Benjamin v. Bierman ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    08/07/2020 12:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    BENJAMIN v. BIERMAN
    Cite as 
    305 Neb. 879
    Brenda L. Benjamin, Personal Representative of the
    Estate of Mark W. Benjamin, deceased, appellant
    and cross-appellee, v. Douglas S. Bierman and
    Sixth Street Rentals, L.L.C., appellees
    and cross-appellants.
    Brenda L. Benjamin, Personal Representative of the
    Estate of Mark W. Benjamin, deceased, appellant
    and cross-appellee, v. Douglas S. Bierman et al.,
    appellees and cross-appellants.
    ___ N.W.2d ___
    Filed May 22, 2020.     Nos. S-19-328, S-19-329.
    1. Trial: Witnesses: Evidence: Appeal and Error. In a bench trial of an
    action at law, the trial court is the sole judge of the credibility of the
    witnesses and the weight to be given their testimony; an appellate court
    will not reevaluate the credibility of witnesses or reweigh testimony but
    will review the evidence for clear error.
    2. Trial: Equity: Appeal and Error. On appeal from the bench trial of an
    equity action, the standard of review is de novo on the record and the
    court must resolve questions of law and fact independently of the trial
    court’s determinations.
    3. Equity: Appeal and Error. When the evidence is in conflict, the
    appellate court considers and may give weight to the fact that the trial
    court observed the witnesses and accepted one version of the facts
    over another.
    4. Contracts. The interpretation of a contract and whether the contract is
    ambiguous are questions of law subject to independent review.
    5. ____. A contract written in clear and unambiguous language is not sub-
    ject to interpretation or construction and must be enforced according to
    its terms.
    6. ____. The court must accord clear terms their plain and ordinary mean-
    ing as an ordinary or reasonable person would understand them.
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    7. ____. The fact that the parties have suggested opposite meanings of a
    disputed instrument does not necessarily compel the conclusion that the
    instrument is ambiguous.
    8. ____. A court is not free to rewrite a contract or to speculate as to terms
    of the contract which the parties have not seen fit to include.
    9. ____. Extrinsic evidence is not permitted to explain the terms of a con-
    tract that is unambiguous.
    10. Witnesses: Testimony. The credibility of a witness is a question for the
    trier of fact, and it is within its province to credit the whole of the wit-
    ness’ testimony, or any part of it, which seemed to it to be convincing,
    and reject so much of it as in its judgment is not entitled to credit.
    11. Trial: Expert Witnesses. A trier of fact is not bound to accept expert
    opinion testimony.
    12. Expert Witnesses. The determination of the weight that should be given
    expert testimony is uniquely the province of the fact finder.
    Appeals from the District Court for Buffalo County: John
    H. Marsh, Judge. Affirmed.
    Bradley D. Holbrook and Nicholas R. Norton, of Jacobsen,
    Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellants.
    William J. Lindsay, Jr., and John A. Svoboda, of Gross &
    Welch, P.C., L.L.O., Kenneth F. George, of Ken George Law
    Office, and Luke M. Simpson, of Bruner, Frank & Schumacher,
    L.L.C., for appellees.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Per Curiam.
    I. INTRODUCTION
    Brenda L. Benjamin, personal representative of the estate
    of Mark W. Benjamin, filed separate complaints against
    Douglas S. Bierman (Doug) and Sixth Street Rentals, L.L.C.
    (Rentals), and against Doug, Eugene J. Bierman, and Sixth
    Street Development, L.L.C. (Development) (collectively appel-
    lees). In her complaints, Brenda generally sought an account-
    ing, to dissolve both Rentals and Development, and damages.
    The district court found that appellees breached the operating
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    305 Nebraska Reports
    BENJAMIN v. BIERMAN
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    305 Neb. 879
    agreements of Rentals and Development, ordered an account-
    ing for each, declined to dissolve either, and awarded Brenda
    damages of $22,200 with respect to Rentals and $473,233 with
    respect to Development. We affirm.
    II. BACKGROUND
    This is a companion case to Bierman v. Benjamin. 1 Mark
    passed away on April 14, 2015, leaving his wife, Brenda, as
    his primary beneficiary and the personal representative of
    his estate. In addition to Mark’s share of BD Construction,
    Inc./Kearney (BD), Mark owned a one-half share of Rentals
    (case No. S-19-328) with Doug and a one-third inter-
    est in Development along with Doug and Eugene (case No.
    S-19-329).
    Development is in the business of renting storage units.
    Pursuant to an oral lease, Development also rents, for $8,000
    per month, the office building and shop utilized by BD, and
    it owns another building near the BD building and shop, as
    well as some vacant lots held for sale. Rentals owns trailers
    used for construction offices and storage, and a utility vehi-
    cle, all of which are rented to BD for approximately $4,000
    per month.
    Mark was acting as manager for both Rentals and
    Development at the time of his death. After Mark’s death,
    Doug took over the manager position for both and continues to
    serve in that capacity. The record shows no formal action was
    taken to appoint Doug as manager of Development; rather,
    Doug called Eugene (his father) to inform him that Doug
    was going to elect himself as manager. At a later date, Doug
    issued a formal notice and minutes reflecting that change. In
    the same way, Doug named himself manager of Rentals and
    communicated that change to Brenda. Brenda testified that
    with respect to Development, Doug informed her that he and
    Eugene were prepared to outvote her on anything she might
    1
    Bierman v. Benjamin, ante p. 860, ___ N.W.2d ___ (2020).
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    want to do. As for Rentals, Brenda was less concerned with
    Doug’s naming himself manager, because all of Rentals’ assets
    were in the control of, and maintained by, BD.
    Counsel for Rentals and Development sent notices to Brenda,
    pursuant to the respective separate but identical operating
    agreements, stating that Rentals and Development wished to
    buy out Mark’s shares.
    Brenda testified she and Doug had generally reached an
    agreement that Doug would buy out Mark’s interest in Rentals
    and that Doug and Eugene would buy out Mark’s interest
    in Development. Brenda would then receive Development’s
    interest in a storage facility jointly owned by Development,
    Mark’s estate, and a third entity, as an offset against the pur-
    chase price for Mark’s interest in Development.
    In November 2015, Brenda and Doug agreed to have both
    Rentals and Development valued. As relevant to this appeal,
    the business appraisals were completed by Terry Galloway.
    Galloway testified that Brenda and Doug agreed that December
    31, 2014, was a more reasonable cutoff as the valuation
    date, rather than Mark’s date of death just 4 months later.
    Ultimately, Galloway valued Rentals at $144,400, with Mark’s
    one-half interest valued at $72,200, and valued Development
    at $5,641,700, with Mark’s one-third interest valued at
    $1,880,900. The value of Development included $1.75 million
    in life insurance proceeds on Mark’s life. These valuations
    were completed in March 2016.
    Brenda testified that by the end of March 2016, she became
    aware there was going to be a problem closing on all three enti-
    ties (BD, Rentals, and Development) at the same time. Closing
    was set for April 15, 2016, but it never occurred. Brenda testi-
    fied that Doug refused to close and that he informed her the
    negotiations into BD needed to be rethought in light of the
    values assigned to Rentals and Development. Doug testified
    that he was unsure whether he wanted to own Rentals if he
    did not also own BD and that he did not have the money to
    buy Rentals at the time he sent notice of his election to do so.
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    BENJAMIN v. BIERMAN
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    Doug never offered to close on Rentals. As for Development,
    Doug wanted a determination as to whether the life insur-
    ance proceeds were included in BD before he closed on
    Development.
    Following the failure to close on Rentals and Development,
    Brenda filed lawsuits on June 1, 2016, seeking various forms
    of relief as to both entities. Following a bench trial, the district
    court found that appellees breached the operating agreements
    of Rentals and Development, ordered an accounting for each,
    declined to dissolve either, and awarded Brenda damages of
    $22,200 with respect to Rentals and $473,233 with respect to
    Development. These appeals followed.
    III. ASSIGNMENTS OF ERROR
    On appeal, Brenda assigns that the district court erred in not
    ordering both Rentals and Development dissolved.
    On cross-appeal, appellees assign, restated, that the district
    court erred in (1) finding that the operating agreements set
    forth an unambiguous method for determining fair market
    value; (2) finding that Galloway’s appraisal was fair market
    value for purposes of the operating agreements; (3) finding
    that Galloway was an independent appraiser; (4) finding that
    the proper date of valuation was December 31, 2014, and not
    April 14, 2015; (5) finding that Galloway’s valuation was sub-
    stantially complete as of November 30, 2015, for purposes of
    determining when the 120-day period in which appellees were
    obligated to purchase Mark’s interest; (6) finding that fair mar-
    ket value was established by Galloway’s opinion of value as of
    November 30, 2015; (7) entering judgment without determin-
    ing the correct fair market value of Mark’s interest; (8) finding
    that appellees refused to complete the purchase of Mark’s inter-
    est, because no agreement had been reached on BD; (9) find-
    ing that appellees rejected Galloway’s valuation only when the
    parties did not agree on the value of the BD stock; (10) finding
    that appellees failed to negotiate in good faith and breached
    the contract to purchase Mark’s interest from Brenda under the
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    operating agreements and that such was a substantial failure
    of the exchange; (11) denying Development’s counterclaim
    for specific performance; (12) not using the value determined
    by their appraiser; (13) finding the starting date for accrual of
    interest to be March 30, 2016; and (14) awarding $22,200 and
    $437,233, respectively, plus interest, to Brenda.
    IV. STANDARD OF REVIEW
    [1] In a bench trial of an action at law, the trial court is the
    sole judge of the credibility of the witnesses and the weight to
    be given their testimony; 2 an appellate court will not reevalu-
    ate the credibility of witnesses or reweigh testimony but will
    review the evidence for clear error. 3
    [2,3] On appeal from the bench trial of an equity action, the
    standard of review is de novo on the record and the court must
    resolve questions of law and fact independently of the trial
    court’s determinations. 4 When the evidence is in conflict, the
    appellate court considers and may give weight to the fact that
    the trial court observed the witnesses and accepted one version
    of the facts over another. 5
    [4] The interpretation of a contract and whether the con-
    tract is ambiguous are questions of law subject to indepen-
    dent review. 6
    V. ANALYSIS
    1. Brenda’s Appeal
    On appeal, Brenda argues that the district court erred in
    not ordering Rentals and Development to be dissolved under
    2
    U.S. Pipeline v. Northern Natural Gas Co., 
    303 Neb. 444
    , 
    930 N.W.2d 460
        (2019).
    3
    Id. 4
        See Robertson v. Jacobs Cattle Co., 
    285 Neb. 859
    , 
    830 N.W.2d 191
        (2013).
    5
    See O’Connor v. Kearny Junction, 
    295 Neb. 981
    , 
    893 N.W.2d 684
    (2017).
    6
    DH-1, LLC v. City of Falls City, ante p. 23, 
    938 N.W.2d 319
    (2020).
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    BENJAMIN v. BIERMAN
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    305 Neb. 879
    the authority of Neb. Rev. Stat. § 21-147(a)(4)(B) or (a)(5)(B)
    (Reissue 2012), which subsections provide:
    A limited liability company is dissolved, and its activi-
    ties must be wound up, upon the occurrence of any of the
    following:
    ....
    (4) on application by a member, the entry by the dis-
    trict court of an order dissolving the company on the
    grounds that:
    ....
    (B) it is not reasonably practicable to carry on the
    company’s activities in conformity with the certificate of
    organization and the operating agreement; or
    (5) on application by a member, the entry by the dis-
    trict court of an order dissolving the company on the
    grounds that the managers or those members in control of
    the company:
    ....
    (B) have acted or are acting in a manner that is
    oppressive and was, is, or will be directly harmful to the
    applicant.
    As an initial matter, appellees argue that Brenda lacks stand-
    ing to request dissolution. We agree.
    Both Rentals and Development are limited liability corpo-
    rations, governed by the Nebraska Uniform Limited Liability
    Company Act. Under that act, a member is defined as “a person
    that has become a member of a limited liability company under
    section 21-130 and has not dissociated under section 21-145.” 7
    Neb. Rev. Stat. § 21-145 (Reissue 2012) provides that a person
    is “dissociated as a member from a limited liability company”
    upon the death of that person. Thus, upon Mark’s death, he was
    dissociated and was no longer a member per the definition of
    the term under the act.
    7
    Neb. Rev. Stat. § 21-102 (Reissue 2012).
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    Dissociated members’ “right to participate as a member
    in the management and conduct of the company’s activities
    terminates,” 8 and thereafter, a dissociated member has limited
    rights. In the instance presented here, the death of a member,
    “the deceased member’s personal representative or other legal
    representative may exercise the rights of a transferee provided
    in subsection (c) of section 21-141 and, for the purposes of
    settling the estate, the rights of a current member under sec-
    tion 21-139.” 9 These rights are limited and primarily consist
    of the right to have access to records or other information
    concerning the company’s activities.
    Brenda has alleged that dissolution is proper under
    § 21-147(a)(4)(B) and (a)(5)(B). Both of those subsections
    require an application to be made by a member, but Mark
    ceased to be a member upon his death. By virtue of this disso-
    ciation, Brenda is also not a member. As such, she cannot seek
    dissolution under the plain language of the act.
    Nor are we persuaded by Brenda’s contention that article
    IX, section 2, of the operating agreement granted Mark the
    power to transfer governance power, along with his economic
    interest, in Rentals and Development. That section provides:
    Any Member may transfer by gift or bequest all or any
    portion of his or her interest in the Company to a spouse
    or child of the transferring Member, or to a trust estab-
    lished for the benefit of such spouse or child, or to an
    existing Member of the Company upon written notice to
    the Company, of such gift or bequest.
    We read the plain language of this section of the agree-
    ments as permitting the transfer of some or all of a member’s
    or dissociated member’s interest in a limited liability company
    by gift or bequest. Indeed, under Neb. Rev. Stat. §§ 21-140
    and 21-141 (Reissue 2012) of the act, an interest in a limited
    liability company is personal property that is transferable.
    8
    Neb. Rev. Stat. § 21-146(1) (Reissue 2012).
    9
    Neb. Rev. Stat. § 21-143 (Reissue 2012).
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    But any interest that is transferred is accompanied by limited
    rights, as discussed above. 10 We do not read the language of the
    operating agreements as broadening the rights accompanying
    the interest to include governance power or, indeed, any other
    power beyond that permitted by the act.
    We agree with appellees that Brenda lacks standing to seek
    dissolution, and therefore, we find no merit to her assignment
    of error on appeal.
    2. Appellees’ Cross-Appeal
    On cross-appeal, appellees assign 17 separate assignments
    of error. Generally, appellees take issue with the fair market
    value of Rentals and Development, and they assign error
    to the district court’s interpretation of the operating agree-
    ments regarding the calculation of the value, as well as the
    district court’s adoption of one expert’s value over another
    expert’s value. Appellees also argue that the court should
    have ordered specific performance of the contract for the
    purchase of Mark’s shares and that the court erred in finding
    a breach of that contract and awarding Brenda damages for
    the breach.
    (a) Assignments of Error Related
    to Fair Market Value
    Appellees’ primary arguments on appeal center on the fair
    market value of Rentals and Development. Appellees first
    assign that the district court erred in finding that the operating
    agreements set forth an unambiguous method for determining
    the fair market value of Rentals and Development. In contrast,
    Brenda argues that the operating agreements did set forth how
    fair market value was to be determined—either the parties were
    to agree to it or, in the absence of agreement, the parties were
    to appoint an independent, third-party appraiser to calculate
    that value.
    10
    See, § 21-141; Neb. Rev. Stat. § 21-143 (Reissue 2012).
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    [5-9] A contract written in clear and unambiguous lan-
    guage is not subject to interpretation or construction and
    must be enforced according to its terms. 11 The court must
    accord clear terms their plain and ordinary meaning as an
    ordinary or reasonable person would understand them. 12 The
    fact that the parties have suggested opposite meanings of a
    disputed instrument does not necessarily compel the conclu-
    sion that the instrument is ambiguous. 13 A court is not free to
    rewrite a contract or to speculate as to terms of the contract
    which the parties have not seen fit to include. 14 Extrinsic evi-
    dence is not permitted to explain the terms of a contract that
    is unambiguous. 15
    The agreements provide in relevant part:
    In the event that a Member dies . . . , the Company may
    at its option repurchase the deceased . . . Member’s
    interest in the Company for an amount equal to the fair
    market value of such interest on the Member’s date of
    death . . . . The fair market value of the Member’s inter-
    est shall be as agreed in good faith by the Company and
    the personal representative(s) of the deceased Member’s
    estate . . . ; provided that if no such agreement has been
    reached within ninety (90) days of the date of death . . . ,
    then the fair market value shall be determined by an inde-
    pendent and duly qualified appraiser mutually agreeable
    to the Company and the estate of the deceased Member
    . . . which shall equally bear equally [sic] the cost of
    such appraisal. The fair market value of the deceased
    Member’s interest . . . shall be payable by the Company
    to the deceased Member’s estate . . . within one hundred
    11
    DH-1, LLC v. City of Falls City, supra note 6.
    12
    Ray Anderson, Inc. v. Buck’s Inc., 
    300 Neb. 434
    , 
    915 N.W.2d 36
    (2018).
    13
    Id. 14
         Id.
    15
    
         Id.
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    twenty (120) days of the establishment of such fair
    market value on the same payment terms as set forth in
    Section 9.4 of this Agreement.
    We disagree with appellees’ assertion that “fair market
    value” is a term of art necessitating reliance on factors outside
    of the agreements, and instead agree with Brenda’s reading of
    the language of the operating agreements. The plain language
    of the agreements clearly states that “the fair market value
    shall be determined by an independent and duly qualified
    appraiser mutually agreeable to the Company and the estate of
    the deceased Member.” We need not rely on anything further to
    interpret the agreements’ definition of “fair market value.” We
    reject this assignment of error.
    Appellees next assign that the district court erred in finding
    that Galloway’s appraisal was the fair market value of Rentals
    and Development for purposes of the operating agreements,
    that he was independent at the time of his appraisal, that the
    appraisal should be dated as of the end of the calendar year
    preceding Mark’s death, and that the appraisal was substan-
    tially completed as of November 30, 2015.
    [10-12] The credibility of a witness is a question for the
    trier of fact, and it is within its province to credit the whole
    of the witness’ testimony, or any part of it, which seemed to it
    to be convincing, and reject so much of it as in its judgment
    is not entitled to credit. 16 A trier of fact is not bound to accept
    expert opinion testimony. 17 The determination of the weight
    that should be given expert testimony is uniquely the province
    of the fact finder. 18 An appellate court will not reevaluate the
    credibility of witnesses or reweigh testimony but will review
    the evidence for clear error. 19
    16
    Fredericks Peebles v. Assam, 
    300 Neb. 670
    , 
    915 N.W.2d 770
    (2018).
    17
    Id. 18
         Id.
    19
    
         O’Connor v. Kearny Junction, supra note 5.
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    The district court did not err in making these challenged
    findings. First, the record shows that the parties agreed
    Galloway should conduct the appraisal pursuant to the operat-
    ing agreements. The record also supports the district court’s
    finding that the parties were in agreement that the appraisal
    should be done as of December 31, 2014.
    In addition, evidence at trial showed that the appraisal was
    originally received by the parties on November 30, 2015, but
    that discussions were ongoing as to various issues related to
    the appraisal. There is evidence that certain revisions to the
    appraisal were made between November 30, 2015, and the end
    of March 2016. The record supports the district court’s finding
    that the appraisal was substantially complete by November 30
    and that November 30 was appropriate from which to calcu-
    late the 120-day period from which appellees had to comply
    with the terms of the operating agreements for buying out
    Mark’s interest.
    The record is undisputed that Galloway eventually repre-
    sented Brenda’s interests in various negotiations regarding
    Rentals, Development, and BD. The record also shows that
    at the time of the appraisal, Galloway was not representing
    Brenda, and as such, there was evidence to support the court’s
    finding that Galloway was independent.
    We review the factual findings of the district court for clear
    error. We find no such error in the district court’s finding that
    Galloway’s valuation was the fair market value for purposes
    of the operating agreements and in entering judgment accord-
    ingly. Appellees’ assignments of error regarding fair market
    value are without merit.
    (b) Assignments of Error Related
    to Breach of Contract and
    Specific Performance
    Appellees next assign that the district court erred in finding
    that they failed to negotiate in good faith when they rejected
    Galloway’s valuation and refused to close on the Rentals and
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    Development sales only after the parties failed to reach an
    agreement on BD. Appellees further argue that the court erred
    in finding that they breached the agreement to buy Mark’s
    interest. Again, we review the district court’s factual findings
    for clear error and find none.
    At trial, Doug testified that he and Brenda had a meeting
    on November 11, 2015, concerning the value of BD at a time
    when they were also in negotiations over the value of Rentals
    and Development. Doug also testified that 5 minutes into the
    meeting, Brenda said she was “done” and walked out.
    But Brenda testified that her son had open heart surgery
    in Omaha, Nebraska, on November 10, 2015, and that on
    November 11, she was with him as he recovered at the hospi-
    tal and was not at any meeting. The district court specifically
    found Brenda more credible on this point. The court further
    noted that the evidence supported Brenda’s claim that despite
    having agreed on the value of Rentals and Development,
    appellees rejected Galloway’s valuation and failed to close on
    the purchase of Mark’s interests in Rentals and Development
    only after the parties could not reach an agreement on the
    value of BD.
    We find no error in the district court’s conclusion that these
    failures amounted to a failure to negotiate in good faith and a
    breach of the contract to purchase Mark’s interests in Rentals
    and Development.
    Appellees also assign that the district court erred in not
    ordering specific performance of the contract for purchase of
    Mark’s shares. A court cannot award specific performance to
    the breaching party unless the breach is minor or involves no
    substantial failure of the exchange. 20 In this case, the court
    specifically found that the breach was not minor and was a
    substantial failure of the exchange. As noted above, the breach
    involved failure to close on the sale after the terms of the
    20
    See Albers v. Koch, 
    185 Neb. 25
    , 
    173 N.W.2d 293
    (1969).
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    operating agreements regarding that sale were met. We agree
    that this was not minor and was a substantial failure of the
    exchange. This assignment of error is without merit.
    (c) Remaining Assignments of Error
    Appellees also contend that the district court erred in not
    adopting the values of its expert as the values for Rentals and
    Development.
    Doug had an appraisal of Development performed for pur-
    poses of trial with a valuation date of April 14, 2015. The
    appraiser set an adjusted value of $860,000 for Mark’s one-
    third interest in Development, with a total value of $4,019,019.
    The appraiser set an adjusted value of $50,000 for Mark’s one-
    half interest in Rentals, with a total value of $133,129.
    There was no error in this determination. As noted above,
    the record demonstrates that the parties agreed to be bound by
    the fair market value as determined by Galloway. There is no
    merit to this assignment of error.
    Appellees next assign that the district court erred in order-
    ing them to pay interest on the damages award as of March
    30, 2016. Having concluded that Galloway’s fair market value
    was binding; that his appraisal was substantially complete as of
    November 30, 2015; and that appellees breached the contract
    to purchase Mark’s interests, the district court did not err in
    concluding that interest should accrue as of March 30, 2016,
    or 120 days after the determination of fair market value as
    required by the operating agreements. There is no merit to this
    assignment of error.
    In their final assignment of error, appellees assign that the
    district court erred in awarding Brenda damages. The primary
    basis of this assignment of error is appellees’ contention that
    the district court erred in its reliance on Galloway’s appraisal.
    We have previously found no merit to that assertion.
    We additionally observe that appellees suggest Galloway’s
    inclusion of the life insurance proceeds on Mark’s life was
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    305 Neb. 879
    incorrect and that this affected the valuation of Rentals and
    Development as discussed above, as well as Brenda’s ultimate
    award of damages. But appellees did not assign as error any-
    thing related to the inclusion of the life insurance proceeds,
    perhaps because the district court agreed with that position
    and excluded the value of the life insurance when determining
    Brenda’s damages award. Accordingly, we find no merit to this
    assertion or to appellees’ final assignment of error.
    VI. CONCLUSION
    The decision of the district court is affirmed.
    Affirmed.