Ronnfeldt Farms v. Arp , 32 Neb. Ct. App. 490 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/19/2023 09:07 AM CST
- 490 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490Ronnfeldt Farms, Inc., a Nebraska corporation,
appellant and cross-appellee, v. Jason Arp, Knee
Deep, LLC, a Nebraska limited liability company,
Brian Frost, and Frosty’s Dragline, LLC,
a Nebraska limited liability company,
appellees and cross-appellants.
___ N.W.2d ___
Filed December 19, 2023. No. A-23-116.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law. In reviewing
a summary judgment, an appellate court views the evidence in the light
most favorable to the party against whom the judgment was granted and
gives that party the benefit of all reasonable inferences deducible from
the evidence.
2. Summary Judgment: Proof. A party moving for summary judgment
has the burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that it is entitled
to judgment as a matter of law. If the movant meets this burden, then
the nonmovant must show the existence of a material issue of fact that
prevents judgment as a matter of law.
3. Trial: Evidence. Where reasonable minds could draw different conclu-
sions from the facts presented, there is a triable issue of material fact.
4. Evidence: Proof. Failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.
5. Joint Ventures: Partnerships: Contribution. A joint venture is in the
nature of a partnership and exists when (1) two or more persons con-
tribute cash, labor, or property to a common fund (2) with the intention
of entering into some business or transaction (3) for the purpose of
- 491 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490making a profit to be shared in proportion to the respective contribu-
tions and (4) each of the parties has an equal voice in the manner of its
perform­ance and control of the agencies used therein, though one may
entrust perform­ance to the other.
6. Joint Ventures: Proof. The moving party bears the burden to prove a
joint venture or enterprise exists by clear and convincing evidence.
7. Joint Ventures: Intent. The relationship of joint venturers depends
largely upon the intent of the alleged parties as manifested from the
facts and circumstances involved in each particular case.
8. Joint Ventures. A joint venture can exist only by voluntary agreement
of the parties and cannot arise by operation of law. Even a close rela-
tionship between two parties does not create an implied joint venture.
9. Appeal and Error. Generally, an issue not presented to the trial court
may not be raised on appeal.
10. Pleadings. Pleadings frame the issues upon which the cause is to be
tried and advise the adversary as to what the adversary must meet.
11. ____. The issues in each case will be limited to those which are pled.
12. Election of Remedies. Parties are permitted to plead alternative theories
of recovery unless the theories are so inconsistent that a party cannot
logically choose one without renouncing the other.
13. Negligence: Proof. To prevail in any negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of
such duty, causation, and resulting damages.
14. Negligence. The threshold inquiry in any negligence action is whether
the defendant owed the plaintiff a duty.
15. Negligence: Words and Phrases. A “duty” is an obligation, to which
the law gives recognition and effect, to conform to a particular standard
of conduct toward another.
16. Negligence. If there is no duty owed, there can be no negligence.
17. ____. An actor ordinarily has a duty to exercise reasonable care when
the actor’s conduct creates a risk of physical harm.
18. ____. In a negligence action, in order to determine whether appropriate
care was exercised, the fact finder must assess the foreseeable risk at the
time of the defendant’s alleged negligence.
19. ____. The extent of foreseeable risk depends on the specific facts of
the case and cannot be usefully assessed for a category of cases; small
changes in the facts may make a dramatic change in how much risk is
foreseeable. Thus, courts should leave such determinations to the trier of
fact unless no reasonable person could differ on the matter.
20. Trial: Waiver: Appeal and Error. A party may not waive an error,
gamble on a favorable result, and, upon obtaining an unfavorable result,
assert the previously waived error.
- 492 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490Appeal from the District Court for Burt County: Bryan C.
Meismer, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Stephen D. Mossman and Andrew R. Spader, of Mattson
Ricketts Law Firm, for appellant.
Joel D. Nelson and Joel Bacon, of Keating, O’Gara, Nedved
& Peter, P.C., L.L.O., and David V. Drew, of Drew Law Firm,
P.C., L.L.O., for appellees.
Pirtle, Chief Judge, and Moore and Arterburn, Judges.
Arterburn, Judge.
I. INTRODUCTION
Ronnfeldt Farms, Inc., filed an action against Brian Frost
and his company, Frosty’s Dragline, LLC (collectively Frost),
in the district court for Burt County, Nebraska, asserting that
Frost was a subcontractor to Jason Arp and his company, Knee
Deep, LLC (collectively Arp). Following discovery, Ronnfeldt
Farms adjusted its allegation to claim that Frost was engaged
in a joint venture with Arp. Ronnfeldt Farms argued that as
a joint venturer, Frost was liable for Arp’s breach of contract
and negligence in the manner in which Frost pumped manure
from a hog confinement facility that, according to Ronnfeldt
Farms, led to an outbreak of disease. Additionally, Ronnfeldt
Farms asserted that Frost owed Ronnfeldt Farms an indepen-
dent duty of care that was also breached during the pump-
ing job.
In September 2022, Frost filed a motion for summary judg-
ment on all of Ronnfeldt Farms’ claims, which was granted by
the district court. Ronnfeldt Farms appeals from the court’s
order. On cross-appeal, Frost asserts that the district court
erred in failing to hold that Ronnfeldt Farms could not prove
proximate causation as a matter of law. Frost also alleges that
Ronnfeldt Farms committed spoliation and that thus, Frost is
entitled to an adverse inference against Ronnfeldt Farms.
- 493 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490For the reasons set forth below, we affirm the district court’s
order granting summary judgment as to Ronnfeldt Farms’ joint
venture breach of contract and negligence actions but reverse
the court’s order regarding the independent negligence claim.
We remand the cause for further proceedings.
II. BACKGROUND
1. Factual Background
(a) 2020 Contract
Ronnfeldt Farms is a Nebraska corporation with its prin-
cipal place of business in Burt County. As a food producer,
Ronnfeldt Farms is engaged in commercial activities, includ-
ing a swine farrow to finish operation and a retail multiplying
genetics business. Ronnfeldt Farms owns Windy Hill sow facil-
ity (Windy Hill), also located in Burt County, which houses the
Ronnfeldt Farms’ breeding sows and gilts.
In October 2020, Ronnfeldt Farms entered into an oral
contract with Arp to provide manure pumping services for
Windy Hill. Generally stated, manure pumping at Windy Hill
consists of agitating and pumping manure from a pit located
beneath the swine barn. The manure is pumped through a
hose to nearby farm fields and injected into the fields for
fertilizer.
Arp had pumped manure for Ronnfeldt Farms since 2016.
A written contract was never created for the annual pump-
ing work. In October 2020, Tavis Christiansen, a 50-percent
owner in and operator of Ronnfeldt Farms, reached out to Arp
to discuss that year’s manure pumping schedule. Christiansen
told Arp that he did not want pumping to extend “more than a
couple days into November.”
To meet the requested early November deadline, Arp
reached out to Frost to see if Frost could help pump at Windy
Hill. Frost operated his own manure pumping business. Arp
and Frost had been friends for roughly 30 years. Both were
involved with raising and selling hogs. During the pumping
- 494 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490season, they were in frequent contact with each other, talking
3 to 4 days a week. Although the companies are separate enti-
ties with their own customers, Arp and Frost have a history of
assisting each other on large or time-sensitive jobs. No written
agreements or subcontractor agreements exist between Arp
and Frost.
Frost agreed to help Arp with pumping at Windy Hill. Frost
informed Arp that Frost was currently working at a swine
finishing barn in Colfax County, Nebraska, and asked what
needed to be done prior to arriving at Windy Hill. Arp told
Frost that the equipment needed to be cleaned, dried, and dis-
infected for a specific period of time prior to pumping. Frost
thought Arp stated the proper period was 24 hours, whereas
Arp believes he stated the proper period was 48 hours. In any
event, Frost’s vehicles and equipment were disinfected twice
before arriving at Windy Hill, which was unusual in Frost’s
practice. Frost testified he disinfected twice “just because we
were going to a sow farm. That was the only reason.” He also
testified that the first occasion of cleaning and disinfecting
occurred 2 calendar days prior to pumping at Windy Hill.
(b) Biosecurity Protocols at Windy Hill
In accord with the swine industry generally, Ronnfeldt
Farms monitors biosecurity closely at its various hog barns
and facilities. Among other concerns, there is a risk of dis-
eases such as porcine reproductive and respiratory syndrome
(PRRS) transferring from one farm to another. A predominant
goal of swine producers is to keep PRRS out of every barn,
as it seriously impacts swine health and overall production.
PRRS is a foreign animal disease, specifically a virus, that
causes failure of breeding stock and respiratory tract illness
in young pigs. PRRS can be transmitted through physical
contact or airborne exposure. The virus can be carried by
hogs or other animals, people accessing the farm, vehicles or
equipment entering the farm, and dust in the air. Even with
- 495 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490reasonable biosecurity measures in place, there is still a risk of
PRRS exposure in hog farms.
While the swine industry attempts to prevent PRRS out-
breaks in all barns, sow barn biosecurity is given the highest
priority. This is because sows and newborn piglets are more
affected by PRRS than other pigs.
Biosecurity protocols vary with each farm, and these proto-
cols are ever changing. In his deposition, Christiansen stated
that Ronnfeldt Farms has two key requirements for outside
contractors: (1) Pumping personnel should not pump at another
hog facility directly before coming to Ronnfeldt Farms, but,
instead, should pump cattle manure from cattle barns, dairy
barns, or feedlots, and (2) pumping personnel must stay out
of the barns. Christiansen was less concerned regarding the
downtime between when the equipment had been cleaned fol-
lowing the last job and when pumping began at Windy Hill.
His concern was centered on what residue remained inside the
pumping equipment and hoses. He elaborated that the “solu-
tion to pollution is dilution,” meaning that pumping cattle
manure flushes the equipment and hoses of viruses potentially
transferable and harmful to hogs. In other words, whatever
residue left from the prior pumping job involving cattle that
is released through the hoses on the current job is not likely
to infect the sows and newborn pigs located at the Windy
Hill facility.
Christiansen testified he verbally informed Arp of
Ronnfeldt Farms’ specific biosecurity expectations in 2016
and reminded Arp of those requirements every year thereafter
during their scheduling conversations. However, there was no
evidence that Ronnfeldt Farms ever provided Arp with any
written biosecurity protocols.
In October 2020, Christiansen texted Arp, asking him
whether Frost was “aware of the [b]iosecurity expectations
before, during and on completion” of manure pumping at
Windy Hill. Christiansen told Arp that if Frost was not aware
of the expectations, they should have a conference call to
- 496 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490discuss and review biosecurity measures. Arp responded,
“They are aware of [b]iosecurity . . . [Frost] will do whatever
I tell him to do.” Based on Arp’s representations, Ronnfeldt
Farms did not organize or host a biosecurity conference call
with Arp or Frost.
Unbeknownst to Ronnfeldt Farms, on November 4, 2020,
Frost pumped manure at a swine finishing barn in Colfax
County. This was the last job Frost performed before pump-
ing at Windy Hill. Frost informed Arp that his crew was cur-
rently pumping manure at a swine finishing barn. However,
no evidence exists in the record that would indicate that any-
one associated with Arp told Frost or his employees of any
requirement that his crew not pump at Windy Hill unless it had
pumped at a cattle facility immediately before.
(c) November 2020 Pumping at Windy Hill
Christiansen emailed Arp a schedule and two maps of Windy
Hill and designed a pumping plan with Arp through phone
calls and text messages. Before pumping began, there was no
communication between Ronnfeldt Farms and Frost. The 2020
Windy Hill manure pumping began on November 6 and con-
cluded on November 9. Frost arrived on November 7, and both
Arp and Frost had teams pumping throughout the weekend.
According to the testimony of the manager in charge of Windy
Hill, he normally would have personally met Frost’s crew at
the gate and discussed biosecurity protocols. However, in this
instance, he allowed a member of Arp’s crew to let Frost’s
group in. As a result, when Frost’s crew arrived, the manager
conducted no inspection of Frost’s equipment and no review of
biosecurity protocols; nor did he inquire where Frost had last
pumped. Any discussion of biosecurity would have involved
only the crews of Arp and Frost.
When pumping was completed, Arp sent several invoices
to Ronnfeldt Farms. All but one invoice was paid. Frost never
sent any invoices or billing materials to Ronnfeldt Farms.
Instead, Frost told Arp how many gallons Frost pumped, and
- 497 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490Arp added that amount into its invoice calculations. The plan
was that once Ronnfeldt Farms paid Arp, Arp would pay
Frost. This was consistent with Arp and Frost’s arrangement
where they met once a year to discuss the jobs they collabo-
rated on and determined how to “settle up for the year.”
Frost was never fully compensated for Frost’s portion of
the pumping at Windy Hill. At his deposition, Frost testified
that Arp told him that Ronnfeldt Farms had not fully paid
Arp for the job. Frost “did not feel it was right . . . to collect
money when [Arp] did not collect money.” Arp did, however,
write Frost a check for an undisclosed amount.
(d) PRRS Outbreak
From November 11 to November 13, 2020, Windy Hill
employees began to observe clinical symptoms of PRRS in
sows in the farrowing barn. Blood samples taken from symp-
tomatic sows tested positive for PRRS. Ronnfeldt Farms also
conducted antibody testing on the pigs. The tests revealed that
the pigs were negative for PRRS antibodies. This narrowed the
timeline for exposure, as the earliest a pig’s immune system
makes antibodies is 5 days after exposure.
Ronnfeldt Farms conducted an audit in an attempt to locate
the origin of the PRRS outbreak. The audit reviewed employee
illnesses and paid time off, logsheets documenting visitors,
grounds maintenance records, barn entry protocols, and sanita-
tion measures. External video footage of the pumping teams’
activities was reviewed as well.
The specific genetic sequence of PRRS detected in the
Windy Hill sows was compared to other genetic sequences
associated with other outbreaks in the area and documented
in an authoritative database, but no matches were detected.
Ronnfeldt Farms also took samples from areas and objects
involved in the pumping operation, such as the pit ports
where Arp and Frost pumped, but those tests were negative
for PRRS.
- 498 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490The record suggests that during the audit, Ronnfeldt Farms
learned that Frost had pumped at the Colfax County swine
finishing barn immediately prior to pumping at Windy Hill.
Veterinarian Luke Strehle, employed by Ronnfeldt Farms,
attempted to investigate a possible connection between the
Windy Hill PRRS outbreak and Frost’s Colfax County job.
Strehle asked the owner of the Colfax County pigs if he could
collect samples from the Colfax County farm to test for PRRS
and, if they tested positive, compare their genetic sequence to
the Windy Hill sequence. In his deposition, Strehle testified
that the owner was comfortable with Strehle’s taking samples
only if Frost was present. Strehle further testified that Frost
refused to go and that therefore, he did not have an opportunity
to take or test samples. Frost, however, testified that the owner
simply did not consent to Strehle’s conducting the test.
Nonetheless, Frost and the owner decided to take a sample
from the Colfax County farm and test it for PRRS. The sample
was positive, but the sample was not genetically sequenced.
Christiansen concluded that the results of the audit demonstrate
that the pumping teams were responsible for the outbreak.
2. Procedural Background
Ronnfeldt Farms’ complaint named Arp and Frost as
defend­ants. Two causes of action were listed: one for breach
of contract and the other for negligence. In its complaint,
Ronnfeldt Farms alleges that Frost was a subcontractor to Arp
and Arp’s contract with Ronnfeldt Farms. Ronnfeldt Farms
further argues that by violating biosecurity protocols, Arp
and Frost breached the contract. In addition, Ronnfeldt Farms
alleges that Arp and Frost owed a duty to Ronnfeldt Farms to
follow biosecurity protocols and that by failing to do so, they
were negligent.
The record suggests that sometime during discovery,
Ronnfeldt Farms abandoned its subcontractor theory in favor
of a joint venture theory, claiming that Arp and Frost engaged
in a joint venture when they collaborated on the Windy Hill
- 499 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490pumping job. Ronnfeldt Farms did not file an amended plead-
ing to reflect this shift in its theory of the case.
In September 2022, Frost filed a motion for summary judg-
ment. Ronnfeldt Farms opposed the motion and filed a brief
that detailed its joint venture theory for the first time. Ronnfeldt
Farms’ subcontractor theory was also briefly mentioned, but
this was mainly to acknowledge that both Arp and Frost had
denied that Frost was Arp’s subcontractor.
A hearing on the motion was held in January 2023, and that
same month, the district court entered an order granting Frost’s
motion for summary judgment. On the breach of contract
cause of action, the court first found that there was no contract
between Ronnfeldt Farms and Frost. The court also found that
Frost was not a subcontractor and that Arp and Frost were not
involved in a joint venture. Thus, the court concluded that
Frost could not be held liable for any breach of contract com-
mitted by Arp. On Ronnfeldt Farms’ independent negligence
claim against Frost, the district court found that while Frost
had a duty to Arp, that duty did not extend to Ronnfeldt Farms.
The court concluded there was no genuine issue of material
fact and granted summary judgment for Frost.
That same month, but prior to the filing of the court’s order
on summary judgment, Ronnfeldt Farms and Arp filed a stipu-
lation and a joint motion to dismiss Arp from the case with
prejudice. The district court granted the motion, and thus, from
that point forward, Frost became the sole defendant remaining
in the case.
Ronnfeldt Farms appeals, and Frost cross-appeals.
III. ASSIGNMENTS OF ERROR
In its brief, Ronnfeldt Farms makes 12 assignments of
error, which consolidated and restated assert that the district
court erred in (1) misidentifying undisputed facts and applying
the wrong standard of review for summary judgment, (2) find-
ing that no joint venture existed between Arp and Frost, (3)
not granting Ronnfeldt Farms leave to amend its complaint,
- 500 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490and (4) determining that Frost did not owe an independent
legal duty to Ronnfeldt Farms.
On cross-appeal, Frost assigns that the district court erred
in failing to conclude that (1) Ronnfeldt Farms cannot dem-
onstrate Frost proximately caused the damages as a matter of
law and (2) Ronnfeldt Farms’ failure to preserve certain evi-
dence warrants an inference against Ronnfeldt Farms.
IV. STANDARD OF REVIEW
[1] An appellate court affirms a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
of law. Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d
39 (2023). In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence. Id.V. ANALYSIS
[2-4] A party moving for summary judgment has the burden
to show that no genuine issue of material fact exists and must
produce sufficient evidence to demonstrate that it is entitled
to judgment as a matter of law. Wynne v. Menard, Inc., 299
Neb. 710, 910 N.W.2d 96 (2018). If the movant meets this
burden, then the nonmovant must show the existence of a
material issue of fact that prevents judgment as a matter of
law. Id. Where reasonable minds could draw different conclu-
sions from the facts presented, there is a triable issue of mate-
rial fact. Williamson v. Bellevue Med. Ctr., 304 Neb. 312, 934
N.W.2d 186 (2019). Failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all
other facts immaterial. Freeman v. Hoffman-La Roche, Inc.,
300 Neb. 47, 911 N.W.2d 591 (2018).
- 501 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 4901. Undisputed Facts and Summary
Judgment Standard
Ronnfeldt Farms argues that the district court misidentified
undisputed facts and applied the wrong standard of review for
summary judgment. We find these arguments unpersuasive.
Ronnfeldt Farms asserts that the following two facts, which
were deemed undisputed by the district court, are disputed:
“At some point in the days leading up to the Windy Hill
pumping in 2020, [Arp] asked [Frost if he] would help pump
at Windy Hill,” and “[Frost] had no customer-contractor rela-
tionship or agreement with [Ronnfeldt Farms].” Ronnfeldt
Farms argues that these facts are disputed because Arp and
Frost were engaged in a joint venture. Our analysis below
addresses and rejects Ronnfeldt Farms’ joint venture theory.
Further, after reviewing the record, we find that these facts are
undisputed. Both Arp and Frost testified that Arp asked Frost
to help pump at Windy Hill. No one testified or alleged other-
wise. In fact, Christiansen admitted that he approved of Arp’s
request to ask Frost for help. The evidence also demonstrates
that Frost did not form a contractual relationship or agree-
ment with Ronnfeldt Farms. Frost did not communicate with
Ronnfeldt Farms until pumping had begun. Thus, because
the evidence showed these facts were undisputed, this argu-
ment fails.
Additionally, Ronnfeldt Farms argues that the district court
applied the wrong standard of review for summary judg-
ment. Specifically, Ronnfeldt Farms alleges that the court
only reviewed the undisputed facts in a light most favor-
able to Ronnfeldt Farms. To support its argument, Ronnfeldt
Farms points to the following sentence in the court’s summary
judgment order: “But in reviewing the undisputed facts in
a light most favorable to [Ronnfeldt Farms] here, the Court
does not agree that . . . Arp and Frost were involved in a
Joint Venture with regard to the work done at Windy Hill.”
(Emphasis supplied.)
- 502 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490The record indicates that the district court’s use of the
phrase “undisputed facts” was inadvertent. Clerical errors “are
defined as errors which result ‘from a minor mistake or
inadvertence’ especially in ‘writing or copying something.’”
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 473,
748 N.W.2d 1, 11-12 (2008) (quoting Black’s Law Dictionary
582 (8th ed. 2004)). The district court correctly stated the sum-
mary judgment standard of review earlier in its order:
Summary judgment is justified when there is no genu-
ine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. . . . On a motion
for summary judgment, the evidence is to be viewed most
favorably to the nonmoving party. . . . The question at
that stage “is not how a factual issue is to be decided, but
whether any real issue of material fact exists.”
(Citations omitted.) The court reviewed both disputed and
undisputed facts in its order. Other than the offending phrase
Ronnfeldt Farms has pointed out, there is nothing to suggest
that the district court declined to review all of the evidence in
a light most favorable to Ronnfeldt Farms. We, therefore, find
that the district court applied the correct standard of review.
2. Ronnfeldt Farms’ Joint Venture Claim
(a) Arp and Frost Were Not Engaged
in a Joint Venture
[5-8] Ronnfeldt Farms next argues that there is a genuine
dispute of material fact as to whether Arp and Frost were
engaged in a joint venture. A joint venture is in the nature of
a partnership and exists when (1) two or more persons con-
tribute cash, labor, or property to a common fund (2) with the
intention of entering into some business or transaction (3) for
the purpose of making a profit to be shared in proportion to
the respective contributions and (4) each of the parties has an
equal voice in the manner of its performance and control of
the agencies used therein, though one may entrust perform­
ance to the other. Kohout v. Bennett Constr., 296 Neb. 608,
- 503 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490894 N.W.2d 821 (2017). The moving party bears the burden
to prove a joint venture or enterprise exists by clear and
convincing evidence. Id. The relationship of joint ventur-
ers depends largely upon the intent of the alleged parties as
manifested from the facts and circumstances involved in each
particular case. Id. A joint venture can exist only by voluntary
agreement of the parties and cannot arise by operation of law.
Even a close relationship between two parties does not create
an implied joint venture. Id.The district court found that Arp and Frost both contributed
labor and entered into a business transaction for the purpose
of making a profit. However, the court held that Frost did not
have an equal voice or equal right to control the performance
at Windy Hill. As such, the court determined that Arp and Frost
were not engaged in a joint venture.
We begin our analysis by noting that the joint venture claim
was not raised by Ronnfeldt Farms in its complaint or in any
amended pleadings. The joint venture argument is first raised
in Ronnfeldt Farms’ brief in opposition to Frost’s motion for
summary judgment.
[9] Generally, an issue not presented to the trial court may
not be raised on appeal. See Eletech, Inc. v. Conveyance
Consulting Group, 308 Neb. 733, 956 N.W.2d 692 (2021).
We question whether Ronnfeldt Farms should have made a
motion for leave to amend its complaint and plead the joint
venture theory formally. However, the Nebraska Supreme
Court has recognized that even when claims are not clearly
articulated by an appellant in his or her pleadings or at trial,
the claims may still be considered by an appellate court if the
district court evaluated them. See V.C. v. Casady, 262 Neb.
714, 634 N.W.2d 798 (2001). Therefore, because the district
court evaluated the joint venture theory, we, too, consider
this argument.
Viewing the evidence in a light most favorable to Ronnfeldt
Farms, we find that the first three joint venture elements are
met. The evidence clearly shows that both Arp and Frost
- 504 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490contributed labor and property to the Windy Hill pumping
job. Arp and Frost brought their own teams and their own
pumping equipment to Windy Hill. In addition, both Arp and
Frost had an intention of entering into a mutually beneficial
transaction. Arp asked Frost for assistance to meet Ronnfeldt
Farms’ early November 2020 deadline, and in return, Frost
expected compensation. Further, for Arp and Frost, the pur-
pose of the Windy Hill transaction was to share profits in
proportion to their respective contributions. When the Windy
Hill pumping was completed, Frost provided Arp with a
statement of the total amount of gallons Frost had pumped,
and Arp added that amount to the invoices sent to Ronnfeldt
Farms. Once Ronnfeldt Farms paid Arp in full, Arp intended
to pay Frost a portion respective to the amount of gallons
Frost pumped.
However, even when viewing the evidence in a light most
favorable to Ronnfeldt Farms, we find that Ronnfeldt Farms
failed to demonstrate the existence of a material issue of
fact regarding the equal voice element. Arp was the domi-
nant voice in the performance of and control over the Windy
Hill pumping job because of its longstanding business rela-
tionship with Ronnfeldt Farms. Ronnfeldt Farms was Arp’s
customer and had been since 2016. Before assisting with
pumping at Windy Hill in 2020, Frost had never pumped for
Ronnfeldt Farms.
Arp and Ronnfeldt Farms planned the 2020 pumping job
together through emails, phone calls, and text messages.
Frost was not a part of these conversations and did not com-
municate with Ronnfeldt Farms in any manner until the 2020
pumping job commenced. Arp also told Ronnfeldt Farms,
“[Frost] will do whatever I tell him to do.” One of Arp’s team
members met Frost’s team members at the Windy Hill gates
to let them in and instruct them on biosecurity protocols.
Further, Arp, not Frost, controlled the payment plan for the
job. Once pumping was completed, Frost informed Arp of the
total gallons Frost pumped. Arp then independently calculated
- 505 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490a total charge for Ronnfeldt Farms and sent invoices to be
paid directly to Arp. It was expected that once Ronnfeldt
Farms paid Arp, Arp would then pay Frost.
Ronnfeldt Farms asserts that Frost had an equal voice
because Frost had the freedom to decide whether to assist
Arp and because Frost disinfected their equipment more times
than Arp instructed. We disagree. These facts do not speak to
Frost’s control over the Windy Hill pumping job. They speak
merely to Frost’s control over its own schedule and equipment.
Ronnfeldt Farms also asserts that Frost had an equal voice
because Frost spoke with Ronnfeldt Farms’ veterinarian and
declined to assist in the postoutbreak audit. Assuming without
deciding that this allegation is true, this postpumping event
does not indicate that Frost exercised control over the actual
pumping job at Windy Hill.
Arp and Frost’s history of assisting each other on jobs from
time to time appears to reflect an informal, friendly relation-
ship between similar businesses rather than a joint venture, at
least as it relates to the facts of this case. There is no evidence
that either party defendant intended to form a joint venture.
Arp and Frost own two distinct and separate manure pumping
companies. They each have their own incorporated names and
their own customers. They do not jointly own equipment or
employ the same team members. Significantly, Frost did not
have an equal voice on the Windy Hill pumping job. For all
these reasons, we find that the district court did not err in find-
ing there was no joint venture here.
In so holding, we also reject Ronnfeldt Farms’ argu-
ment that this case requires a holding similar to the one in
Fangmeyer v. Reinwald, 200 Neb. 120, 263 N.W.2d 428(1978). In Fangmeyer, the Supreme Court held that because
it could not be said as a matter of law that the informal busi-
ness relationship at issue did not constitute a joint venture,
it was not error to submit the issue to a jury. Here, although
Arp and Frost’s relationship is informal, the evidence is
clear that their relationship does not meet all of the elements
- 506 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490required to constitute a joint venture as it relates to the Windy
Hill pumping job. Thus, this argument fails. Consequently,
since no joint venture existed, Frost cannot be held liable for
any breach of contract or negligence committed by Arp. The
district court did not err by granting summary judgment on
these claims.
Additionally, because we have found that no joint venture
existed, we need not reach Frost’s contention that the dismissal
of one joint venturer releases all joint venturers.
(b) District Court Not Required to Define
Arp and Frost’s Relationship Outside
of Theories Asserted in Pleadings
[10-12] Ronnfeldt Farms also argues that without defining
the legal relationship between Arp and Frost, the district court
could not make a finding as to whether any legal duties existed
between Arp and Frost and therefore erred in granting sum-
mary judgment. We disagree. Pleadings frame the issues upon
which the cause is to be tried and advise the adversary as to
what the adversary must meet. Spanish Oaks v. Hy-Vee, 265
Neb. 133, 655 N.W.2d 390 (2003). The issues in each case will
be limited to those which are pled. Id. Additionally, parties are
permitted to plead alternative theories of recovery unless the
theories are so inconsistent that a party cannot logically choose
one without renouncing the other. See Thurston v. Nelson, 21
Neb. App. 740, 842 N.W.2d 631 (2014).
Applying those propositions of law here, Ronnfeldt Farms
had the responsibility to plead what contractual or legal rela-
tionship existed between Arp and Frost. Ronnfeldt Farms could
have pled alternative theories of recovery beyond subcontract-
ing and joint venture, but failed to do so. Therefore, the district
court did not err by declining to address issues that were not
pled by the parties or presented to it for disposition.
Based on this finding, we need not address Frost’s theo-
retical argument that if Arp and Frost were in a principal-agent
relationship, Arp’s dismissal bars Ronnfeldt Farms from any
recovery against Frost.
- 507 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 4903. Amending Complaint
Ronnfeldt Farms also argues that the district court should
have granted Ronnfeldt Farms leave to amend its complaint
and erred in limiting its review of the joint venture theory. We
disagree on both fronts. First, the record provided on appeal
does not contain a motion to amend or reform the pleadings as
argued by Ronnfeldt Farms during oral argument. Moreover,
our review of the hearing on the motion for summary judg-
ment also reveals no oral motion to amend. Instead, Ronnfeldt
Farms acknowledged that a contractor-subcontractor relation-
ship between Arp and Frost did not exist, then argued that
they were involved in a joint venture. The court need not
grant leave to amend or reform the pleadings without receiv-
ing a motion asking it to do so. In any event, the district court
did not limit its review of the joint venture theory. The court
directly addressed this issue in its order, stating: “In [its] brief,
[Ronnfeldt Farms] argues that . . . Frost, if not a subcontractor,
must have been involved in a joint venture. Though this cause
of action is not pled in the Complaint, the Court will address
that argument as well.” The court then proceeded to evaluate
the joint venture argument in full, as outlined above. These
assignments are without merit.
4. Ronnfeldt Farms’ Independent
Negligence Claim Against Frost
(a) Frost Owed Ronnfeldt Farms
Duty of Reasonable Care
[13-16] Ronnfeldt Farms also argues that the district court
erred in holding that Frost did not owe an independent legal
duty to Ronnfeldt Farms. To prevail in any negligence action,
a plaintiff must show a legal duty owed by the defendant to
the plaintiff, a breach of such duty, causation, and resulting
damages. Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540(2018). The threshold inquiry in any negligence action is
whether the defendant owed the plaintiff a duty. McReynolds
v. RIU Resorts & Hotels, 293 Neb. 345, 880 N.W.2d 43- 508 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490(2016). A “duty” is an obligation, to which the law gives
recognition and effect, to conform to a particular standard of
conduct toward another. If there is no duty owed, there can be
no negligence. Id.[17-19] The Supreme Court has explained that an actor ordi-
narily has a duty to exercise reasonable care when the actor’s
conduct creates a risk of physical harm. A.W. v. Lancaster Cty.
Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 (2010). In a
negligence action, in order to determine whether appropriate
care was exercised, the fact finder must assess the foresee-
able risk at the time of the defendant’s alleged negligence.
Perry v. Buchanan, 31 Neb. App. 715, 988 N.W.2d 537 (2023)
(petition for further review denied May 23, 2023). The extent
of foreseeable risk depends on the specific facts of the case
and cannot be usefully assessed for a category of cases; small
changes in the facts may make a dramatic change in how
much risk is foreseeable. Id. Thus, courts should leave such
determinations to the trier of fact unless no reasonable person
could differ on the matter. Id.The district court found that Frost had a duty to Arp and
that Arp had a duty to Ronnfeldt Farms. Specifically, the
court found that Frost’s duty to Arp was to meet the expecta-
tions Arp provided regarding pumping at Windy Hill. It was
deemed unreasonable to expect Frost to go beyond Arp and
coordinate directly with Ronnfeldt Farms. Thus, the court con-
cluded that “it is not reasonable to carry Frost’s duty to Arp
beyond Arp and to [Ronnfeldt Farms] here.”
In its brief on appeal, Ronnfeldt Farms argues Frost owed
a duty of reasonable care to Ronnfeldt Farms. We agree. The
standard of care owed by a manure pumping company to the
owner of a facility being pumped and whether the pumper’s
actions satisfied that standard are issues of fact for the jury
to resolve. As an actor at Ronnfeldt Farms’ facility, Frost
had a general duty to exercise reasonable care when its con-
duct created a risk of physical harm. See A.W. v. Lancaster
Cty. Sch. Dist. 0001, supra. We note that in Frost’s answer,
- 509 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490Frost admits that there was a general duty to exercise reason-
able care in the performance of manure pumping operations.
Thus, even though no specific contractual relationship was
identified between Ronnfeldt Farms and Frost, the district
court erred in ruling Frost owed no duty to Ronnfeldt Farms.
However, we agree with the district court’s findings to the
extent that the court found that Frost did not necessarily have
a duty to inquire of Ronnfeldt Farms as to its biosecurity
protocols. Relying on Arp alone for that information was suf-
ficient unless the general standard of care would demonstrate
that Frost knew or should have known that additional steps
should have been taken as part of a general standard of care
in the industry as it relates to the pumping of manure at a
sow barn.
Frost’s contention that this negligence claim is truly a
breach of contract claim is without merit. Ronnfeldt Farms
does not premise this claim on a failure to meet contractual
obligations. This claim is based on the general duty of reason-
able care. Ronnfeldt Farms alleges that Frost breached their
duty of care when pumping at Windy Hill immediately after
pumping at a different hog farm, due to the risk of physical
harm this practice posed based on the possibility that diseases
such as PRRS could have been carried within Frost’s equip-
ment. There is no implication of contractual duties or obliga-
tions here.
In addition, to the extent that Frost argues that public policy
surrounding principal-agent relationships requires us to resist
imposing a duty here, we reject that argument as well. Here,
Frost alludes to the idea that Frost was an agent to Arp, but
elsewhere, Frost refuses to explicitly adopt that relationship
in their brief. In their answer, Frost admits that they have “a
general duty to exercise reasonable care in the performance
of manure pumping operations being performed for a third
party.” Determining that Frost owed Ronnfeldt Farms a duty
of reasonable care does not conflict with public policy. This
is not a duty affecting a principal-agent relationship. It does
- 510 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490not, as Frost argues, require agents to assume everything the
principal communicates is wrong or require agents to commu-
nicate directly with the principal’s customer.
Frost also argues that even if they owed Ronnfeldt Farms
a duty, no breach of the standard of care occurred. But in
order to determine whether appropriate care was exercised,
the fact finder must assess the foreseeable risk at the time of
the defendant’s alleged negligence. See Perry v. Buchanan, 31
Neb. App. 715, 988 N.W.2d 537 (2023) (petition for further
review denied May 23, 2023). Courts should leave such deter-
minations to the trier of fact unless no reasonable person could
differ on the matter. Id. We find that reasonable minds could
differ on whether Frost exercised appropriate care, and as such,
we leave this issue to be resolved by a fact finder.
Having found a general duty of reasonable care exists, we
do not reach Ronnfeldt Farms’ argument that a no-duty deter-
mination must be based upon certain legislative facts.
(b) Ronnfeldt Farms Cannot Revive or
Revisit Its Subcontractor Theory
In arguing its independent negligence claim, Ronnfeldt
Farms proposes that if Frost was a subcontractor, they would
have owed Ronnfeldt Farms a modified duty to disregard obvi-
ously dangerous instructions with respect to biosecurity prac-
tices. However, the record clearly demonstrates that Ronnfeldt
Farms abandoned its former position that Frost was a sub-
contractor to Ronnfeldt Farms. At the hearing on the motion
for summary judgment, counsel for Ronnfeldt Farms stated:
“When we originally filed this complaint in this matter, I
believe that there was . . . an allegation that [Frost] was a
subcontractor to . . . Arp. As we have gone through discovery
in this case, it’s apparent that that’s not the case.” Ronnfeldt
Farms then proceeded on its joint venture theory.
[20] As stated above, parties are permitted to plead alterna-
tive theories of recovery unless the theories are so inconsistent
that a party cannot logically choose one without renouncing
- 511 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490the other. See Thurston v. Nelson, 21 Neb. App. 740, 842
N.W.2d 631 (2014). However, a party may not waive an error,
gamble on a favorable result, and, upon obtaining an unfavor-
able result, assert the previously waived error. Eletech, Inc.
v. Conveyance Consulting Group, 308 Neb. 733, 956 N.W.2d
692 (2021).
When Ronnfeldt Farms abandoned its theory that Frost
was a subcontractor, it essentially retracted this issue from its
pleadings and our purview. Further, arguing that Frost is not a
subcontractor for one theory and then arguing Frost is a sub-
contractor for another is inconsistent to the point that Ronnfeldt
Farms cannot logically choose one theory without renouncing
the other. Thus, we do not consider the subcontractor theory
or any negligence-based duties Ronnfeldt Farms asserts would
arise from a subcontractor relationship.
In conclusion, we find that Frost owed Ronnfeldt Farms a
general duty of care. Summary judgment was, therefore, inap-
propriate on Ronnfeldt Farms’ limited claim of independent
negligence against Frost. What standard of care was required
of Frost and whether Frost’s actions or inactions constituted a
breach of that standard are questions for the finder of fact.
5. Frost’s Cross-Appeal
On cross-appeal, Frost assigns and argues that the district
court erred when it declined to find that as a matter of law,
Ronnfeldt Farms cannot show proximate causation. Frost also
assigns and argues that Ronnfeldt Farms’ failure to preserve
certain evidence warrants an inference that Ronnfeldt Farms
cannot demonstrate causation.
The district court did not reach the issue of causation or
the issue of evidence preservation in its order granting sum-
mary judgment. Based on the conclusions the court made, it
was not necessary for the court to consider these issues. We
decline to consider these issues that were not addressed by the
district court. An appellate court will not consider an issue on
appeal that was not passed upon by the trial court. Hinson v.
Forehead, 30 Neb. App. 55, 965 N.W.2d 793 (2021).
- 512 -
Nebraska Court of Appeals Advance Sheets
32 Nebraska Appellate Reports
RONNFELDT FARMS V. ARP
Cite as 32 Neb. App. 490VI. CONCLUSION
For the foregoing reasons, we affirm the district court’s
order granting summary judgment as to Ronnfeldt Farms’
breach of contract and negligence claims based on a theory
that Frost was engaged in a joint venture with Arp. Frost
cannot be held liable for Arp’s alleged breach of contract or
alleged negligent behavior. However, we find that the district
court erred by finding that Frost did not have a general duty
of care with respect to the work they performed at Ronnfeldt
Farms and in granting summary judgment to Frost based on
that finding. Therefore, we reverse the portion of the court’s
order granting summary judgment on Ronnfeldt Farms’ inde-
pendent negligence claim against Frost and remand the cause
for further consideration of the remaining issues raised in the
motion for summary judgment related to Ronnfeldt Farms’
independent negligence claim.
Affirmed in part, and in part reversed and
remanded for further proceedings.