Farm & Garden Ctr., L.L.C. v. Kennedy ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/20/2018 09:11 AM CST
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
FARM & GARDEN CTR. v. KENNEDY
Cite as 26 Neb. Ct. App. 576
Farm and Garden Center, L.L.C., appellee,
v. Jim K ennedy, appellant.
___ N.W.2d ___
Filed November 20, 2018. No. A-17-834.
1. Expert Witnesses: Appeal and Error. The standard for reviewing the
admissibility of expert testimony is abuse of discretion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
3. Prejudgment Interest: Appeal and Error. Whether prejudgment inter-
est should be awarded is reviewed de novo on appeal.
4. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
aside unless clearly wrong, and a jury verdict is sufficient if there is
competent evidence presented to the jury upon which it could find for
the successful party.
5. Damages: Appeal and Error. On appeal, the fact finder’s determination
of damages is given great deference.
6. Motions for New Trial: Appeal and Error. A motion for new trial is
addressed to the discretion of the trial court, whose decision will be
upheld in the absence of an abuse of that discretion.
7. ____: ____. A motion for new trial should be granted only where there
is error prejudicial to the rights of the unsuccessful party.
8. Rules of Evidence: Expert Witnesses. The admissibility of expert
opinion testimony under the Nebraska rules of evidence should be
determined based upon the standards first set forth in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993).
9. Courts: Expert Witnesses. Under the Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469
(1993), and Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d
862 (2001), framework, the trial court acts as a gatekeeper to ensure the
evidentiary relevance and reliability of an expert’s opinion.
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FARM & GARDEN CTR. v. KENNEDY
Cite as 26 Neb. Ct. App. 576
10. Courts: Rules of Evidence: Expert Witnesses. Before admitting expert
opinion testimony under Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702
(Reissue 2016), a trial court must determine whether the expert’s knowl-
edge, skill, experience, training, and education qualify the witness as
an expert. If the opinion involves scientific or specialized knowledge,
trial courts must also determine whether the reasoning or methodology
underlying the expert’s opinion is scientifically valid.
11. Courts: Expert Witnesses. Normally, after a court finds that an expert’s
methodology is valid, it must also determine whether the expert reliably
applied the methodology.
12. ____: ____. In determining the admissibility of an expert’s opinion, the
court must focus on the validity of the underlying principles and meth-
odology—not the conclusions that they generate. Reasonable differences
in scientific evaluation should not exclude an expert witness’ opinion.
13. Trial: Expert Witnesses: Proof. Once the validity of an expert wit-
ness’ reasoning or methodology has been satisfactorily established,
any remaining questions regarding the manner in which that methodol-
ogy was applied in a particular case will generally go to the weight of
such evidence; vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof remain the tra-
ditional and appropriate means of attacking evidence that is admissible,
but subject to debate.
14. Courts: Expert Witnesses. An expert’s opinion must be based on good
grounds, not mere subjective belief or unsupported speculation.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of words which are plain, direct, and
unambiguous.
16. Prejudgment Interest: Claims. When considering prejudgment interest
under Neb. Rev. Stat. § 45-103.02(2) (Reissue 2010), a two-pronged
inquiry is required to determine whether a claim is liquidated. There
must be no dispute either as to the amount due or as to the plaintiff’s
right to recover.
17. Prejudgment Interest. A claim for prejudgment interest must be fixed
and determined or readily determinable; but it is sufficient for this pur-
pose if it is ascertainable by computation or a recognized standard.
18. Claims. One has a liquidated claim only when there is no reasonable
controversy as to both the plaintiff’s right to recover and the amount of
such recovery.
19. Jury Instructions: Appeal and Error. Jury instructions are subject
to the harmless error rule, and an erroneous jury instruction requires
reversal only if the error adversely affects the substantial rights of the
complaining party.
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FARM & GARDEN CTR. v. KENNEDY
Cite as 26 Neb. Ct. App. 576
20. Jury Instructions: Presumptions. It is presumed a jury followed the
instructions given in arriving at its verdict, and unless it affirmatively
appears to the contrary, it cannot be said that such instructions were
disregarded.
21. Damages: Appeal and Error. The amount of damages to be awarded is
a determination solely for the fact finder, and its action in this respect
will not be disturbed on appeal if it is supported by the evidence and
bears a reasonable relationship to the elements of the damages proved.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
George H. Moyer and Jack W. Lafleur, of Moyer & Moyer,
for appellant.
Sean A. Minahan, of Lamson, Dugan & Murray, L.L.P., and
Frederick T. Bartell, of Fitzgerald, Vetter, Temple & Bartell,
for appellee.
Moore, Chief Judge, and Bishop and A rterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Farm and Garden Center, L.L.C. (Farm & Garden), brought
an action against Jim Kennedy on an unpaid balance for goods
and services provided to him. Kennedy filed a counterclaim
against Farm & Garden for damages based on “lost forage/
bales for the 2012 crop season,” which he claimed was the
result of an improper application of chemicals and fertilizers
by Farm & Garden. A jury returned a verdict of $104,180.27 in
favor of Farm & Garden and a verdict of $7,511.20 in favor of
Kennedy on his counterclaim. Kennedy filed a motion for new
trial on his counterclaim, and Farm & Garden filed a motion
for prejudgment interest. The trial court denied Kennedy’s
motion for new trial and ordered Kennedy to pay Farm &
Garden an additional $46,089.27 in prejudgment interest.
On appeal, Kennedy challenges the admission of Farm &
Garden’s expert’s opinion, the award of prejudgment interest,
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the jury’s verdict on his counterclaim, and the denial of his
motion for new trial. We affirm.
II. BACKGROUND
In 2012, Kennedy, a farmer at the time, resided on land he
referred to as his “home place” (Home Place). That year, he
also rented land from the “Leuthold family” (collectively, the
Leuthold Fields, or separately, Leuthold North or Leuthold
South). Leuthold North (130 acres) was located directly west
of the Home Place; Leuthold South (26.32 acres and 53 acres)
was directly south of Leuthold North. The Leuthold Fields
and the Home Place are located in Stanton County, Nebraska.
During 2011, the Leuthold Fields were part of the Conservation
Reserve Program (CRP), meaning it was not in row crop pro-
duction. According to Farm & Garden’s owner (at the time),
Delwin Herbolsheimer, ground that has been in CRP “has been
neglected for ten plus years, so it’s going to be dead,” and will
need fertilizer and preemergent herbicide after the ground has
been prepared for planting. A Farm & Garden employee said
the Leuthold Fields were “in CRP for a reason . . . [i]t was
poor ground.”
Kennedy brought the Leuthold Fields back into row crop
production by “using an implement to cut up residue or disk
the soil.” This was done multiple times and in multiple direc-
tions, between four and five times prior to planting in 2012.
A Farm & Garden manager visited Kennedy’s farm to discuss
the type of fertilizer and chemical program to be applied to the
Leuthold Fields and the Home Place, and the manager made
recommendations regarding both the fertilizer and chemical
program. Farm & Garden agreed to sell goods and services on
account to Kennedy for the agricultural property he actively
farmed. The services consisted of applying liquid and dry fer-
tilizer and chemicals.
In 2012, Kennedy farmed 870 acres of row crops in Stanton
County, of which 460 acres were planted to corn. Farm &
Garden applied fertilizers and pesticides to all of the acres
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Kennedy farmed. As relevant here, Kennedy planted corn on
209.32 acres of the Leuthold Fields and on 75.89 acres of the
Home Place. In April, a Farm & Garden employee contacted
Kennedy to notify him that dry fertilizer was applied to an
incorrect field. Farm & Garden subsequently applied fertil-
izer and pesticides to all the acres of row crops that Kennedy
farmed that year. Farm & Garden sent Kennedy 39 invoices
with dates ranging from March through July, documenting the
sale of chemicals and fertilizer and the application charges
for Kennedy’s purchases. Farm & Garden issued a credit
for the application to the incorrect field that Kennedy did
not order.
In the 2012 crop season, Stanton County experienced a
drought. Kennedy testified that the corn crop on the Home
Place rose to an even height and was a “healthy green” color.
However, on the Leuthold Fields, there were strips of corn that
were shorter compared to other strips of corn in the same field
and some rows were yellow. According to Kennedy, there was
“[b]arely any green to them.” This effect was described by wit-
nesses as “striping” or “streaking” in the corn.
After making observations of the fields in mid- to late
May 2012, Kennedy contacted Farm & Garden, stating there
was a problem with the variance in the height and coloration
of crops on the Leuthold Fields. Herbolsheimer visited with
Kennedy after looking at the Leuthold Fields and acknowl-
edged there was a problem. Although Kennedy thought it was
too late, Herbolsheimer planned to get more fertilizer and
“top-dress” it on the Leuthold Fields. Kennedy called a Farm
& Garden employee who said he thought applying more prod-
uct would not be useful unless it rained, but Kennedy replied
that Farm & Garden had to follow the steps Herbolsheimer
ordered. Herbolsheimer sent someone with product to attempt
to remediate the condition of the Leuthold Fields on June 26.
According to Kennedy, he never agreed to the further appli-
cation of fertilizer on the Leuthold Fields. Farm & Garden
sent an invoice billing Kennedy a total of $7,511.20 for the
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remedial application of fertilizer on the Leuthold Fields; this
invoice was received as exhibit 75 at trial.
In the last few days of July 2012, Kennedy started to cut
and lay down the cornstalks on the Leuthold Fields into a
“­windrow,” with plans to use it for cattlefeed. He left some
strips for checking the yield, and these were later harvested with
a combine. He had windrowed 41.51 acres on the Home Place
in mid-July; the other 34.38 Home Place acres were chopped
for silage, and some strips were left for checking the yield (also
later harvested). Kennedy let the windrowed corn material dry
to approximately 20-percent moisture before baling; Kennedy
had purchased a new baler “for the specific purpose of bal-
ing this type of material.” He baled the corn material, making
6-foot diameter “cornstalk bales,” and each bale “should have
weighed a minimum of 1400 pounds.” (The terms “cornstalk
bales” and “stover bales” were used interchangeably at trial;
however, Kennedy viewed “stover” as “what is left over after
you’ve harvested a corn crop.”) Brandon Nathan, Kennedy’s
full-time farmhand at the time, recorded in a notepad that he
gathered 156 cornstalk bales on the Home Place and 153 bales
on the Leuthold Fields; however, Nathan could not remember
whether Kennedy baled Leuthold South in 2012, he could not
remember pulling any bales off of Leuthold South, nor could
he remember noticing any of the striping effect on Leuthold
South. Kennedy testified that the electronic bale counter on
his equipment produced the same counts as Nathan’s recorded
counts. Kennedy sold approximately 65 stover bales at $150
each, and he kept some bales to feed his livestock.
According to Herbolsheimer, the products sold to Kennedy
were “on account” and the sale of chemicals, fertilizer, and
application services were invoiced from May 4 through July
16, 2012. Statements which show the balance of the account
indicate the new balance is due on the “10th of each month”
and that a finance charge is computed “at the rate of 1.33
percent per month which is an annual percentage of 16 per-
cent applied to the previous balance end of the month.” The
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total invoice amount for all chemicals, fertilizers, and applica-
tion costs, excluding finance charges reflected in individual
invoices, was $104,180.27. The district court received exhibit
83 showing this total invoice amount.
Despite receiving statements which included finance charges
on overdue balances from Farm & Garden in October and
November 2012, Kennedy did not make payments on his past
due account until he made two separate payments of $2,500 in
April 2013. These were the only payments made by Kennedy.
Farm & Garden sent Kennedy a statement of the balance due
on May 1 totaling $120,892.23.
In June 2013, Farm & Garden filed a complaint against
Kennedy to recover $120,892.23, the amount claimed as
Kennedy’s unpaid account for goods and services provided dur-
ing the 2012 crop year, plus interest, as of May 1. It stated that
“the account accrues interest at the rate of 1.33% per month
pursuant to contract and Neb. Rev. Stat. §45-101.04,” and
prayed for a judgment of $120,892.23 as of May 1, “together
with interest thereafter.” Kennedy asserted in his amended
answer that Farm & Garden negligently and carelessly applied
fertilizer to his farm ground and therefore breached the implied
warranty of good workmanship. As a result, Kennedy claimed
Farm & Garden “conferred no benefit upon [Kennedy] in the
2012 crop season and wasted the fertilizer that was applied,”
and therefore its complaint should be dismissed. Kennedy’s
amended answer included a counterclaim, which alleged that
Farm & Garden breached its agreement to apply chemical and
fertilizer in a workmanlike manner and that by failing to do so,
this caused an irregular growth pattern of the corn crop planted.
Kennedy claimed damages of $99,990 for “lost forage/bales
for the 2012 crop season” and $7,600 to subsequently plant
rye seed as a “cover crop,” which also either did not grow “in
any capacity” or grew “in an irregular pattern.” Additionally,
Kennedy alleged that Farm & Garden applied chemical and
fertilizer to “32 acres of standing CRP” without his authoriza-
tion and that such charges should be deducted from Farm &
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Garden’s claimed damages. Kennedy also asserted that Farm
& Garden’s failure to apply the fertilizer and chemical in a
proper and workmanlike manner would cause carryover losses
for the 2013 crop (this claim was not pursued at trial). Further
amended pleadings were filed, but none of the amendments
materially impact the issues on appeal.
At trial, Kennedy and his farmhand, Nathan, testified about
the striping on the Leuthold Fields and claimed that those
209.32 acres produced only 153 bales of stover. On the other
hand, they claimed the acres baled on the Home Place (which
had no striping) produced 156 bales of stover. The number
of acres baled on the Home Place was alleged to be 39 acres
during some testimony and 41.51 acres in other testimony; the
difference is insignificant to any issue on appeal. The expla-
nation for the alleged disparity in stover bales produced per
acre between the Leuthold Fields and the Home Place was the
primary point of contention between the agronomy experts that
Kennedy and Farm & Garden each had testify.
Kennedy’s expert, Regan Kucera, opined that the cause of
striping on the Leuthold Fields was due to the phosphorous
application being inaccurately applied. Kucera concluded that
68 percent of the field was underapplied and that 32 percent of
the field was overapplied. As to the 41.51 acres on the Home
Place which Kennedy claimed produced 156 bales of stover
at 1,400 pounds per bale, Kucera calculated that would be
3.76 bales per acre. Kucera compared this to the 209.32 acres
on the Leuthold Fields, where the production of 153 bales of
stover calculated to only .73 bales per acre. Kucera testified
that environmental factors such as lack of moisture or too
much heat could keep a corn plant from reaching full matu-
rity, as well as “[m]an-made or man-managed factors” such
as “inappropriate fertility, poor soil structure or just lack of
nutrients applied.”
Farm & Garden’s expert, Michael Goedeken, agreed the
fertilizer was not applied correctly; Goedeken said this was
because the “spinner was not throwing the fertilizer” the correct
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distance, which resulted in a striping effect. Goedeken testified
the misapplication was noted on the invoice dated April 23,
2012, found in exhibit 71. However, Goedeken stated that the
lesser amount of residue produced on the Leuthold Fields in
comparison to the Home Place might be attributable to the
increased drying out of the Leuthold Fields when Kennedy
disked it three to four times (before planting). According to
Goedeken, “the USDA states that each tillage pass takes out
.25 inches of water” and “[i]n 2012 in this area, we were
. . . [s]even to ten inches below normal rainfall . . . during the
growing season.” Goedeken stated that taking another “three-
quarter to an inch away from that, we’re going to cause some
damage to those plants for lack of moisture when we’re already
in a deficit situation.”
Goedeken also opined that the number of stover bales per
acre reportedly harvested on either the Leuthold Fields or
the Home Place was misstated. Farm & Garden called an
appraiser to testify about yield estimates. The appraiser said
many appraisals were done in 2012 “because it was such
a dry year” and “[m]any people either abandoned fields or
chopped fields. . . . that was a very common occurrence.”
The appraiser performed a yield estimate on Kennedy’s corn
crop in 2012. The appraiser estimated 4.3 bushels per acre
on a 57-acre portion of Leuthold South and 5.7 bushels per
acre on a 3.3-acre area also in Leuthold South. The appraiser
testified that 19 acres on Leuthold South were harvested by
a combine for grain. The appraiser also performed estimates
on “Section 34” which was composed of Leuthold North
and the Home Place. He estimated 1.7 bushels per acre for
Leuthold North and 2.6 bushels per acre for the Home Place.
Section 34 included 16 harvested acres. Yield estimate reports
are signed by the appraiser and the farmer, and the appraiser
testified that Kennedy signed the yield estimate reports he
was describing.
According to Goedeken, since grain yields can be used to
predict “residue or cornstalk yields,” and the Leuthold Fields
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and the Home Place had yields estimated to be below 5 bush-
els per acre, then Kennedy’s claims related to the number of
stover bales produced on each property did not add up. For
example, Goedeken calculated that to achieve the 156 stover
bales that Kennedy claimed was produced on 39 acres of the
Home Place, the grain yield average for those 39 acres would
be 88 bushels per acre. However, in 2012 in Stanton County,
“the average yield according to USDA on dryland was . . .
31.3 bushel[s] per acre.” And even Kennedy agreed that his
grain yield per acre was under 5 bushels for the corn crop
planted on the Leuthold Fields and the Home Place. Goedeken
testified that the average cornstalk yield for dryland corn in
Stanton County in 2012 was 1 ton or less of crop residue per
acre. He calculated the 153 stover bales from the Leuthold
Fields to come out “to about a half a ton per acre” and
“[t]hat’s pretty consistent with what I would have expected
in 2012.”
Kucera agreed that with drought-stressed corn, about 1 ton
of silage per acre can be harvested for each 5 bushels of corn
grain per acre that could have been harvested. He acknowl-
edged that typically silage is around 70-percent moisture, so
when calculating for 20-percent moisture (as in Kennedy’s sto-
ver bales), Kucera stated that 5 bushels of grain yields for corn
would produce about “.8 tons [of stover] per acre.”
The jury returned a verdict of $104,180.27 in favor of Farm
& Garden and a verdict of $7,511.20 in favor of Kennedy on
his counterclaim. The district court entered judgment on the
jury verdicts on March 24, 2017. On March 29, Kennedy filed
a motion for new trial on his counterclaim, and on April 3,
Farm & Garden filed a motion for an award of prejudgment
interest on the judgment. The district court entered an order on
July 12 denying Kennedy’s motion for new trial and sustain-
ing Farm & Garden’s motion; the court awarded prejudgment
interest in the amount of $46,089.27 in accordance with Neb.
Rev. Stat. § 45-104 (Reissue 2010). Kennedy timely filed a
notice of appeal.
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III. ASSIGNMENTS OF ERROR
Kennedy assigns, restated and reordered, that the district
court erred (1) by allowing the testimony of Farm & Garden’s
expert witness and (2) by awarding prejudgment interest.
Kennedy also claims (3) the verdict on Kennedy’s counter-
claim does not respond to issues submitted to the jury for
decision because it is contrary to law and to the evidence of
Kennedy’s damages and (4) the district court erred by denying
his motion for new trial on his counterclaim.
IV. STANDARD OF REVIEW
[1,2] The standard for reviewing the admissibility of expert
testimony is abuse of discretion. Hemsley v. Langdon, 299
Neb. 464, 909 N.W.2d 59 (2018). An abuse of discretion
occurs when a trial court’s decision is based upon reasons
that are untenable or unreasonable or if its action is clearly
against justice or conscience, reason, and evidence. Lombardo
v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
[3] Whether prejudgment interest should be awarded is
reviewed de novo on appeal. Roskop Dairy v. GEA Farm Tech.,
292 Neb. 148, 871 N.W.2d 776 (2015).
[4,5] A jury verdict may not be set aside unless clearly
wrong, and a jury verdict is sufficient if there is competent
evidence presented to the jury upon which it could find for
the successful party. Lowman v. State Farm Mut. Auto. Ins.
Co., 292 Neb. 882, 874 N.W.2d 470 (2016). On appeal, the
fact finder’s determination of damages is given great defer-
ence. Id.
[6,7] A motion for new trial is addressed to the discretion of
the trial court, whose decision will be upheld in the absence of
an abuse of that discretion. Robinson v. Dustrol, Inc., 281 Neb.
45, 793 N.W.2d 338 (2011). A motion for new trial should be
granted only where there is error prejudicial to the rights of the
unsuccessful party. Hegarty v. Campbell Soup Co., 214 Neb.
716, 335 N.W.2d 758 (1983).
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V. ANALYSIS
1. Expert Testimony
Kennedy argues that the district court erred by allowing
the testimony of Farm & Garden’s expert witness, Goedeken.
Kennedy’s counterclaim sought damages for “lost forage/
bales” in the 2012 crop season; therefore, his claim for dam-
ages was premised on the alleged disparity in cornstalk or
stover bales produced per acre between the Leuthold Fields
(which had the striping effect) and the Home Place (no strip-
ing effect). Kennedy contends, “There is absolutely no foun-
dation for [Goedeken] to say that to produce the number of
bales of stover that . . . Kennedy reported would have required
a corn yield of 25.7 bushels per acre from the Leuthold farm
or 88 bushels per acre from his home place.” Brief for appel-
lant at 20. Before reaching the specifics of Kennedy’s chal-
lenge to Goedeken’s opinion, it is helpful to further set out the
position taken by Kennedy’s expert, Kucera.
(a) Kennedy’s Expert Witness
Kucera knew Kennedy because Kucera had been working
as Kennedy’s corn and soybean seed supplier. Kucera took
“stover samples” from Leuthold North and the Home Place
in mid-July 2012 to test for nitrates to make sure the stover
would be safe to feed to livestock. He did not take sam-
ples from Leuthold South. He first sampled Leuthold North,
where the stover had “already been cut and laid down into a
­windrow.” He noticed some windrows were larger, “meaning
there were more stalks in it,” and some were not as large.
At that time, Kennedy had not yet windrowed at the Home
Place, “the stalks were still standing,” and the plants “were
more consistent across the field.” Kucera concluded fertil-
izer had been inaccurately applied in 2012—specifically, that
phosphorous levels were different and that the less productive
plants were “in areas of the field that had low soil test values
for phosphorous.” Kucera stated that incorrectly applying the
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phosphorous nutrient “early on is setting that field and those
strips up for failure for multiple years.”
Kucera also testified that the average yield per acre for the
Leuthold Fields was less than 5 bushels per acre. The average
yield per acre for the Home Place was also less than 5 bushels
per acre. Kennedy testified to these same yields as well. Kucera
acknowledged that Kennedy generally practiced “no-till farm-
ing,” meaning a minimum amount of tillage would be done
prior or during the raising of the crop. “Tillage would be turn-
ing the soil over, burying residue, those types of thing[s].”
Kucera was aware that Kennedy disked (a type of tillage)
the Leuthold Fields four to five times, and Kucera agreed
that when a field is disked, the moisture content of the soil is
decreased. He also agreed that moisture content is important
because “[t]hat basically starts the whole germination and
growing process.” Kucera did not take soil samples from the
Leuthold Fields, and he did not know whether Kennedy disked
the Home Place, but agreed that under a no-till practice, “you
would not do tillage.”
Kucera acknowledged that the University of Nebraska
Extension Service “NebGuide, Number G1846” (Nebraska
Guide) tells “you that if you harvest a certain number of
bushels, you can expect a certain amount of stover.” But
his position was that while “you cannot have grain without
stover, stalks, leaves, . . . [y]ou can, however, have stover,
stalks, leaves . . . and have very little grain.” He testified that
Kennedy’s farms had very little grain, but still had stover.
Kucera claimed there was no formula available to determine
how much crop residue could be produced from a given yield
of corn.
(b) Farm & Garden’s Expert Witness
Goedeken was expected to testify about Kennedy’s corn-
stalk bale harvest in 2012, including (1) the alleged number
of bales harvested from the Home Place in contrast to the
alleged number of bales harvested from the Leuthold Fields,
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(2) the amount of yield necessary to produce 1 ton of residue,
(3) Kennedy’s 2012 yield records for the Leuthold Fields and
the Home Place, and (4) Goedeken’s experience and knowl-
edge of 2012 yields for dryland farms in Stanton County.
During discovery, Goedeken opined that the number of bales
per acre reportedly harvested on either the Leuthold Fields
or the Home Place was misstated by Kennedy and his farm-
hand, Nathan.
Kennedy filed a motion in limine to exclude Goedeken’s
testimony on the first day of trial, March 13, 2017. The
motion alleged that Goedeken’s reasoning and methodol-
ogy used to reach his conclusion was “flawed and faulty.”
Specifically at issue was Goedeken’s reliance on an article
designated in the Nebraska Guide, which included a formula
for estimating the number of tons of crop residue that will be
produced by a certain corn yield. Kennedy’s motion asserted
that the Nebraska Guide provided “a formula for estimating
the number of tons of crop residue that will be produced by
a certain corn yield,” but that it did “not offer any informa-
tion about drought stressed crops or the residue produced by
drought stressed crops.” Kennedy claimed that Goedeken’s
opinion “assumes that corn plants which fail to produce an
ear of corn also do not produce a stalk or leaves. He opines
that to produce stover in the quantities claimed by [Kennedy],
there must be corn.”
Before the jury was brought in on the second day of trial,
the court heard arguments on Kennedy’s motion in limine.
Kennedy’s counsel argued it is illogical to say that “since we
didn’t raise any corn, we didn’t have any stalks,” so it cannot
be said that “you have to have ‘X’ number of bushels of corn
in order to have ‘X’ number of tons of silage.” He concluded,
“It’s just not scientifically true or accurate,” and he informed
the court it was “not supposed to allow junk science to get to
the jury, and this is pretty junkie.” Following a brief recess,
the district court stated from the bench that it did not think
Goedeken’s opinion was that since the crop did not produce
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any grain, then it could not have produced any stover. Rather,
the court stated it understood the opinion to say that “to pro-
duce that much stover would have required a yield of 88 bush-
els per acre and that nowhere in Stanton County did any one
producer produce that much dryland corn.” The court found
that Goedeken’s methodology could be applied to the facts at
issue and overruled Kennedy’s motion in limine.
[8,9] The Nebraska Evidence Rules provide: “If scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the
form of an opinion or otherwise.” Neb. Evid. R. 702, Neb.
Rev. Stat. § 27-702 (Reissue 2016). The Nebraska Supreme
Court held in Schafersman v. Agland Coop, 262 Neb. 215, 631
N.W.2d 862 (2001), that the admissibility of expert opinion
testimony under the Nebraska rules of evidence should be
determined based upon the standards first set forth in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Under the Daubert/
Schafersman framework, the trial court acts as a gatekeeper to
ensure the evidentiary relevance and reliability of an expert’s
opinion. Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d
59 (2018).
[10,11] As the Nebraska Supreme Court stated in King v.
Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 225-26,
762 N.W.2d 24, 42 (2009):
Before admitting expert opinion testimony under Neb.
Evid. R. 702, a trial court must determine whether the
expert’s knowledge, skill, experience, training, and edu-
cation qualify the witness as an expert. If the opinion
involves scientific or specialized knowledge, trial courts
must also determine whether the reasoning or method-
ology underlying the expert’s opinion is scientifically
valid. Under Daubert, evidentiary reliability depends on
scientific validity. Normally, after a court finds that the
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expert’s methodology is valid, it must also determine
whether the expert reliably applied the methodology.
Based on the record and briefs on appeal, Goedeken’s quali-
fications as an expert are not in dispute. Therefore, we first
evaluate the scientific validity of his methodology and then
consider Goedeken’s application of that methodology.
(b) Scientific Validity
of Methodology
In evaluating the validity of scientific testimony, a trial
court considers a number of factors. These include (1) whether
the theory or technique can be, and has been, tested; (2)
whether the theory or technique has been subjected to peer
review and publication; (3) the known or potential rate of
error, and the existence and maintenance of standards control-
ling the technique’s operation; and (4) the “‘“general accept­
ance”’” of the theory or technique. See Hemsley, 299 Neb.
at 474, 909 N.W.2d at 68 (setting out Daubert reliability fac-
tors). The U.S. Supreme Court noted that this reliability test
is “‘flexible’” and that the district court is given “the same
broad latitude when it decides how to determine reliability
as it enjoys in respect to its ultimate reliability determina-
tion.” See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141,
142, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999) (discussing
Daubert factors).
[12] In determining the admissibility of an expert’s opinion,
the court must focus on the validity of the underlying prin-
ciples and methodology—not the conclusions that they gener-
ate. Burlington Northern Santa Fe Ry. Co., supra. Reasonable
differences in scientific evaluation should not exclude an
expert witness’ opinion. Id.
Noting these principles, we consider the methodology used
by Goedeken to form his opinion. At the hearing on Kennedy’s
motion in limine, the district court received into evidence
exhibit 104, Farm & Garden’s third supplemental answers
to interrogatories. Exhibit 104 included the subject matter of
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Goedeken’s testimony, facts he relied upon, opinions he was
expected to give, and grounds for his opinions.
Exhibit 104 states:
It is expected that . . . Goedeken will testify that accord-
ing to the deposition, . . . Kennedy stated the home farm
yielded 4 cornstalk bales an acre. Notes provided by
. . . Nathan indicate the Home Place yielded 156 bales on
approximately 39 acres. . . .
. . . [T]the Leuthold fields allegedy produced 153 corn-
stalk bales on a total of 211.2 acres or .72 bales per acre.
Exhibit 104 further indicates that Goedeken calculated the
Home Place would have had to produce 88 bushels per acre to
achieve the number of stover bales claimed for the 39 acres.
Further, Goedeken calculated the Leuthold Fields would have
averaged 25.7 bushels per acre, yet appraisals indicated the
Leuthold Fields averaged 3.6 bushels per acre. Goedeken’s
conclusion, as stated in exhibit 104, is that because of the
2012 drought, Goedeken was not aware of any dryland corn
in Stanton County that produced 88 bushels of corn per acre,
and that therefore, the number of stover bales claimed to have
been produced on the Leuthold Fields or the Home Place
was misstated. Also, because of the proximity of the fields,
Goedeken did not think the grain yields and residue would
have been “dramatically different.”
To reach his opinion, Goedeken relied on his experience and
knowledge of 2012 yields for dryland corn in Stanton County,
Kennedy’s deposition testimony, Nathan’s notes, photographs
of the Leuthold Fields and the Home Place, and Kennedy’s
crop insurance records. In performing calculations regarding
the Leuthold Fields and the Home Place, Goedeken used a for-
mula from the Nebraska Guide. Goedeken assumed the corn-
stalk bale weight, noting that bale weights can differ. Goedeken
then compared his calculation of what he would expect the
bales per acre to have been in 2012 for the Leuthold Fields
and the Home Place with information in Kennedy’s deposi-
tion, Nathan’s notes, and crop insurance records. Goedeken’s
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calculation using the Nebraska Guide is a mathematical for-
mula to which he simply inputted numbers based on the infor-
mation noted.
At the hearing on Kennedy’s motion in limine, both parties
referred to the Nebraska Guide as a “peer-reviewed” publica-
tion, which is a factor that goes to the reliability of Goedeken’s
opinion. Farm & Garden claimed both Goedeken and Kucera
used the same peer-reviewed articles, including the Nebraska
Guide. (Later during trial, Kucera did in fact testify that he
relied on the same Nebraska Guide as Goedeken.) Farm &
Garden also argued Kucera was relying on “Iowa State arti-
cles” that said “basically . . . the same thing. You can expect
a certain amount of dry corn stover from a certain amount
of bushels produced.” Goedeken’s and Kucera’s use of the
Nebraska Guide supports the reliability factor that the method-
ology within the Nebraska Guide is generally accepted within
the field of agronomy. Although Kennedy argued Kucera used
the publication only to analyze and contradict Goedeken’s
opinion, we note that Kucera testified that the Nebraska Guide
is commonly used in reference by people he knows and by
his customers.
The district court took a brief recess to review the infor-
mation, and then it overruled the motion in limine from the
bench. The court found that Goedeken’s methodology could be
applied to the facts at issue in the case. The district court dis-
agreed with Kennedy’s characterization of Goedeken’s opinion;
the court stated, “I don’t think that the opinion is that since
the crop didn’t produce any grain, that, therefore, it couldn’t
have produced any stover.” The court understood Goedeken’s
opinion to be that to produce the amount of stover claimed by
Kennedy “would have required a yield of 88-bushels per acre
and that nowhere in Stanton County did any one producer pro-
duce that much dryland corn.”
When making the determination of admissibility of
Goedeken’s opinion, the district court had access to exhibit 104
which showed Goedeken’s methodology and how he applied
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the methodology to the facts of the case. It also had access
to the Nebraska Guide that Goedeken relied upon, as it was
attached to Kennedy’s motion in limine for reference, and
Goedeken later testified to the words of the paragraph he
relied upon as a “rule of thumb.” Under Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 139, 119 S. Ct. 1167, 143 L. Ed. 2d
238 (1999), the district court is entitled to a “broad latitude” on
the issue of reliability where it received information regarding
the peer-reviewed nature of the Nebraska Guide publication
and reliance on the publication by both agronomist experts in
the case.
The validity of Goedeken’s methodology was properly
established.
(c) Application of Methodology
[13] Once a methodology has been established, the court
must then determine whether the reasoning or methodology can
be properly applied to the facts in issue. See McNeel v. Union
Pacific RR. Co., 276 Neb. 143, 753 N.W.2d 321 (2008). This
second inquiry, sometimes referred to as “‘“fit,”’” assesses
whether the scientific evidence will assist the trier of fact
to understand the evidence or to determine a fact in issue
by providing a “‘valid scientific connection to the pertinent
inquiry as a precondition to admissibility.’” McNeel, 276 Neb.
at 153, 753 N.W.2d at 330 (quoting Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993)). Once the validity of an expert witness’
reasoning or methodology has been satisfactorily established,
any remaining questions regarding the manner in which that
methodology was applied in a particular case will generally
go to the weight of such evidence. Schafersman v. Agland
Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). Vigorous cross-
examination, presentation of contrary evidence, and careful
instruction on the burden of proof remain the traditional and
appropriate means of attacking evidence that is admissible, but
subject to debate. Id.
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At issue here was whether Goedeken’s methodology using
grain yields to estimate stover yields could be properly applied
to explain the difference between the stover bale production
on the Leuthold Fields and the Home Place in 2012. It was
Goedeken’s opinion that the number of stover bales per acre
reportedly harvested on either the Leuthold Fields or the Home
Place was misstated. As to that conclusion, Kennedy’s counsel
specifically challenged Goedeken during cross-­examination, as
set forth in the following colloquy:
Q: Okay. Now, the paragraph that you relied upon says,
“The amount of crop residue produced is related to grain
production. Approximately one ton of crop residue at 10
percent moisture is produced with 40 bushels of corn or
grain sorghum, 30 bushels of soybeans and 20 bushels
of wheat.”
A: Correct.
Q: That’s a rule of thumb?
A: Rule of thumb.
Q: Okay. But it doesn’t say that if there is no corn that
there will be no residue, does it?
A: No, it does not.
Q: So what you’re telling the ladies and gentlemen of
the jury here is that you think the amount of crop resi-
due that . . . Kennedy reported from his acres, 40.51, is
too high?
A: From my experiences in 2012, that’s quite a bit of
residue.
Q: Quite a bit. Impossible?
A: Improbable.
To determine the cornstalk or stover yield per acre based
on grain yield, Goedeken used data collected from the U.S.
Department of Agriculture that reported the 10-year average
dryland yield for Stanton County was 136.8 bushels per acre
and that the average yield in 2012 was 31.3 bushels per acre.
Goedeken’s reliance on this information was not challenged.
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Goedeken then divided the 10-year average dryland yield
(136.8 bushels per acre) by 40 bushels (amount of bushels of
corn in Nebraska Guide formula to produce 1 ton of stover)
to get an average of 3.42 tons of residue produced per acre in
Stanton County for dryland corn based on the 10-year average.
However, in 2012, Stanton County’s average yield for dryland
corn was only 31.3 bushels per acre. Since the average corn
crop yield in 2012 was only about 23 percent of the 10-year
average, then the estimated stover yield would be similarly
reduced (based on our calculations, this results in a stover
yield of approximately .78 of a ton per acre). This is con-
sistent with Goedeken’s testimony that the average cornstalk
yield for dryland corn in Stanton County in 2012 was 1 ton
or less of crop residue per acre. He then calculated the 153
stover bales from the Leuthold Fields to come out “to about a
half a ton per acre” and “[t]hat’s pretty consistent with what
I would have expected in 2012.” Goedeken’s application of
the Nebraska Guide formula to Stanton County and more spe-
cifically to the yield estimates for the properties at issue was
simply a matter of mathematics. His testimony at trial regard-
ing his yield estimates under the Nebraska Guide matched the
same calculations contained in exhibit 104 and considered at
the motion in limine. Accordingly, the district court did not
abuse its discretion by allowing this testimony.
Further, as to whether the Nebraska Guide formula could
be properly applied to the facts involving Kennedy’s drought-
stressed crops, the district court determined that the issue of
applicability could be addressed through cross-examination
and challenging the credibility of the witness. As indicated in
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 682
(2001), the weight to be given Goedeken’s testimony by the
jury could be impacted by vigorous cross-examination and the
presentation of contrary evidence. In this case, Kennedy had
ample opportunity to challenge Goedeken’s testimony regard-
ing the Nebraska Guide articles, as noted in the example above.
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The record shows Goedeken was sufficiently questioned not
only through cross-examination, but also through a developed
direct examination regarding his application of the Nebraska
Guide formula to the facts of this case.
(d) Summary
[14] Goedeken’s opinion was based on more than mere sub-
jective belief or unsupported speculation, even if, as the record
revealed, some numbers Goedeken used were not precise. The
numbers Goedeken used in forming his opinion—from the
variety of sources he consulted, as well as his personal knowl-
edge—were acceptable to rely upon under Neb. Evid. R. 703,
Neb. Rev. Stat. § 27-703 (Reissue 2016) (facts or data expert
relies upon may be “perceived by or made known to him at or
before the hearing” and “need not be admissible in evidence”
if experts in field reasonably rely on such facts or data in
forming opinions or inferences). An expert’s opinion must be
based on good grounds, not mere subjective belief or unsup-
ported speculation. King v. Burlington Northern Santa Fe Ry.
Co., 277 Neb. 203, 762 N.W.2d 24 (2009). However, courts
should not require absolute certainty. Id.
The formula Goedeken relied upon to perform his calcula-
tions challenging Kennedy’s claimed stover yield production
came from the Nebraska Guide, a peer-reviewed source recog-
nized as generally accepted within the agronomy field. Even
Kucera referred to the Nebraska Guide; he simply disagreed
with the conclusions reached by Goedeken. However, we note
that even Kucera agreed that 5 bushels of grain yields for corn
would produce about “.8 tons [of stover] per acre.”
In determining admissibility of an expert’s opinion, the
court must focus on the validity of the underlying principles
and methodology—not the conclusions that they generate.
Burlington Northern Santa Fe Ry. Co., supra. Reasonable dif-
ferences in scientific evaluation should not exclude an expert
witness’ opinion. Id. We conclude the district court did not
abuse its discretion in admitting Goedeken’s testimony.
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2. Prejudgment Interest
Following the jury’s verdict in its favor, Farm & Garden
filed a “Motion to Award Interest on Judgment,” in which
it claimed entitlement to prejudgment interest pursuant to
§ 45-104. The district court entered an order on July 12, 2017,
awarding prejudgment interest of $46,089.27. We note that
although the July 12 order indicates that Farm & Garden’s
motion for interest (and Kennedy’s motion for new trial) were
heard on May 5, the bill of exceptions for that hearing is
not contained in our record. Nevertheless, the July 12 order
informs us of the arguments made at that hearing. The order
initially states:
[Kennedy] first argues that [Farm & Garden] had
initially requested interest pursuant to Neb. Rev. Stat.
§45-101.04, but that since the verdict, [Farm & Garden’s]
statutory basis for interest has changed, implying that
[Farm & Garden] cannot change the statutory basis for
its request. The Court disagrees. [Kennedy] has provided
no case precedent for this proposition, nor does the statu-
tory language impart such a restriction. On the contrary,
the statutory language “shall be allowed” mandates the
payment of interest in the event that the facts of the case
comport with the opportunity to allow interest. Such is
the situation in the present case.
We first take up Kennedy’s argument about Farm & Garden
changing its statutory basis for interest. It is true that Farm
& Garden’s operative pleading stated that Kennedy had “an
unpaid account for goods, services, and interest in the sum
of $120,892.23, and the account accrues interest at the rate
of 1.33% per month pursuant to contract and Neb. Rev. Stat.
§45-101.04.” Kennedy asserts that Farm & Garden “abandoned
§45-101.04.” Reply brief for appellant at 4. This would appear
to be true. Neb. Rev. Stat. § 45-101.04 (Reissue 2010) pro-
vides a basis for Farm & Garden’s initial claim of 1.33-percent
interest per month on unpaid balances after 30 days; it states,
in relevant part:
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The limitation on the rate of interest provided in
section 45-101.03 [any rate of interest may be agreed
upon, not exceeding 16 percent on an unpaid principal
balance] shall not apply [in a number of circumstances,
including]:
....
(7) Interest charges made on open credit accounts by
a person who sells goods or services on credit when the
interest charges do not exceed one and one-third percent
per month for any charges which remain unpaid for more
than thirty days following rendition of the statement
of account.
At trial, Herbolsheimer testified that his financial arrange-
ment with customers did not involve a “formal credit app,”
but, rather, customers, like Kennedy, were allowed to maintain
open accounts for goods and services. Herbolsheimer stated
that open accounts bear an interest rate or finance charge of
1.33 percent per month, “which is an annual percentage of
16 percent applied to the previous balance end of the month.”
Kennedy challenged Farm & Garden’s attempt to collect its
1.33-percent monthly finance charge, claiming that there had
been no agreement between Farm & Garden and Kennedy as to
a finance charge. In response to questions asked by Kennedy’s
attorney during cross-examination, Herbolsheimer admitted
that Kennedy never signed “any kind of a paper” with him, nor
did Herbolsheimer have a conversation with Kennedy about
paying “1.33 percent per month.” Further, on appeal, Kennedy
reiterates that there was never an agreement with Farm &
Garden that he “would pay any rate of interest on his account.”
Brief for appellant at 12. Kennedy contends that § 45-101.04
“allows the parties to agree on one and one third percent per
month but if there is no agreement, this statute does not apply.”
Brief for appellant at 12.
Ultimately, rather than seeking the 16 percent per annum
interest to which it may have been entitled under § 45-101.04,
Farm & Garden instead sought the 12 percent per annum
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interest available under § 45-104. Kennedy contends that
Farm & Garden could not change the statutory basis for its
request for interest. Like the district court, we disagree. We
note that Farm & Garden did state in its operative plead-
ing that it was seeking interest; specifically, it prayed for a
judgment of $120,892.23 (for amounts accrued, including
finance charges, as of May 1, 2013), “together with interest
thereafter.” There was no question that Farm & Garden was
seeking interest on unpaid balances preceding the entry of a
final judgment. Therefore, there was no surprise or prejudice
to Kennedy on this issue, nor is there any authority suggest-
ing Farm & Garden was precluded from requesting prejudg-
ment interest under § 45-104 rather than under § 45-101.04
once a judgment was obtained. Further, if a statutory basis
exists for an award of interest, the Nebraska Supreme Court
has held that interest can be awarded even if the petition is
silent as to a request for interest. See 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) (although petition did not pray for inter-
est, party’s right to interest rested upon statutory grounds and
not upon prayer).
We next consider the district court’s determination that the
language “interest shall be allowed” as set forth in § 45-104
“mandates the payment of interest in the event that the facts
of the case comport with the opportunity to allow interest.”
Section 45-104 states:
Unless otherwise agreed, interest shall be allowed at
the rate of twelve percent per annum on money due on
any instrument in writing, or on settlement of the account
from the day the balance shall be agreed upon, on money
received to the use of another and retained without the
owner’s consent, express or implied, from the receipt
thereof, and on money loaned or due and withheld by
unreasonable delay of payment. Unless otherwise agreed
or provided by law, each charge with respect to unsettled
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accounts between parties shall bear interest from the date
of billing unless paid within thirty days from the date
of billing.
(Emphasis supplied.)
Section 45-104 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 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. Fitzgerald v. Community Redevelopment
Corp., 283 Neb. 428, 811 N.W.2d 178 (2012). Section 45-104
allows an interest rate of 12 percent in the four circumstances
enumerated when an interest rate has not otherwise been
agreed upon. Further, that interest shall accrue from the date
of billing when amounts due are not paid within 30 days of
billing, unless otherwise agreed or provided by law. Unlike
Neb. Rev. Stat. § 45-103 (Reissue 2010), which provides
for postjudgment interest, § 45-104 allows for prejudgment
interest. See BSB Constr. v. Pinnacle Bank, 278 Neb. 1027,
776 N.W.2d 188 (2009) (§ 45-104 provides interest rate for
prejudgment interest upon happening of events outlined in
statute). Of the four types of possible judgments set forth in
§ 45-104 which would allow for prejudgment interest, the only
one applicable here relates to “money due on any instrument
in writing.”
Although not argued in the brief to this court, Kennedy’s
counsel asserted at oral argument that § 45-104 does not apply
here because on “money due on instruments in writing” there
has “to be a note.” However, the Nebraska Supreme Court
and this court have applied § 45-104 to different types of
instruments in writing. See, e.g., In re Estate of Peterson, 230
Neb. 744, 433 N.W.2d 500 (1988) (will is instrument in writ-
ing; therefore, when interest is required to be paid on pecu-
niary devise, legal rate of interest is 12 percent per annum,
as required by § 45-104); Valley Cty. Sch. Dist. 88-0005 v.
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Ericson State Bank, 18 Neb. Ct. App. 624, 627, 790 N.W.2d 462,
465 (2010) (§ 45-104 applied to funds held under escrow
agreement; “prejudgment interest accrues on the unpaid bal-
ance of liquidated claims arising from an instrument in writing
from the date the cause of action arose until the entry of judg-
ment, pursuant to Neb. Rev. Stat. §§ 45-103.02(2) (Reissue
2004) and 45-104”).
[15] In determining whether the invoices and statements set-
ting forth the amounts due from Kennedy and payable to Farm
& Garden constitute “money due on any instrument in writ-
ing,” we apply a basic legal principle, namely, that statutory
language is to be given its plain and ordinary meaning, and an
appellate court will not resort to interpretation to ascertain the
meaning of words which are plain, direct, and unambiguous.
Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018). We
conclude that the plain and ordinary meaning of “money due
on any instrument in writing” under § 45-104 includes written
invoices and billing statements sent by a business to a customer
for products and services sold, and unless otherwise agreed or
provided by law, such unsettled accounts between the parties
shall bear interest from the date of billing unless paid within 30
days from the date of billing. Accordingly, Farm & Garden’s
invoices and statements constitute “money due on any instru-
ment in writing” under § 45-104.
With regard to Neb. Rev. Stat. § 45-103.02 (Reissue 2010),
the district court’s July 12, 2017, order states:
Next, [Kennedy] argues that statutory interest should
not be allowed because [Farm & Garden’s] claim is
not “liquidated.” . . . In this case, the total amount
of the unpaid invoices totaling $104,180.27 was not in
controversy. However, [Kennedy] argues that no interest
should be allowed because the litigation put into question
[Farm & Garden’s] right to recover on these invoices,
as addressed in [Kennedy’s] counterclaim of negligent
application and subsequent damages. When a reason-
able controversy exists concerning the claimant’s right
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to recover or the amount of such recovery, the claim is
unliquidated, and prejudgment interest is not allowed.
[Citation omitted.]
. . . [T]he dispute addressed in the litigation was spe-
cifically directed at [Farm & Garden’s] alleged misappli-
cation of phosphorous on the Leuthold field, along with
the attempted “rescue” application on the same field in
June, 2012. There was no evidence submitted during the
trial or argued before the jury which called into question
[Farm & Garden’s] attempt to recover the money owed
for all the other chemicals on [Kennedy’s] other lands
during 2012. These invoices were not part of the litigated
controversy, nor was [Farm & Garden’s] right to recover
those amounts.
Although the district court did not specifically refer to
§ 45-103.02 in its order, it is evident that it considered the
requirements for prejudgment interest under that statute based
on its discussion of liquidated and unliquidated claims. Both
parties make arguments on appeal specific to § 45-103.02,
which states, in relevant part:
(1) Except as provided in section 45-103.04 [excep-
tions not applicable here], interest as provided in section
45-103 shall accrue on the unpaid balance of unliqui-
dated claims from the date of the plaintiff’s first offer
of settlement which is exceeded by the judgment until
the entry of judgment if all of the following conditions
are met:
....
(2) Except as provided in section 45-103.04 [excep-
tions not applicable here], interest as provided in section
45-104 shall accrue on the unpaid balance of liquidated
claims from the date the cause of action arose until the
entry of judgment.
(Emphasis supplied.) Section 45-103.02(1) is not applicable
here. That subsection provides for prejudgment interest (cal-
culated under § 45-103) on the unpaid balance of unliquidated
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claims in those circumstances where an offer to settle by the
plaintiff has been refused and a judgment is awarded which
exceeds the offer. See Martensen v. Rejda Bros., 283 Neb.
279, 808 N.W.2d 855 (2012). However, § 45-103.02(2) pro-
vides for prejudgment interest (determined under § 45-104) on
the unpaid balance of liquidated claims. Prejudgment interest
under § 45-103.02(2) is “recoverable only when the claim is
liquidated, that is, when there is no reasonable controversy as
to either the plaintiff’s right to recover or the amount of such
recovery.” Fitzgerald v. Community Redevelopment Corp., 283
Neb. 428, 461, 811 N.W.2d 178, 203 (2012).
We pause here to note that it has previously been argued
that §§ 45-103.02 and 45-104 are “alternate routes to recover
prejudgment interest and that if the case is a type enumerated
in § 45-104,” then whether there is a reasonable controversy
is irrelevant. Brook Valley Ltd. Part. v. Mutual of Omaha
Bank, 285 Neb. 157, 171, 825 N.W.2d 779, 791 (2013). In
other words, if interest is authorized under § 45-104, then
prejudgment interest can be awarded without regard for the
prejudgment interest requirements under § 45-103.02(2). The
Nebraska Supreme Court opted to not resolve that issue in
Brook Valley Ltd. Part., since it concluded that the facts in that
case did not fall under any of the enumerated categories of
§ 45-104, “[s]o regardless which approach is correct, whether
prejudgment interest is proper depends on whether this case
presented a reasonable controversy.” 285 Neb. at 171, 825
N.W.2d at 791. See, also, BSB Constr. v. Pinnacle Bank, 278
Neb. 1027, 1043, 776 N.W.2d 188, 200 (2009) (party claimed
entitlement to prejudgment interest based on two distinct
theories, either under § 45-103.02 or § 45-104; facts failed to
support prejudgment interest “under either theory”). But see
Records v. Christensen, 246 Neb. 912, 918, 524 N.W.2d 757,
762 (1994) (rejection of plaintiff’s argument that § 45-104
provides an alternative to § 45-103.02 under which to award
prejudgment interest; “even if a litigant’s action is one of
those actions listed in § 45-104, that party first must comply
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with the requirements of § 45-103.02 to be entitled to prejudg-
ment interest at that rate”). Since the parties and the district
court in the present matter considered prejudgment interest
under the requirements of both §§ 45-103.02 and 45-104, we
will do the same here.
[16] When considering prejudgment interest under
§ 45-103.02(2), a two-pronged inquiry is required to determine
whether a claim is liquidated. See BSB Constr., supra. There
must be no dispute either as to the amount due or as to the
plaintiff’s right to recover. Id. When damages are liquidated
and no reasonable controversy exists, the plaintiff is “entitled
to prejudgment interest as a matter of law on that amount.”
Cheloha v. Cheloha, 255 Neb. 32, 44, 582 N.W.2d 291, 301
(1998). See, also, Abbott v. Abbott, 188 Neb. 61, 195 N.W.2d
204 (1972) (where amount of claim is liquidated, compen-
sation in form of prejudgment interest is allowed as matter
of right).
[17] A claim for prejudgment interest must be fixed and
determined or readily determinable; but it is sufficient for this
purpose if it is ascertainable by computation or a recognized
standard. See Schmidt v. Knox, 191 Neb. 302, 215 N.W.2d 77
(1974). If there is a dispute as to either the amount due or the
plaintiff’s right to recover, the Nebraska Supreme Court has
stated “‘the claim is generally considered to be unliquidated
and prejudgment interest is not allowed.’” Graff v. Burnett, 226
Neb. 710, 718, 414 N.W.2d 271, 277 (1987).
The district court awarded Farm & Garden $46,089.27 in
prejudgment interest, which was calculated on only part of the
$104,180.27 judgment the jury awarded to Farm & Garden.
The court deemed $81,933.48 of the judgment to be liquidated
and subject to prejudgment interest under § 45-104 at a rate
of 12 percent per annum from the date of the last billing. To
reach the $81,933.48 figure, the district court subtracted from
the total judgment amount the sums it deemed to be in con-
troversy. The court found $22,246.79 in controverted charges;
these included $13,985.59 and $750 for the phosphorous
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application on the Leuthold Fields noted in exhibit 71, as
well as the $7,511.20 charge for the remedial application
to the Leuthold Fields noted in exhibit 75. The court sub-
tracted $22,246.79 from the jury’s verdict of $104,180.27 to
arrive at $81,933.48, “which the Court finds to be liquidated
and subject to prejudgment interest pursuant to Neb. Rev.
Stat. §45-104.” It then performed the following mathemati-
cal calculation:
Accordingly, 12% prejudgment interest began to accrue
against $81,933.49 on July 16, 2012, the date of the
last billing as shown on Exhibit 83. This interest does
not compound. . . . 12% interest on $81,933.48 equals
$9,832.02 per year, or $26.94 per day [for] 1,711 days. .
. . [P]rejudgment interest amounts to $46,089.27.
Kennedy contends that Farm & Garden’s claim was not liq-
uidated because his counterclaim for damages resulting from
the misapplication of fertilizer created a dispute as to both
Farm & Garden’s right to recover and the amount owed. He
also claims that Farm & Garden’s “claim was disputed in part
because it included prejudgment interest.” Brief for appellant
at 12. At oral argument, Kennedy’s counsel argued that every
Farm & Garden invoice had the 16-percent interest included
and that therefore, all the invoices were in dispute because
the parties had not agreed upon the interest.
Farm & Garden argues there was no reasonable controversy
because “Kennedy offered no evidence or expert testimony
to contend that the amount set forth in Farm [&] Garden’s
invoices and bills was unfair, unreasonable, or the charges
for chemical and fertilizer were excessive.” Brief for appel-
lee at 20. “Instead, the only controversy that existed was the
amount, if any, that Kennedy was entitled to receive relating to
his allegations of improper application of chemical and fertil-
izer. However, those are two separate issues.” Id. “No reason-
able controversy existed that Farm [&] Garden was entitled to
the fair and reasonable value of the chemical and fertilizer it
applied to Kennedy’s fields.” Id.
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Both parties acknowledged at oral argument that the
$104,180.27 awarded to Farm & Garden represented the
charges for products and services Farm & Garden supplied to
all of Kennedy’s fields, not just the contested Leuthold Fields.
Farm & Garden points out that the district court subtracted the
billings reflected in exhibits 71 and 75, since these were the
only charges it deemed to be in dispute. Therefore, Farm &
Garden argues that its claim was liquidated because there was
evidence making it possible to compute the amount of recovery
with exactness (i.e., the invoices showing amounts owed).
We agree with Farm & Garden and the district court that
$81,933.48 of the $104,180.27 jury verdict in favor of Farm
& Garden was not in controversy and could be readily deter-
mined. The amounts reflected in exhibits 71 and 75 were
the only amounts disputed in the course of trial, and these
were the amounts the district court subtracted from the total
judgment to determine the prejudgment interest owed. There
was no testimony or other evidence to suggest Kennedy did
not wish to receive the other products and application serv­
ices provided by Farm & Garden, and as asserted by Farm
& Garden, there was no evidence that those products and
services were charged at an unfair or unreasonable amount.
Herbolsheimer attested that the invoice charges for various
products and application services were for a fair and reason-
able price. Kennedy’s counterclaim sought separate damages
based on his claim that his cornstalk or stover production
was less than it should have been. His counterclaim did not
change the fact that the charges were incurred and owed to
Farm & Garden. Exhibit 83 is a chart that lists all the chemi-
cals, fertilizer, and application costs in each invoice, total-
ing $104,180.27. Even if Kennedy disputed the 1.33-percent
monthly finance charge noted on the invoices for payments
not made in 30 days, he offered no evidence to dispute that
he owed the $104,180.27 in product and services he received
from Farm & Garden, nor that the charges were erroneous
or unreasonable.
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Farm & Garden’s uncontroverted amounts were readily
determinable by computation; all that was required was addi-
tion of the total amount of the invoice charges. Herbolsheimer
testified the total amount on exhibit 83 shows just the invoice
amounts due on Kennedy’s account; they did not include
finance charges. Also, exhibit 83 reflects the credit issued for
Farm & Garden’s erroneous application of product to a field
which Kennedy did not order, meaning this amount was not
factored into the $104,180.27 total.
The district court concluded that the invoices totaling this
amount “were not part of the litigated controversy, nor was
[Farm & Garden’s] right to recover those amounts.” Further,
the court stated that “the refusal of [Kennedy] to pay those
additional invoices . . . did not place those additional invoices
into controversy.”
[18] The Nebraska Supreme Court has made it clear that
one has a liquidated claim only when there is no reasonable
controversy as to both the plaintiff’s right to recover and the
amount of such recovery. See Countryside Co-op v. Harry A.
Koch Co., 280 Neb. 795, 790 N.W.2d 873 (2010). Farm &
Garden’s claim qualified as a liquidated claim because there
was an undisputed amount due which was readily determin-
able and there was no dispute as to Farm & Garden’s right to
recover that amount. The district court did not err in allow-
ing prejudgment interest at the statutory rate prescribed under
§ 45-104 on the liquidated portion of the judgment in favor of
Farm & Garden.
3. Verdict on Counterclaim
Kennedy asserts that the verdict on his counterclaim is
contrary to the law and to the evidence. The jury returned a
verdict of $7,511.20 in favor of Kennedy on his counterclaim.
The amount of $7,511.20 is equal to the cost billed to Kennedy
for the remedial application of chemicals to Kennedy’s corn
crop in the Leuthold Fields. Kennedy claims that the verdict
for this amount does not appropriately assess his damages,
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which he contends should have been for the loss of stover, not
for the amount of an invoice. While it is true that the verdict
in Kennedy’s favor perfectly matches the invoice amount, we
cannot say the jury’s decision to award this particular amount
was clearly wrong. See Lowman v. State Farm Mut. Auto. Ins.
Co., 292 Neb. 882, 874 N.W.2d 470 (2016) (jury verdict may
not be set aside unless clearly wrong; jury verdict is sufficient
if there is competent evidence presented to jury upon which it
could find for successful party).
[19] Jury instruction No. 2 set forth that Kennedy’s coun-
terclaim alleged that Farm & Garden’s application of fertilizer
was negligent and resulted in an irregular growth pattern “and
resulted in damages to [Kennedy] in the form of lost forage/
bales causing him damages.” Further, Kennedy had to prove,
by a greater weight of the evidence, (1) that Farm & Garden
was negligent, (2) that the negligence was the proximate
cause of the alleged damage, and (3) the nature and extent of
“plaintiff’s” damages, if any. We note the reference to “plain-
tiff’s” damages should say “defendant’s” damages. Neither
party’s brief directs us to this error; regardless, we consider
the error harmless in light of the totality of the instructions
given to the jury. See Bunnell v. Burlington Northern RR.
Co., 247 Neb. 743, 745, 530 N.W.2d 230, 231 (1995) (stating
that “[j]ury instructions are subject to the harmless error rule,
and an erroneous jury instruction requires reversal only if the
error adversely affects the substantial rights of the complain-
ing party”).
Jury instruction No. 6 stated that if the jury found Farm
& Garden was negligent and that negligence was the proxi-
mate cause of damage to Kennedy’s crops, then the jury
“must decide how much money it will take to compensate
[Kennedy] for that damage.” If the jury found Kennedy’s
crop was injured, but not destroyed, Kennedy was “entitled to
recover the market value the crop would have[,] had it had not
been injured, minus any market value of the injured crop, and
minus any savings to [Kennedy] in the cost of production.”
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As Farm & Garden noted in its brief, market value was
not defined.
Finally, jury instruction No. 13 told the jury to consider
Farm & Garden’s claim for payment of the value of the bills
and invoices separately from Kennedy’s claim for damages
relating to the alleged negligent application of fertilizer. The
jury was instructed to first determine the amount of money to
which Farm & Garden was entitled for the fair and reasonable
value of its products and services; Farm & Garden “is then
entitled to a judgment against [Kennedy] in that amount.” The
jury was to then determine “the amount of money to which
[Kennedy was] entitled for any lost forage/stover bales result-
ing from any negligent application of fertilizer for the 2012
crop season”; Kennedy “is then entitled to a judgment against
[Farm & Garden] in that amount.”
[20,21] Viewing the totality of the instructions, it was made
clear to the jury that it was to determine any damages owed
to Farm & Garden and, then separately, any damages owed to
Kennedy. It is presumed a jury followed the instructions given
in arriving at its verdict, and unless it affirmatively appears to
the contrary, it cannot be said that such instructions were disre-
garded. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37
(2015). The amount of damages to be awarded is a determina-
tion solely for the fact finder, and its action in this respect will
not be disturbed on appeal if it is supported by the evidence
and bears a reasonable relationship to the elements of the dam-
ages proved. World Radio Labs. v. Coopers & Lybrand, 251
Neb. 261, 557 N.W.2d 1 (1996).
Kennedy’s argument that damages should have been for
loss of stover, not for the amount of an invoice, interprets the
jury instructions and the jury’s verdict too narrowly. We agree
with Farm & Garden’s explanation that “the jury had sufficient
evidence to find Kennedy suffered no loss of cornstalk yield,
or a reduction in the number of bales, but suffered damages in
the amount of the additional inputs that he was obligated to
pay; the ‘fix’ in the amount of $7,511.20.” Brief for appellee at
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27. Thus, “the jury awarded Kennedy the only damage proxi-
mately caused by the misapplication that Kennedy was able to
prove at trial.” Id. In that way, based on competent evidence
presented to the jury, the damages amount was effectively the
same as the amount of the invoice corresponding with the
remedial “top-dress” of fertilizer.
The damages amount of $7,511.20 is supported by the
evidence and bears a reasonable relationship to the elements
of damages proved. Under the limited standard of review for
jury verdicts, we cannot conclude that the jury verdict was
clearly wrong, since there is competent evidence on which the
jury could have reached this specific amount of damages for
Kennedy. Because the fact finder’s determination of damages
is given great deference, and for reasons stated above, we find
the jury verdict on Kennedy’s counterclaim for damages was
not contrary to the evidence or the law.
4. Motion for New Trial
Kennedy argues his motion for new trial should have been
sustained, since there was prejudicial error to him as a result of
the court’s admission of Goedeken’s opinion and as a result of
the jury’s alleged error in the assessment of damages. In light
of our discussion on these two issues as set forth above, we
conclude the district court did not abuse its discretion by deny-
ing Kennedy’s motion for new trial on these grounds.
VI. CONCLUSION
For the reasons stated above, we affirm the judgment of the
district court.
A ffirmed.