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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

Karen Bohac, Personal Representative of 

the Estate of Marlene A. Benes, deceased, 

appellant and cross-appellee, v. Benes 

Service Co., a Nebraska corporation, 

appellee and cross-appellant.

___ N.W.2d ___

Filed January 14, 2022. No. S-21-133.

1. Equity: Stock: Valuation. A proceeding under the provisions of Neb. 

Rev. Stat. § 21-2,201 (Cum. Supp. 2020) to determine the fair value of 

a petitioning shareholder’s shares of stock is equitable in nature.

2. Equity: Appeal and Error. An appellate court reviews an equitable 

action de novo on the record and reaches a conclusion independent of 

the factual findings of the trial court; however, where credible evidence 

is in conflict on a material issue of fact, the appellate court considers 

and may give weight to the circumstance that the trial court heard and 

observed the witnesses and accepted one version of the facts rather 

than another.

3. Statutes: Appeal and Error. Statutory interpretation is a matter of law, 

in connection with which an appellate court has an obligation to reach 

an independent, correct conclusion irrespective of the determination 

made by the court below.

4. Corporations: Appeal and Error. In ordering the terms of payment 

under Neb. Rev. Stat. § 21-2,201(e) (Cum. Supp. 2020), an appellate 

court will review for abuse of discretion.

5. Corporations: Valuation: Words and Phrases. While the Nebraska 

Model Business Corporation Act’s election-to-purchase provisions 

do not explicitly define “fair value,” the act’s provisions governing 

appraisal rights state that “fair value” means the value of the corporation’s shares determined using customary and current valuation concepts 

and techniques generally employed for similar businesses in the context 

of the transaction requiring appraisal.

Nebraska Supreme Court Online Library

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

03/25/2022 09:08 AM CDT
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310 Nebraska Reports

BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

6. Statutes: Legislature: Presumptions. In enacting a statute, the 

Legislature is presumed to know the general condition surrounding 

the subject matter of the legislative enactment, and it is presumed to 

know and contemplate the legal effect that accompanies the language it 

employs to make effective the legislation.

7. Statutes: Judicial Construction: Legislature: Presumptions: Intent.

Where a statute has been judicially construed and that construction has 

not evoked an amendment, it is presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent.

8. Corporations: Merger. A dissenting minority shareholder’s right to a 

fair value appraisal can be triggered merely by the majority’s benign 

decision to engage in a merger or some other corporate transaction. 

Minority shareholders in these cases are protected from discounts for 

lack of marketability or minority status, not because there has been fault 

but simply to protect the vulnerability of the dissenter.

9. Corporations: Valuation. A “going concern” premise of value is used 

in a fair value determination when the subject company is expected to 

continue to operate into the future.

10. ____: ____. A “liquidation” premise of value is used in a fair value 

determination when the business is not expected to continue, and it 

requires a determination of the net amount that would be realized if the 

business is terminated and the assets are sold piecemeal.

11. Corporations: Valuation: Words and Phrases. The asset-based 

approach is a type of methodology that can be used in fair value determinations. It is a general way of determining a value indication of a 

business’ assets and/or equity based directly on the value of the assets of 

the business less liabilities.

12. ____: ____: ____. The asset-based approach is generally applied when 

valuing a business whose operations require significant investment in 

fixed assets.

13. ____: ____: ____. The income approach is a type of methodology that 

can be used in fair value determinations. It is a general way of determining a value indication of a business’ assets and/or equity based on the 

future, projected cashflow of a company.

14. ____: ____: ____. The market approach is a type of methodology that 

can be used in fair value determinations. It is a general way of determining a value indication of a business’ assets and/or equity by comparing 

the subject to similar investments that have been sold.

15. Legislature: Intent. The intent of the Legislature is expressed by omission as well as by inclusion.
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310 Nebraska Reports

BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

Appeal from the District Court for Saunders County: 

Christina M. Marroquin, Judge. Affirmed in part, vacated 

in part, and in part reversed and remanded with directions.

Jovan W. Lausterer, of Bromm, Lindahl, Freeman-Caddy & 

Lausterer, for appellant.

Sheila A. Bentzen and Adam J. Kost, of Rembolt Ludtke, 

L.L.P., for appellee.

Miller-Lerman, Cassel, Funke, Papik, and Freudenberg, 

JJ.

Freudenberg, J.

I. INTRODUCTION

Leonard and Marlene A. Benes formed the Benes Service 

Co. (BSC) in 1966. Their children assisted in the day-to-day 

operations and eventually joined as stockholders of varying 

degrees. After Leonard passed away, four of the couple’s 

sons took over active management. After Marlene’s death, her 

ownership interest transferred to the couple’s daughters through 

her estate (the Estate). Karen Bohac, the personal representative of the Estate and one of the couple’s daughters, began 

investigating BSC and its corporate practices, later filing a 

petition for dissolution. BSC responded with an election to 

purchase in lieu of dissolution.

Trial was held on the matter to determine fair value of the 

Estate’s 14.84 percent interest in BSC. The trial court found that 

the fair value of 14.84 percent of BSC was worth $2,886,790. 

The district court declined to award Bohac expenses, attorney 

fees, and prejudgment interest, and it provided for payment 

of the judgment in annual installments over 5 years. Bohac 

appealed, and BSC cross-appealed, at which time we moved 

this appeal to our docket.

We affirm in part, vacate in part, and in part reverse and 

remand with directions to the district court to recalculate the 

fair value of BSC and the Estate’s 14.84 percent interest in 
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

accordance with this opinion and to set new payment terms 

according to such recalculated value.

II. BACKGROUND

BSC is a family-owned business consisting of both a farm 

implement division and a farming operation, organized as a 

C corporation in the State of Nebraska and formed in 1966 by 

Leonard and Marlene. Leonard passed away in 2011, at which 

time four of Leonard and Marlene’s five sons took over the 

active management of the company. Marlene passed away in 

August 2017. At the time of her death, four of the sons each 

owned approximately 20 to 21 percent of BSC, while Marlene 

owned a 14.84 percent interest in BSC. Each of the couple’s 

six daughters are devisees under Marlene’s will and would 

receive equal benefit from the Estate’s 14.84 percent interest. 

One of the daughters was employed by BSC for many years; 

she and her husband each hold a separate .61 percent interest 

in BSC.

Bohac was Marlene’s power of attorney and became personal representative of the Estate upon Marlene’s death. Bohac 

first began investigating BSC in order to file a tax return for 

the Estate. Upon investigation of BSC’s business practices, 

Bohac filed a petition for judicial dissolution on September 

20, 2018. Bohac alleged that four of the sons “acted in an 

illegal, oppressive and/or fraudulent manner” in multiple circumstances: They were not holding required meetings, they 

were not obtaining director and stockholder approval for major 

transactions, they were not properly reporting income, and 

they were engaging in self-dealing activities, among other 

allegations.

BSC filed an answer denying these allegations and then 

timely filed an election to purchase the Estate’s 14.84 percent 

of common stock in lieu of judicial dissolution of the company. Based on this filing, Bohac was obligated to sell the 

Estate’s interest in lieu of dissolution pending a determination 

of fair value of such interest. The parties could not come to an 
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

agreement as to the fair value of the 14.84 percent interest, and 

so a trial was held wherein the district court was tasked with 

making such determination.

After an evidentiary hearing, the district court found that 

the fair value of the Estate’s 14.84 percent share of BSC was 

$2,886,790 as of September 19, 2018, the day before the petition for dissolution was filed. The district court declined to 

award Bohac expenses, attorney fees, and prejudgment interest, 

and it provided for payment of the judgment in annual installments over 5 years.

Bohac appealed, and BSC cross-appealed. We thereafter 

moved this appeal to our docket.

III. ASSIGNMENTS OF ERROR

Bohac assigns that the district court erred in (1) failing to 

apply the definition of “fair value” as set forth in Neb. Rev. 

Stat. § 21-2,171(3) (Cum. Supp. 2020); (2) applying lack of 

marketability and minority discounts to an asset approach as 

a going concern; (3) failing to find that Bohac had probable 

grounds for relief entitling the Estate to an award of expenses 

pursuant to Neb. Rev. Stat. § 21-2,201(e) (Cum. Supp. 2020); 

(4) failing to award Bohac interest starting on September 19, 

2018, pursuant to § 21-2,201(e); and (5) granting BSC 5 years 

to make annual, interest-free payments.

On cross-appeal, BSC assigns that the district court erred 

in applying the asset-based approach over the income-based 

approach in its determination of the fair value of BSC.

IV. STANDARD OF REVIEW

[1,2] A proceeding under the provisions of § 21-2,201 to 

determine the fair value of a petitioning shareholder’s shares 

of stock is equitable in nature. 1 An appellate court reviews 

an equitable action de novo on the record and reaches a conclusion independent of the factual findings of the trial court; 

1 Anderson v. A & R Ag Spraying & Trucking, 306 Neb. 484, 946 N.W.2d 

435 (2020).
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

however, where credible evidence is in conflict on a material 

issue of fact, the appellate court considers and may give weight 

to the circumstance that the trial court heard and observed 

the witnesses and accepted one version of the facts rather 

than another. 2

[3] Statutory interpretation is a matter of law, in connection 

with which an appellate court has an obligation to reach an 

independent, correct conclusion irrespective of the determination made by the court below. 3

[4] In ordering the terms of payment under § 21-2,201(e), an 

appellate court will review for abuse of discretion. 4

V. ANALYSIS

1. What Is “Fair Value” of The Estate’s 

14.84 Percent Interest in BSC?

The issue of determining fair value of the Estate’s 14.84 

percent interest in BSC is a multistep analysis. This court 

must first consider the definition of “fair value” as applied to 

an election to purchase shares in lieu of judicial dissolution. 

Second, we must consider whether this definition of fair value 

includes, excludes, or has no effect on the applicability of discounts for lack of marketability and control.

Third, we must determine the premise of value that will 

apply; here, the options include either “as a going concern” 

or “as if in liquidation.” Fourth, we must decide whether the 

principle of highest and best use mandates the application of a 

certain methodology to value BSC and then apply the selected 

methodology to the determined value of the company’s assets, 

income, or market value to come to a final conclusion as to 

the fair value of both BSC and the Estate’s 14.84 percent 

interest in BSC. Each component of this analysis is included 

2 Id.

3 Id.

4 See Wayne L. Ryan Revocable Trust v. Ryan, 308 Neb. 851, 957 N.W.2d 

481 (2021) (citing Link v. L.S.I., Inc., 793 N.W.2d 44 (S.D. 2010)).
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

within our fair value determination and is therefore reviewed 

de novo with weight given to the trial court for determinations 

of credibility. 5

(a) “Fair Value” Definition

In her first assignment of error, Bohac assigns that the district court erred in failing to apply the definition of “fair value” 

as set forth in § 21-2,171(3) to its calculation of the Estate’s 

14.84 percent interest in BSC. In its order, the trial court 

referred to definitions previously applied under Neb. Rev. Stat. 

§ 21-20,166 (Reissue 2012); however, this statutory section 

was repealed prior to commencement of this suit and does not 

control this issue. 6 Because this definition will impact many 

other steps in the valuation analysis, it is essential that we 

define “fair value” before analyzing the value of the Estate’s 

14.84 percent interest in BSC.

Bohac, on behalf of the Estate, initially brought this action as 

a petition for dissolution pursuant to Neb. Rev. Stat. § 21-2,197 

(Cum. Supp. 2020). In response, BSC filed an election to 

purchase in lieu of dissolution, as permitted by § 21-2,201. 

These two statutes are each within Neb. Rev. Stat. §§ 21-2,184 

through 21-2,202 (Cum. Supp. 2020) (Part 14) of the Nebraska 

Model Business Corporation Act (NMBCA).

As provided by the NMBCA, if the parties engaged in an 

election to purchase in lieu of dissolution cannot reach an 

agreement within 60 days, the court shall stay dissolution 

proceedings and “determine the fair value of the petitioner’s 

shares” as of the day before the petition for dissolution was 

filed or as of such other date as the court deems appropriate. 7

But the term “fair value,” as used within § 21-2,201, is not 

defined either in this section or elsewhere within Part 14 of 

the NMBCA.

5 See Anderson v. A & R Spraying & Trucking, supra note 1. See, also, 

Wayne L. Ryan Revocable Trust v. Ryan, supra note 4.

6 See § 21-20,166 (Cum. Supp. 2014).

7 § 21-2,201(d) (emphasis spplied).
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310 Nebraska Reports

BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

While not defined within Part 14, fair value is defined within 

Neb. Rev. Stat. §§ 21-2,171 through 21-2,183 (Cum. Supp. 

2020) (Part 13) regarding appraisal rights at § 21-2,171(3). For 

purposes of appraisal rights,

[f]air value means the value of the corporation’s shares 

determined:

(i) Immediately before the effectuation of the corporate 

action to which the shareholder objects;

(ii) Using customary and current valuation concepts 

and techniques generally employed for similar businesses 

in the context of the transaction requiring appraisal; and

(iii) Without discounting for lack of marketability or 

minority status except, if appropriate, for amendments 

to the articles pursuant to subdivision (a)(5) of section 

21-2,172. 8

Bohac urges us to adopt this definition in whole, to be used 

identically in Part 14. BSC urges us to instead abide by the 

limitation set forth by § 21-2,171, that definitions provided 

therein apply only to Part 13. BSC also points to official commentary, provided within a prior version of the standardized 

Model Business Corporation Act, from which the NMBCA is 

derived. That commentary stated, in part, “[a]s the introductory clause of section 13.01 notes, the definition of ‘fair value’ 

applies only to chapter 13.” 9

There are two issues with BSC’s argument regarding the 

official Model Business Corporation Act commentary. First, 

this official commentary to the model act was not adopted 

by the Legislature as part of the NMBCA. Second, as stated 

within another section of the same official commentary relied 

upon by BSC, “Section 14.34 does not specify the components 

of ‘fair value,’ and the court may find it useful to consider 

valuation methods that would be relevant to a judicial appraisal 

8 § 21-2,171(3).

9 3 Model Business Corporation Act Ann. § 13.01, official comment at 

13-12 (4th ed. 2013).
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

of shares under section 13.30.” 10 Thus, even the standardized 

Model Business Corporation Act recognizes that courts must 

sometimes look to Part 13 for guidance when defining these 

important terms. And that is exactly what this court has done 

previously when faced with the issue of defining fair value 

within the context of Part 14.

In Anderson v. A & R Ag Spraying & Trucking,

 11 two men 

formed a corporation. After one of the shareholders passed 

away, his interest in the corporation passed to his wife, who 

then petitioned the court for judicial dissolution pursuant to 

§ 21-2,197. The other shareholder thereafter filed an election to 

purchase the corporation in lieu of judicial dissolution pursuant 

to § 21-2,201.

[5] In Anderson, we stated:

While the [NMBCA’s] election-to-purchase provisions do 

not explicitly define “fair value,” the act’s provisions 

governing appraisal rights state that “fair value” means 

the value of the corporation’s shares determined “[u]sing 

customary and current valuation concepts and techniques 

generally employed for similar businesses in the context 

of the transaction requiring appraisal[.]” 12

We then applied this definition, originating in Part 13 of the 

NMBCA, to the election to purchase brought by the other 

shareholder under Part 14.

Anderson mirrors this case, where the procedural actions 

were similar both in form and statutory scheme. The cases 

involved similar facts and circumstances surrounding a closely 

held corporation. The analysis only differs in application of the 

income approach methodology rather than the asset approach. 

Thus, like Anderson, we will apply Part 13’s definition of fair 

value to this action, even though it originated under Part 14. 

As a result, fair value shall be determined using customary and 

10 Id., § 14.34, official comment at 14-170.

11 Anderson v. A & R Ag Spraying & Trucking, supra note 1.

12 Id. at 493, 946 N.W.2d at 442.
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

current valuation concepts and techniques generally employed 

for similar businesses in the context of the transaction requiring appraisal.

(b) Discounts for Lack of 

Marketability and Control

We next consider the implications that this definition of fair 

value will have on the applicability of discounts for lack of 

control and lack of marketability. Bohac, in her second assignment of error, assigns that the district court erred in applying 

lack of marketability and minority discounts. Bohac asserts that 

the definition of fair value from Part 13 should be adopted in 

full, including § 21-2,171(3)(iii), which states that fair value is 

calculated “[w]ithout discounting for lack of marketability or 

minority status except, if appropriate, for amendments to the 

articles pursuant to subdivision (a)(5) of section 21-2,172.”

The exception described by § 21-2,172(a)(5) allows for 

application of the marketability or minority discounts in an 

appraisal action where the shareholder has requested payment 

for fair value of their shares based on certain foreseeable corporate actions, such as an amendment to the articles of incorporation, merger, or a disposition of corporate assets pursuant 

to the bylaws. Section 21-2,172(a)(5) is not relevant in this 

matter, because the election to purchase in lieu of dissolution 

is not named by that subsection and is not similar to the type 

of foreseeable actions listed in that subsection. Adoption of the 

fair value definition provided by § 21-2,171(3) would thus preclude discounts in an elect-to-purchase action, as no exception 

would apply.

We agree with Bohac and hold that the determination of fair 

value for purposes of an elect-to-purchase action under Part 

14 shall be defined using the definition of fair value, in its 

entirety, as provided within Part 13 at § 21-2,171(3).

(i) “Fair Value”

Our conclusion that fair value for purposes of an electionto-purchase action under Part 14 should be calculated without 
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

discounting for lack of marketability or minority status is 

informed by the use of the word “fair value” in contrast to 

another term that appears frequently in Nebraska statute—“fair 

market value.” 13 Like other courts and commentators, we find 

that the use of the term “fair value” instead of “fair market 

value” in this context suggests “disapproval of a fair market 

value approach and the discounting that would accompany it.” 14

(ii) Official Commentary and NMBCA

BSC asserts that lack of marketability and minority discounts 

are both applicable and appropriate here, once again referring 

to the official commentary discussed above and provided within 

a prior version of the standardized Model Business Corporation 

Act. As this commentary states, “the definition of ‘fair value’ 

applies only to chapter 13. See the Official Comment to section 14.34 which recognizes that a minority discount may be 

appropriate under that section.” 15 There are three issues with 

BSC’s argument.

[6] First and most important, the referenced official 

commentary, as stated previously, was not adopted by the 

Legislature when it passed the NMBCA. In enacting a statute, 

the Legislature is presumed to know the general condition 

surrounding the subject matter of the legislative enactment, 

and it is presumed to know and contemplate the legal effect 

that accompanies the language it employs to make effective 

the legislation. 16 If the Legislature intended for discounts to 

be expressly applicable to elect-to-purchase actions, it could 

have chosen either to amend the model language accordingly 

13 See, e.g., Neb. Rev. Stat. § 21-2448(2) (Reissue 2012).

14 Douglas K. Moll, Shareholder Oppression and “Fair Value”: Of Discounts, 

Dates, and Dastardly Deeds in the Close Corporation, 54 Duke L.J. 293, 

336 (2004).

15 3 Model Business Corporation Act Ann., supra note 9.

16 J.S. v. Nebraska Dept. of Health & Human Servs., 306 Neb. 20, 944 

N.W.2d 266 (2020).
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

or to adopt the official commentary into our statutory scheme. 

It chose to do neither.

[7] Conversely, we have previously recognized that where a 

statute has been judicially construed and that construction has 

not evoked an amendment, it is presumed that the Legislature 

has acquiesced in the court’s determination of the Legislature’s 

intent. 17 In Anderson v. A & R Ag Spraying & Trucking, this 

court considered the Part 13 definition of fair value as guidance in valuing a corporation in an elect-to-purchase action 

brought under Part 14. 18 The Legislature has made no amendment since that time which would have precluded the application of the Part 13 definition to actions brought under Part 14, 

and so we will presume that the Legislature has acquiesced 

in our determination of the Legislature’s intent in this matter. 

Until the Legislature amends the NMBCA or indicates a contrary intent, we will continue to apply the fair value definition 

in Part 13 to actions brought under Part 14, in its entirety and 

as written.

Second, even if we, for the sake of argument, consider the 

commentary provided by the Model Business Corporation Act, 

in the 2013 version, as well as the 2016 and 2020 versions, it 

indicates that discounts for lack of marketability or minority 

status are inappropriate in most appraisal actions, because such 

discounts “give the majority the opportunity to take advantage 

of minority shareholders who have been forced against their 

will to accept the appraisal-triggering transaction.” 19

Applying that rationale to this case, the result would be 

similar: Bohac and the rest of the other devisees of the Estate 

have been forced to accept BSC’s election to purchase even 

though Bohac sought the dissolution of the entire corporation. Discounts such as those sought by BSC are inappropriate 

17 Estate of Schluntz v. Lower Republican NRD, 300 Neb. 582, 915 N.W.2d 

427 (2018).

18 Anderson v. A & R Ag Spraying & Trucking, supra note 1.

19 3 Model Business Corporation Act Ann., supra note 9.
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BOHAC v. BENES SERVICE CO.

Cite as 310 Neb. 722

where, as here, BSC was able to force Bohac and the other 

minority shareholders to accept this transaction and thus held a 

distinct advantage over them.

Finally, the commentary in § 13.01 of the Model Business 

Corporation Act mentions only that a minority discount may 

be appropriate under § 14.34 of the act, but does not mention 

discounts for lack of marketability or otherwise indicate that 

such a discount may be applicable to actions under § 14.34. 

And § 14.34 also expressly mentions only a minority discount. 

We decline to assume that lack of marketability discounts 

are applicable to actions brought under § 14.34, where not 

envisioned in the language of that section. Contrary to BSC’s 

contentions, the Model Business Corporation Act official commentary does not make clear that discounts are applicable and 

appropriate in this case. Rather, that commentary indicates that 

all discounts for lack of marketability should be excluded and 

that only minority discounts should be considered.

(iii) Oppression Need Not be Proved to 

Justify Exclusion of Discounts

The trial court, in determining the applicability of discounts, 

stated that this action was “not analogous to a dissenting 

sharehold[er] exercising appraisal rights because this is not a 

case involving wrongful conduct by majority shareholders or 

minority shareholder oppression” and that

given the totality of evidence before the Court, the Court 

cannot find that the majority shareholders engaged in 

wrongful conduct or oppression of the minority shareholders based on this limited testimony. Furthermore, 

the context of this action is one brought by the minority shareholder seeking to be bought out for distribution 

of the value of shares within the Estate. Therefore, the 

application of discounts must be determined based on 

equitable principles.

This is an inaccurate representation of this case. Bohac 

did allege wrongful and oppressive conduct by the majority 
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shareholders when she, on behalf of the Estate, filed a petition 

for dissolution of BSC. It was BSC that exercised its right to 

elect to purchase in lieu of dissolution, which compelled the 

Estate to sell its interest in the company.

That there was “limited testimony” on oppression, as indicated by the trial court, is expected. As agreed by both parties, the sole issue tried to the court was the determination of 

“‘fair value’ of [Bohac’s] 14.84% stock interest in [BSC] as 

of September 19, 2018,” under § 21-2,201(d). It is misleading 

to say the action was “brought by the minority shareholder 

seeking to be bought out,” when Bohac actually sought dissolution and alleged oppression from the beginning. It is 

unsurprising that such evidence was not presented in further 

detail at trial because the issue of oppression was not tried to 

the court at all.

[8] Further, dissenter’s rights statutes in many jurisdictions 

do not require the minority to prove that the majority has 

engaged in blameworthy conduct in order to receive protections. In appraisal cases, for example, a dissenting minority 

shareholder’s right to a fair value appraisal can be triggered 

merely by the majority’s benign decision to engage in a merger 

or some other corporate transaction. 20 Minority shareholders 

in these cases are protected from discounts for lack of marketability or minority status, not because there has been fault but 

simply to protect the vulnerability of the dissenter. 21

Even if we were to assume that the Legislature did not 

intend for us to apply Part 13’s definitions, including the 

20 Moll, supra note 14.

21 See, e.g., Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353, 364 (Colo. 

2003) (adopting enterprise value approach to fair value and noting that 

such interpretation is “clear majority view” in appraisal cases); Lawson 

Mardon Wheaton, Inc. v. Smith, 160 N.J. 383, 401, 734 A.2d 738, 

748 (1999) (“equitable considerations have led the majority of states 

and commentators to conclude that marketability and minority discounts 

should not be applied when determining the fair value of dissenting 

shareholders’ stock in an appraisal action”).
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specific exclusion of discounts, to evaluate actions brought 

under Part 14, principles of equity would still require us to 

prevent application of discounts where the dissenter holds a 

minority interest and did not itself engage in oppressive, illegal, or fraudulent conduct. To find otherwise would encourage majority oppression and would double-penalize minority 

interest holders who choose to exercise their rights to petition 

for dissolution when they feel the majority has engaged in 

oppressive conduct. We therefore conclude that neither discount shall apply.

(c) Premise of Value

We turn next to the determination of the premise of value to 

be applied in this case.

[9,10] There are two premises of value that might apply to 

this type of action: “as a going concern” or “as if in liquidation.” A going concern premise of value is used in a fair value 

determination when the subject company is expected to continue to operate into the future. A liquidation premise of value 

is used in a fair value determination when the business is not 

expected to continue, and it requires a determination of the net 

amount that would be realized if the business is terminated and 

the assets are sold piecemeal.

Within the valuations provided by both experts, Janet 

Labenz and Matt Stadler, as well as within the determination 

by the district court, the selection as to premise of value was 

intermingled with a discussion of the selection of valuation 

methodologies (explained in more detail below). The premise 

of value in this case was clearly as a going concern. Majority 

stockholders of BSC repeatedly indicated that they planned 

to continue the company into the future and had no plans to 

dissolve the company for any reason. BSC filed an election 

to purchase the Estate’s shares in lieu of dissolution so that 

it could continue business. The going concern premise must 

therefore be applied to this valuation.
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(d) Valuation Methodology

Having identified the standard and premise, this court also 

must select a methodology before a final valuation can be 

calculated. In its assignment of error on cross-appeal, BSC 

assigns that the district court erred in applying the asset-based 

approach over the income-based approach.

[11,12] There are three methods to value shares of a company: the asset-based approach, the income approach, and the 

market approach. According to Stadler, the expert for Bohac, 

the asset-based approach is “[a] general way of determining a 

value indication of a business’s assets and/or equity using one 

or more methods based directly on the value of the assets of 

the business less liabilities.” Under the asset-based approach, 

each asset is assigned a fair market value based on its worth if 

the entity were sold on an asset-by-asset basis. Liabilities are 

deducted from the total value of assets to arrive at the fair market value of the business. The asset-based approach is generally applied when valuing a business whose operations require 

significant investment in fixed assets.

[13] Stadler explained that the income approach is “[a] 

general way of determining a value indication of a business’s 

assets and/or equity using one or more methods wherein a 

value is determined by converting anticipated benefits.” This 

approach is based on the future, projected cashflow of a company, rather than the assets. It assumes an investor could choose 

to invest in the company or in a business with similar investment characteristics, and considers historical data to project 

future cashflow.

[14] Stadler further explained that the market approach is 

“[a] general way of determining a value indication of a business’s assets and/or equity using one or more methods that 

compares the subject to similar investments that have been 

sold.” At trial, the expert opinions provided by both parties 

agreed that the market approach was inapplicable, because 

there were insufficient comparable corporations or prior sales 

that could be used to draw a comparison. This leaves us with a 
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choice of either the asset- or income-based approaches or some 

combination of the two.

Bohac argues that the principal of “highest and best use” 

requires application of the asset approach, because the assetbased approach yielded a higher valuation amount from both 

experts at trial. BSC argues that this understanding of the 

principle of highest and best use is misplaced and artificially 

inflates the value of BSC. BSC cites New York case law that 

“rejected application of the higher valuation because it did not 

account for the reality of the underlying situation of the corporation and required presumptions not based on actual facts.” 22

Labenz, the expert for BSC, stated in her report that under 

the principle of highest and best use, “the value of a company 

is deemed to be the higher of the two values determined under 

a going concern or a liquidation premise.” This would mean 

that under the highest and best use principle, where the higher 

value came from liquidation, the company must be treated “as 

if in liquidation.” However, this is inconsistent with the testimony of the parties that BSC will continue to operate into the 

future. And Labenz chose to continue her valuation based on 

the lower of the two numbers presented, $13,021,000 versus 

$18,043,000. As noted by the district court, Labenz “does not 

explain why the court should not adopt her conclusion with the 

higher value under the asset approach.”

By contrast, Stadler, the expert for Bohac, conducted a valuation of BSC and the Estate’s interest using an asset approach 

and a going concern premise of value. This analysis takes into 

account the significant assets held by the company, as well 

as the company’s assertion that it will continue to operate 

into the future. Stadler explained the reason for discrepancies between his own report and that of Labenz, referring to a 

renowned valuation expert who posits that analysts will often 

“mistakenly confuse the use of asset based approach with a liquidated premise of value when it can, in fact, be used with all 

22 Reply brief for appellee at 2.
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premises of value including as a going concern.” Labenz had 

testified at trial that she agreed with the valuation expert, but 

“did not explain why she opted not to use the going concern as 

a premise of value herein under her asset approach analysis.”

BSC has significant assets. The principle of highest and 

best use does not require that we apply a liquidation premise 

of value when such would be contrary to facts suggesting that 

the company was a going concern. Due to these many factors, 

the correct methodology to adopt for valuation of BSC is an 

asset approach.

(e) Value Determinations

At trial, the parties presented multiple witnesses and experts 

to testify about the assets held by BSC, including parts inventory and equipment. They also testified to the chemical rebates 

BSC receives on chemicals that are sold and the potential tax 

liabilities that BSC would incur under the asset or income 

approaches. As with the issues discussed above, this subissue 

continues as part of the overall determination of fair value of 

the Estate’s interest in BSC, and the standard of review is de 

novo with weight given to the trial court’s determinations of 

credibility. Because the trial court presided over this matter 

and observed witness and expert testimony, the trial court is 

best situated to make determinations regarding the credibility 

of valuations provided.

(i) Equipment

As to the value of equipment, a licensed auctioneer and 

certified appraiser testified regarding an appraisal that he conducted for the Estate, whereas BSC offered a valuation of 

equipment prepared by the general manager for BSC. BSC’s 

general manager also testified that he regularly priced equipment owned by BSC by using information listed by an online 

company that lists auction results for farm equipment.

The trial court ultimately found the valuation of the auctioneer to be more credible than that of BSC’s general manager, 

noting that “[his] methodology involved multiple comparable 
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sales, he physically viewed the property to ascertain its condition, he is an independent consultant, he holds a certification 

in appraisals, and he has significant experience in the valuation 

of such property.” We defer to the trial court’s determination of 

credibility and find that the value of equipment is $11,663,325, 

as valued by the auctioneer.

(ii) Parts Inventory

As to the value of the parts inventory held by BSC, Randy 

Koski testified for the Estate. Koski is a certified public 

accountant with a bachelor’s degree in business administration with an accounting concentration, as well as a minor in 

economics. Koski testified to his experience in all accounting 

aspects for implement dealerships over the last 20 years.

BSC offered testimony from Chris Benes, the president of 

BSC, as well as a valuation report he prepared based on “what 

a third party would pay for the parts.” Chris’ report did not use 

a method of valuing parts that included buy-backs by the manufacturer, even though the court “heard a great deal of evidence 

about the buy-back laws under Neb. Rev. Stat. §87-706 and 

707.” One of Leonard and Marlene’s daughters, who worked 

as the parts manager for BSC for almost 40 years also testified 

that “there would be parts on the inventory list that were not 

returnable to the manufacturer but were still saleable” but that 

these items were “‘very minute’” and were about 1 percent of 

the inventory.

Ultimately, the trial court found that the valuation provided 

by Koski was more credible that that provided by Chris. The 

court noted:

Koski’s methodology included values that are realized 

under the buy-back laws, taking into account that this 

is not a liquidation, so the 15 % restocking charge will 

actually not be incurred. Further, the valuation accounted 

for all saleable parts, and it does not exclude items that 

haven’t sold in the last two years, as those still hold a 

value. Further, he is an independent consultant and has 

significant experience in the valuation of such property.
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We defer to the trial court’s determination of credibility and 

find that the value of parts inventory is $1,993,033, as valued 

by Koski.

(iii) Chemical Rebate

Next is a determination of value for the chemical rebate that 

BSC receives when chemicals are sold to BSC clients. Chris 

testified that the financial benefits of the rebate are never realized by BSC, because the rebates are passed on to customers 

through the pricing of the chemicals for sale. The trial court 

noted that “[t]here is not an accurate accounting before the 

Court to explain what percentage [BSC] discounts the chemicals in comparison to how much it receives from the rebate.” 

The court also noted that Chris had testified to an inventory 

kept by BSC regarding the rebate that uses a “fictitious number 

some percentage less than what was actually paid” and that, 

as aptly described by Chris, this was “‘lazy or poor accounting.’” We again defer to the trial court’s determination of credibility regarding testimony about the rebate and agree that the 

chemical rebate should be categorized as an account receivable 

by BSC.

(iv) Tax Liabilities

The last value determination to be addressed is the issue of 

tax liabilities.

In schedule 10 of her appraisal of BSC, Labenz assigned an 

income tax liability of almost $6.6 million and assumed selling 

expenses of about $3.5 million. Conversely, Stadler’s appraisal 

recorded a deferred income tax on the sale of fixed assets for 

10 years based on the assessment that it is unlikely the assets 

will be sold in the next 10 years, if ever, and instead will be 

“passed down generationally.”

The trial court found Stadler’s assessment of a potential 

tax liability to be more credible than that of Labenz, because 

Labenz’ report “assumes an immediate tax consequence during a liquidation” which will not be “realized by [BSC] since 

the Company will continue to operate rather than dissolve.” 
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We again defer to the trial court’s determination of credibility, where it accepted Stadler’s determination of potential 

tax liability.

(f) Final Fair Value Calculation

Based on the above material, we conclude that BSC should 

be valued according to the fair value standard laid out at 

§ 21-2,171(3). Moreover, we find that neither minority nor lack 

of marketability discounts is applicable. Further, BSC must be 

valued based on a going concern premise of value, using the 

asset-based approach for methodology. As a result, we reverse, 

and remand this issue to the district court, with directions to 

recalculate the fair value of BSC and the Estate’s 14.84 percent 

interest in accordance with this opinion.

2. Bohac’s Claim for Reimbursement 

of “Expenses”

In her third assignment of error, Bohac asserts that the district 

court erred in failing to find that Bohac had probable grounds 

for relief entitling the Estate to an award of expenses pursuant to § 21-2,201(e). Bohac claims that she is entitled to more 

than $30,000 for costs incurred, plus more than $87,849.33 in 

attorney fees and costs, under the authority of § 21-2,201(e) 

and our opinion in Detter v. Miracle Hills Animal Hosp. 23 Our 

disposition of this issue requires us to interpret § 21-2,201(e). 

That section provides:

Upon determining the fair value of the shares, the court 

shall enter an order directing the purchase upon such 

terms and conditions as the court deems appropriate . . 

. . If the court finds that the petitioning shareholder had 

probable grounds for relief under subdivision (a)(2)(i)(B) 

or (D) of section 21-2,197, it may award expenses to the 

petitioning shareholder. 24

23 See Detter v. Miracle Hills Animal Hosp., 269 Neb. 164, 691 N.W.2d 107 

(2005).

24 § 21-2,201(e) (emphasis supplied).
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In interpreting the language of the statute itself, we are required 

to reach an independent, correct conclusion irrespective of the 

determination made by the court below. However, in reviewing the contents of an award made pursuant to the statute, our 

review will be for an abuse of discretion.

Bohac argues that because § 21-2,201(e) uses the term 

“expenses,” the statute permits “not only costs and expert 

expenses but also attorneys’ fees.” 25 Bohac refers to Detter, 

where we held that reasonable attorney fees and expenses 

were recoverable in an election to purchase in lieu of dissolution action, provided that the petitioner could show that the 

respondent’s conduct was illegal, oppressive, or fraudulent in 

its form or that the corporate assets were being misapplied 

or wasted. 26

However, Bohac’s argument is flawed. Detter interprets 

§ 21-20,166, the predecessor statute to § 21-2,201. Under 

that language, a court was specifically permitted to “award 

to the petitioning shareholder reasonable attorney’s fees and 

expenses and fees and expenses of any experts employed by 

him or her,” 27 if the court found that a petitioning shareholder 

had probable grounds for relief from oppressive or wrongful conduct. But § 21-20,166 was repealed and replaced with 

§ 21-2,201 in 2014 and no longer includes the language from 

Detter which Bohac relies upon. This change was made pursuant to the adoption of the NMBCA, and this language is still 

in force today. 28

[15] The intent of the Legislature is expressed by omission 

as well as by inclusion. 29 We cannot ignore that the Legislature 

specifically removed reference to attorney fees when it adopted 

the NMBCA and repealed and replaced § 21-20,166 with 

25 Brief for appellant at 38.

26 Detter v. Miracle Hills Animal Hosp., supra note 23.

27 § 21-20,166(5)(b) (Reissue 2012).

28 § 21-2,201.

29 In re Estate of Hutton, 306 Neb. 579, 946 N.W.2d 669 (2020).
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§ 21-2,201. Upon our de novo review of this statutory language, we find that Bohac is not entitled to an award of attorney fees.

We note that, while Bohac is not entitled to attorney fees, 

under certain circumstances, a litigant in her position might 

be entitled to an award of other expenses. In order to recover 

expenses under § 21-2,201, the court must find that Bohac, as 

the petitioning shareholder, had probable grounds for relief. If 

such grounds for relief exist, the court “may” award expenses to 

the petitioning shareholder. But we find that the district court’s 

denial of such expenses was not an abuse of discretion.

The record shows that the trial court had opportunity to hear 

testimony and review evidence presented by Bohac regarding alleged misconduct by the majority shareholders. While 

Bohac detailed this alleged oppression at length, the record 

also indicates that there are potentially innocent intentions 

behind each event. After hearing testimony, observing the witnesses, and reviewing other evidence presented at trial, the 

trial court accepted one version of the facts over another. We 

find no evidence that the court abused its discretion on this 

determination.

3. Court-Ordered Payment of Judgment

In her fourth and fifth assignments of error, Bohac asserts 

that the district court erred in failing to award interest starting 

on September 19, 2018, pursuant to § 21-2,201(e), and granting 

BSC 5 years to make annual, interest-free payments.

Section 21-2,201(e) provides that the court, in setting terms 

of purchase, may include both installment payments and interest, but that neither is required. The court, having conducted 

the bench trial and presided over the case for an extended 

period of time, was in the best position to determine the appropriate terms and conditions of payment. 30 We find no abuse of 

discretion in the trial court’s determination of payment terms.

30 See Wayne L. Ryan Revocable Trust v. Ryan, supra note 4.
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While we find no abuse of discretion, we recognize that 

the current payment terms reflect the district court’s fair value 

determination; because we have instructed the court to recalculate the fair value of BSC in accordance with this opinion, 

these payment terms may need to change based on the needs 

and abilities of both parties. Accordingly, we vacate the judgment amount, including the determination of terms and conditions, and direct that after performing the fair value calculation 

required by this opinion and based upon the existing record, 

the district court shall determine the terms and conditions of 

the purchase, which may include payment of the purchase price 

in installments, with or without interest, as the court deems 

appropriate in light of the recalculated purchase price.

VI. CONCLUSION

We conclude that the district court erred in its determination 

of the fair value of BSC, both because it did not use the correct definition and because it subjected the Estate’s shares to 

discounts. As such, we vacate the award, and we reverse and 

remand with directions for further proceedings consistent with 

this opinion. However, we affirm the district court’s denial of 

attorney fees and other expenses.

Affirmed in part, vacated in part, and in part 

reversed and remanded with directions.

Heavican, C.J., and Stacy, J., not participating.