properties, 302 Neb. 742, 925 N.W.2d 304 (2019).
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for late charges, they may be recoverable as damages. 77 Here, 

the leases provided for a 5-percent late charge on overdue 

payments and the leases’ definition of rent encompassed such 

charges. They were recoverable as damages.

Third, Genesis claims that AVG failed to prove Genesis 

received default notices. The leases provide that Genesis shall 

pay to AVG a late charge if any payment of rent due “is not 

received by Landlord within ten (10) days of [tenant’s] receipt 

of a written notice of nonpayment.” As we explained above 

regarding prejudgment interest, the evidence sufficiently established Genesis’ receipt of the notices of default.

(iii) Whether New Trial on 

Late Charges Is Required

Alternatively, Genesis argues that a new trial on late fees 

is required. During the jury instruction conference, Genesis 

objected to the verdict form, claiming that “the late fees based 

on the testimony of . . . Throenle were for the purpose of penalty and are unenforceable under Nebraska law, and it would 

be error to instruct on late fees.” The court responded, “I’m 

going to go with the verdict form that we’ve talked about 

and the one I’ve provided to you.” Later, Genesis timely 

filed a motion for new trial asserting, among other things, 

that the court committed plain error by adding “late fees” after 

“[u]npaid rent” on the verdict form, by failing to instruct the 

jury not to award late fees if the jury determined they were a 

penalty, and by including late fees with damages on the verdict 

form when such fees were not recoverable. The court overruled 

the motion.

[32] Genesis argues that the court committed plain error by 

failing to instruct the jury on Genesis’ penalty and condition 

precedent defenses to late charges. It further asserts that there 

was plain error in the jury’s award of late charges for August, 

September, and November 2018. Plain error is error plainly 

77 See GFH Financial Serv. Corp. v. Kirk, 231 Neb. 557, 437 N.W.2d 453 

(1989).
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evident from the record and of such a nature that to leave it 

uncorrected would result in damage to the integrity, reputation, 

or fairness of the judicial process. 78 We see no plain error.

5. Award of Sanctions

(a) Additional Background

Six days before trial was originally set to begin, Genesis 

moved for a continuance. Genesis stated in the motion that it 

had terminated the attorney-client relationship with its counsel 

and requested 3 weeks to retain new counsel. Genesis’ attorney 

submitted an affidavit which stated that his representation of 

Genesis was terminated “as a result of a good faith disagreement . . . regarding trial strategy.”

Two days later, the court held a hearing on the motion for 

continuance. Genesis’ attorney recognized that it was “two 

business days before trial is to begin,” but stated that there 

was “no time for new counsel to get up to speed and to try the 

case on Monday.” Counsel explained that he and Genesis had a 

difference of opinion about trial strategy and that the disagreement “came to a head” as they prepared to file documents with 

the court indicating how they planned to proceed at trial. The 

court allowed the attorney, having been fired by Genesis, to 

withdraw. But the court declined to continue the trial.

Genesis obtained counsel to make a limited appearance on 

its behalf in order to file a renewed motion for continuance of 

trial and to appear at a hearing on the motion. The court heard 

the motion on February 4, 2019, the day trial was to commence. The court explained that it earlier declined to continue 

the trial because the matter had been on file for nearly 2 years, 

the request for continuance was a late one, and only a vague 

reason of dispute in trial strategy was given.

AVG opposed a continuance. It asserted that it has “$60,000 

a month of continuing damages” and did not see why Genesis’ 

decision to terminate its representation by counsel should force 

AVG to continue incurring over $2,000 a day in damages. 

78 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
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Because trial was set to begin, the court observed that 35 

jurors had been called “at great expense to the county.” And 

AVG had in attendance its chief financial officer, its chief operating officer, and an expert witness. The court asked AVG’s 

attorneys: “[I]n the last, say, five days, what have you incurred 

in travel expenses, witness — expert witnesses, your time? 

Just a ballpark estimate. Twenty thousand, 25,000?” One attorney responded that $25,000 “was what was in my head,” and 

the other stated, “I think that sounds fair from what they’ve 

told me.”

The court inquired whether Genesis was prepared to “pay a 

substantial sanction, which would include, at a minimum, all of 

[AVG’s] costs, travel costs, preparation costs, our juror costs, 

[and] their expert witness costs” if the court continued the trial. 

Counsel responded that if the court so ordered, he believed 

Genesis would pay.

The court sustained the motion to continue. The court cautioned that Genesis would have to pay for substantial costs 

incurred as a result:

The sanction’s going to consist of our cost of jurors, 

[c]ounsel’s time — all three of them — their travel 

expenses, their prep time over the last four or five days, 

their client’s travel time and their time that they’re here, 

and I’d like an affidavit, if you would, to that effect. If 

necessary, I’ll — we can conduct a telephonic hearing on 

it. But, please, include all your related costs, prep costs, 

expert witness costs for being here. You know, not that 

unusual to have prep time for any trial, but specifically 

the prep time in the last four or five days, the time we 

spent at this hearing, the time we spent on Thursday, and 

— because I anticipate it’s going to be very significant.

Attorney Gregory M. Bordo submitted an affidavit setting 

forth AVG’s expenses. He averred that his hourly rate was 

$550 and that cocounsel’s rate was $475 per hour. Their attorney fees for January 29 through February 4, 2019, amounted 

to $42,780, and their travel and lodging expenses were 
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$2,878.66. AVG’s local counsel charged $450 per hour, and 

he billed $5,556.78 for those 5 business days. AVG incurred 

fees of $4,500 for its expert’s services during that time. Bordo 

asserted that the value of AVG’s chief operating officer’s time 

to prepare and appear at trial was $6,375 and that his travel 

and lodging expenses were $1,212.40. Bordo averred that 

the value of AVG’s chief financial officer’s time to prepare 

and appear at trial was $4,750 and that her travel and lodging expenses were $1,126.35. Thus, Bordo requested fees and 

costs of $69,179.19.

The court’s February 13, 2019, order recounted that it heard 

the renewed motion to continue on an expedited basis on 

February 4—the first day of the scheduled jury trial—while 

summoned jurors were in the courthouse awaiting trial to begin. 

The order stated that on February 7, AVG submitted Bordo’s 

affidavit with exhibits demonstrating a total of $69,179.19 in 

costs and fees incurred by AVG from January 29 to February 4 

in preparation for the scheduled trial. The order recited that as 

of February 12, it had received no opposition from Genesis. It 

ordered Genesis to pay for AVG’s fees and costs in the amount 

of $69,179.19.

A week later, Genesis filed a motion to alter or amend the 

order. Among other things, Genesis requested that Bordo’s 

affidavit be stricken because it did not contain a proper jurat 

showing that Bordo was sworn and because it was not marked 

and offered at a hearing on the record at which Genesis could 

object and be heard. Alternatively, Genesis asked that the court 

reduce the award to take into account the reasonable local 

hourly rate of lawyers practicing in Douglas County, to include 

the expense of only one out-of-state lawyer, and to eliminate 

compensation of AVG’s personnel.

The court held a hearing on the motion to reconsider the 

sanctions. AVG offered Bordo’s affidavit into evidence, Genesis 

objected, and the court reserved ruling.

Nine days after the hearing, Genesis filed objections to 

Bordo’s affidavit. It objected that the jurat did not recite that 
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the affidavit was duly sworn to by the party making the same. 

The document further set forth numerous specific objections to 

parts of the affidavit.

On March 13, 2019, the court overruled the motion to alter 

or amend and the objections to Bordo’s affidavit. After quoting 

its dialogue with Genesis’ counsel during the February 4, 2019, 

hearing, the court stated:

The Court made it clear at the hearing on February 4 . . . 

that [AVG] had no doubt incurred considerable expenses 

in preparing for the trial in the previous four days, had 

incurred considerable expenses to travel to Omaha from 

Los Angeles, CA, with client representatives who were 

necessary witnesses at trial, had incurred considerable 

lodging expenses, and had retained an expert witness who 

was present for trial. It would be inequitable for [AVG] to 

have incurred these expenses to appear at trial as ordered 

by the Court, only to have the trial continued because 

[Genesis], on the eve of trial (which had been specially 

set for more than six (6) months) fired its attorney for 

reasons still largely unknown. The Court does not believe, 

under the circumstances presented, that failure to continue 

the trial would have been an abuse of discretion.

The court explained that it did not use local rates in its award 

of attorney fees because, consistent with its stated intention 

during the February 4 colloquy, it awarded AVG its actual fees, 

costs, and expenses. The court also clarified that although it 

had referred to the award as a “‘sanction,’” it was not one: 

“The Court was not sanctioning [Genesis]—this was an equitable award to [AVG] for doing what the Court ordered—be 

prepared for trial, and appear at the trial, on February 4, 2019. 

[AVG] should not be penalized for [Genesis’] last minute firing 

of its attorney.”

On June 18, 2019, the court entered an order addressing, 

among other things, pretrial motions. With respect to Bordo’s 

affidavit, the court recognized Genesis’ lengthy objection filed 

on March 7 but stated that “[h]aving submitted the matter to 
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the Court on February 26, 2019, the Court sustained the objection to [Genesis’] objections . . .” and received the exhibit.

(b) Discussion

(i) Jurisdiction

[33-35] We quickly dispose of Genesis’ first argument. 

It claims that the court lacked subject matter jurisdiction to 

award sanctions. A district court, as a court of general jurisdiction, has inherent power to do all things necessary for the 

proper administration of justice and equity within the scope 

of its jurisdiction. 79 Trial judges are encouraged to implement 

firm, consistent procedures for minimizing continuances to 

meet case progression standards. 80 And a trial judge has broad 

discretion over the conduct of a trial. 81 As the court clarified, 

its so-called “sanction” was an equitable award. Through its 

inherent authority, the court possessed the power to make such 

an award.

(ii) Lack of Hearing 

on Amount

Genesis next faults the court for not holding a de novo hearing on the amount of the award. It cites no authority to support 

entitlement to such a hearing. As recounted above, the court 

asked AVG to submit an affidavit setting forth the expenses 

it incurred in connection with its trial preparation over the 

days before the original trial date and stated that “[i]f necessary, . . . we can conduct a telephonic hearing on it.” Genesis 

did not request a hearing at the time; nor did it ask for time to 

respond. Bordo submitted his affidavit on February 7, 2019, 

and when the court entered its order on February 13, it had 

heard no opposition from Genesis.

79 See Holt County Co-op Assn. v. Corkle’s, Inc., 214 Neb. 762, 336 N.W.2d 

312 (1983).

80 Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017), citing Neb. 

Ct. R. § 6-101(B)(5) (rev. 2013).

81 Connelly v. City of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009).
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Despite Genesis’ inaction prior to the February 13, 2019, 

order, the court provided Genesis an opportunity to respond 

to the reasonableness of the expenses claimed by AVG. The 

court stated that there would not be a “trial” on the matter and 

that it could be done by affidavit. Genesis’ counsel agreed that 

“typically these are done on affidavit,” adding that “there’s no 

use making this more painful.” The court then allowed Genesis 

7 days to submit any affidavits and any objections to Bordo’s 

affidavit. Here, the court afforded Genesis with a means to be 

heard regarding the reasonableness of AVG’s claimed expenses 

and considered Genesis’ response. No more was required.

(iii) Objections to Bordo Affidavit

a. Specific Objections

Genesis argues that the court failed to consider the myriad 

specific objections it directed to the affidavit. The court’s order 

stated that it overruled Genesis’ objection to Bordo’s affidavit 

and received it as an exhibit. As Genesis correctly observes, 

the order did not specifically reference Genesis’ numerous specific objections and instead added only that Bordo’s affidavit 

met the criteria set out in Johnson v. Neth.

 82

At a later hearing, the court stated that it “overruled [Genesis’] 

objections” in the earlier order. It inquired of Genesis’ counsel, 

“[W]hat you’re asking me to do is make a specific ruling on 

each objection you made . . . ?” Counsel responded: “Right. Or 

it could be a general denial.” The court stated it would “take a 

look,” but added, “[M]y intent was, based on what I had at the 

time of the February 27th hearing in preparation to issue the 

March 13th order, I generally overruled any objection . . . .” In 

a posttrial motion, Genesis asserted that the court erred in failing to rule on each specific objection to Bordo’s affidavit. The 

court overruled the motion.

Genesis has not cited any authority requiring the court to 

specifically address the merits of each objection to an exhibit. 

82 Johnson v. Neth, 276 Neb. 886, 758 N.W.2d 395 (2008).
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By receiving the affidavit and holding firm to that ruling, 

the court essentially overruled every objection to the exhibit. 

We see no abuse of discretion. The court’s ruling preserved 

Genesis’ opportunity to appeal from the evidentiary rulings; 

but Genesis has not assigned and argued error in those rulings 

except regarding the sufficiency of the certification of an oath 

or affirmation.

b. Jurat

[36] Genesis’ other argument is directed to the jurat of the 

affidavit. Under Nebraska law, an affidavit is one mode by 

which testimony of a witness may be taken. 83 As defined by 

statute, “[a]n affidavit is a written declaration under oath, made 

without notice to the adverse party.” 84 Oaths and affirmations 

may be administered by notaries public. 85 In connection with 

an affidavit, a notary public completes a certificate, known 

as a jurat, which confirms that the affiant appeared before the 

notary, attested to the truth of his or her statements, and signed 

the affidavit. 86 The certificate of a notary public to an affidavit 

is presumptive evidence of the facts stated in such certificate, 

including the statement that affiant signed the affidavit. 87 The 

customary form of a jurat has long been understood. 88 It differs 

from an acknowledgment.

Bordo executed his affidavit in California. Under Neb. 

Rev. Stat. § 25-1245 (Reissue 2016) and Neb. Ct. R. Disc. 

§ 6-328(b), an affidavit may be used in support of a motion 

in a court of this state if the affidavit is made and authenticated, out of state, before a person authorized to administer 

83 See Neb. Rev. Stat. § 25-1240 (Reissue 2016).

84 Neb. Rev. Stat. § 25-1241 (Reissue 2016).

85 Neb. Rev. Stat. § 64-107.01 (Reissue 2018).

86 See In re Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006).

87 Smith v. Johnson, 43 Neb. 754, 62 N.W. 217 (1895).

88 See 1 Winsor C. Moore, Nebraska Practice § 539 (1964) (including both 

short form and long form).
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oaths in the place where the affidavit is made. 89 Attached to 

the affidavit was an “[a]cknowledgment,” in the form authorized by California law, 90 which stated that Bordo “personally 

appeared” before the notary public. In a certificate of acknowledgment under California law, the notary public certifies that 

the signer acknowledged executing the document. 91 Like in 

Nebraska, a notary public in California is authorized by law to 

administer oaths. 92 In a jurat under California law, the notary 

public certifies that the signer signed the document in the presence of the notary public and that the notary public administered an oath or affirmation. 93 A California court has said that 

an “acknowledgment appearing at the end of the document 

reciting only that [an individual] appeared before a notary public ‘and acknowledged that she executed the same’ is not in any 

sense the equivalent of a jurat or of a verification.” 94

Genesis points out that the jurat did not recite that the 

affidavit was duly sworn to by the party making it. The affidavit began by stating that “Bordo, being first duly sworn, 

deposes and states as follows . . . .” And the acknowledgment 

was signed by a notary public. The notary public signed the 

acknowledgment under penalty of perjury and affixed her 

notarial seal.

[37,38] But we have stated that the fact that an affiant 

signed an affidavit in the presence of a notary and that the 

affiant’s signature was in fact notarized is sufficient as an oath 

or affirmation. 95 Unless required by statute, an omission in a 

89 See In re Interest of Fedalina G., supra note 86.

90 See Cal. Civ. Code § 1189 (West 2019).

91 Id.

92 See Cal. Civ. Proc. Code § 2093(a) (West 2019).

93 See Cal. Gov’t Code § 8202 (West 2015).

94 Palm Springs Alpine Estates, Inc. v. Superior Court for Los Angeles Cty., 

255 Cal. App. 2d 883, 888, 63 Cal. Rptr. 618, 621 (1967).

95 See Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 

N.W.2d 924 (2008).
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jurat that an affidavit was sworn to will not be fatal if the 

fact otherwise appears. 96 Here, the affidavit states on its face 

that it was sworn, and it was signed before an official authorized to administer oaths. Although the affidavit was irregular 

in the sense that an acknowledgment rather than a jurat was 

attached, Genesis suffered no prejudice. As set forth earlier, 

the admission of evidence in a civil case is not reversible error 

unless it unfairly prejudiced a substantial right of the complaining party. 97 There is no reversible error here.

While the confusion associated with the distinctions 

between forms of notarial acts is not prejudicial, it is easily 

avoidable. A notary public or other authorized officer should 

use a traditional jurat (long or short) to certify the administration of an oath or affirmation and employ an acknowledgment 

for documents requiring that type of proof. Both are types 

of notarial acts, “which the laws and regulations of this state 

authorize notaries public of this state to perform, including 

the administering of oaths and affirmations, taking proof of 

execution and acknowledgments of instruments, and attesting 

documents.” 98 An acknowledgment is the act by which a party 

who has executed an instrument goes before a competent officer and declares or acknowledges the same as his or her genuine and voluntary act and deed. 99 A statute defines the words 

typically used in the customary short form of an acknowledgment. 100 Acknowledgments are employed mainly in connection with transactions involving real estate, 101 wills, 102

96 2A C.J.S. Affidavits § 31 (2013).

97 See Weyh v. Gottsch, supra note 11.

98 Neb. Rev. Stat. § 64-201 (Reissue 2018).

99 McCauley v. Stewart, 177 Neb. 759, 131 N.W.2d 174 (1964). See, also, 1 

Moore, supra note 88, § 121.

100 See Neb. Rev. Stat. § 64-205 (Reissue 2018).

101 See, e.g., Neb. Rev. Stat. §§ 40-104 (Reissue 2016) and 76-203 through 

76-205, 76-211, 76-216, 76-235, and 76-241 (Reissue 2018).

102 See, e.g., Neb. Rev. Stat. § 30-2329 (Reissue 2016).
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powers of attorney, 103 and establishment of a filial relationship. 104 Adding to this confusion is the largely historical form 

of an affidavit described as a verification. Prior to 1969, 105

every pleading of fact in a civil action had to be verified by 

the affidavit of the party, his or her agent, or attorney. 106 In 

most instances, it was sufficient if the affidavit stated that the 

affiant believed the facts stated in the pleading to be true. 107

In some situations, however, the pleading was required to be 

“positively verified, and a verification based upon mere belief 

[was] inadequate.” 108 The form for a positive verification 109

ended with the word “true,” 110 thereby omitting the words “as 

he believes” used at the end of the usual verification form. 111

Either version, being a type of affidavit, was followed by 

the jurat of the officer administering the oath (and not by 

an acknowledgment). 112 Here, the question could have been 

avoided by adherence to well-settled and understood language. As Winston Churchill is reputed to have said: Broadly 

speaking, the short words are the best, and the old words best 

of all.

(iv) Amount of Award

[39] Finally, Genesis argues that the court abused its discretion in awarding AVG $69,179.19. A court abuses its discretion 

103 See, e.g., Neb. Rev. Stat. § 30-4005 (Reissue 2016).

104 See, e.g., Neb. Rev. Stat. §§ 43-1408.01 and 43-1409 (Reissue 2016).

105 See 1969 Neb. Laws, L.B. 375.

106 See Neb. Rev. Stat. § 25-824 (1943).

107 See, Neb. Rev. Stat. § 25-827 (1943); Harden v. A. & N. R. R., 4 Neb. 521 

(1876).

108 State ex rel. Van Cleave v. City of No. Platte, 213 Neb. 426, 429, 329 

N.W.2d 358, 360 (1983).

109 See 7 Winsor C. Moore, Nebraska Practice § 5813 (1967).

110 Id.

111 Id., § 5805.

112 Id., §§ 5805 and 5813.
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when its decision is based upon reasons that are untenable

or unreasonable or if its action is clearly against justice or 

conscience, reason, and evidence. 113 As we have previously 

observed, “[t]his is a fairly deferential standard.” 114

Genesis challenges the amount of the awards for AVG’s 

chief financial officer and chief operating officer, asserting that 

any reimbursement should be based on statutory witness fees. 

It further contends that the court abused its discretion in awarding the attorneys their hourly rate and that a reasonable hourly 

rate would be the local hourly rate.

Before agreeing to grant a continuance, the court made clear 

that it would award AVG its actual expenses. In other words, 

payment of those expenses was a condition required to obtain 

the continuance. The court cogently explained that “[i]t would 

be inequitable for [AVG] to have incurred these expenses to 

appear at trial as ordered by the Court, only to have the trial 

continued because [Genesis], on the eve of trial . . . fired its 

attorney for reasons still largely unknown.” To award AVG 

only a statutory witness fee or an Omaha attorney’s prevailing 

hourly rate would frustrate the purpose of the award.

The record does not show that the court rendered its award 

for any reasons that were untenable or unreasonable. Rather, 

“the record reflects that the court carefully considered its 

decision and sought to achieve a balanced outcome for both 

parties.” 115 The court’s decision allowed Genesis the continuance it desired for new counsel to prepare for trial, and it reimbursed AVG for its expenses incurred to be present and ready 

for the scheduled trial. Although the court’s award was substantial, it represented the significant costs that AVG suffered. 

Under the circumstances, the court’s award was not untenable 

or unreasonable.

113 See Putnam v. Scherbring, supra note 80.

114 Id. at 878, 902 N.W.2d at 146.

115 Id. at 878, 902 N.W.2d at 147.
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6. AVG’s Cross-Appeal

[40] On cross-appeal, AVG assigns that the court erred in 

sustaining Genesis’ hearsay objection to exhibit 132, a 2017 

Delaware lawsuit that 24 Hour Fitness USA filed against 

Genesis Health Clubs of Midwest. Because we are affirming 

the judgment in AVG’s favor, we need not resolve this issue. 

An appellate court is not obligated to engage in an analysis 

that is not necessary to adjudicate the case and controversy 

before it. 116

VI. CONCLUSION

As landlord, AVG had standing in this action for breach 

of written leases and was not required to produce the actual 

assignment of the leases in order to prevail. We find no error 

in the award of prejudgment interest under § 45-104 or in the 

special verdicts awarding late fees associated with tardy rent 

payments and penalties in the form of interest and advertising in connection with delinquent property taxes. Further, the 

court had inherent authority to award AVG its actual expenses 

as a condition of sustaining Genesis’ motion for continuance 

of trial. Finding no abuse of discretion or reversible error in 

any of the respects alleged, we affirm the judgment of the district court.

Affirmed.

Miller-Lerman, J., not participating.

116 Saylor v. State, 304 Neb. 779, 936 N.W.2d 924 (2020).