Wayne L. Ryan Revocable Trust v. Ryan , 308 Neb. 851 ( 2021 )


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    05/21/2021 12:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
    Cite as 
    308 Neb. 851
    Wayne L. Ryan Revocable Trust et al., appellees,
    v. Constance “Connie” Ryan, appellee,
    and Streck, Inc., appellant.
    ___ N.W.2d ___
    Filed April 9, 2021.     No. S-19-951.
    1. Equity: Stock: Valuation. A proceeding to determine the fair value of a
    petitioning shareholder’s shares of stock is equitable in nature.
    2. Equity: Appeal and Error. An appellate court reviews an equitable
    action de novo on the record and reaches a conclusion independent of
    the factual findings of the trial court; however, where credible evidence
    is in conflict on a material issue of fact, the appellate court considers
    and may give weight to the circumstance that the trial court heard and
    observed the witnesses and accepted one version of the facts rather
    than another.
    3. Statutes: Appeal and Error. Statutory interpretation is a matter of law,
    in connection with which an appellate court has an obligation to reach
    an independent, correct conclusion irrespective of the determination
    made by the court below.
    4. Prejudgment Interest: Appeal and Error. Awards of prejudgment
    interest are reviewed de novo.
    5. Judgments: Evidence. A trial court in a case tried to the court without
    a jury may adopt a party’s proposed findings of fact verbatim provided
    that the findings and conclusions reflect the court’s independent view
    and judgment of the evidence.
    6. Judgments: Evidence: Appeal and Error. Although findings drawn by
    the trial court itself are more helpful to the appellate court, findings pre-
    pared by counsel and adopted verbatim by the trial judge are formally
    the judge’s and will stand if supported by evidence.
    7. Judgments: Appeal and Error. The adoption of a party’s proposed
    findings does not require an appellate court to set aside the deference
    ordinarily given to the trial judge’s factual findings.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
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    308 Neb. 851
    8. Judgments: Evidence: Appeal and Error. When accepting a party’s
    proposed findings, minor mistakes that do not prejudice a party consti-
    tute harmless error; however, a trial court may commit error if the pro-
    posed facts or law are unsupported by the evidence and cause prejudice.
    The critical inquiry is whether such findings, as adopted by the court,
    are clearly erroneous.
    9. Corporations: Stock: Valuation. A determination of fair value of
    corporate shares in an election-to-purchase proceeding following a
    shareholder’s petition for dissolution of corporation is to be based on all
    material factors and elements that affect value, given to each the weight
    indicated by the circumstances.
    10. ____: ____: ____. The real objective in determining the fair value
    of corporate shares is to ascertain the actual worth of that which the
    shareholder loses. Under this analysis, the court may consider the nature
    of the business and its operations, its assets and liabilities, its earning
    capacity, the investment value of its stock, the market value of the stock,
    the price of stocks of like character, the size of the surplus, the amount
    and regularity of dividends, future prospects of the industry and of the
    company, and good will, if any.
    11. Expert Witnesses. The determination of the weight that should be given
    expert testimony is uniquely the province of the fact finder.
    12. Corporations: Stock: Valuation. The trial court is not required to
    accept any one method of stock valuation as more accurate than another
    accounting procedure.
    13. Corporations: Valuation. A trial court’s valuation of a closely held
    corporation is reasonable if it has an acceptable basis in fact and
    principle.
    14. Corporations: Stock: Valuation: Expert Witnesses. A judicial valua­
    tion of corporate stock presents unique challenges which are compli-
    cated by the clash of contrary, and often antagonistic, expert opinions of
    value, prompting the trial court to wade through widely divergent views
    reflecting partisan positions in arriving at its determination of a single
    number for fair value.
    15. Corporations: Stock: Valuation: Evidence. While discharging its stat-
    utory mandate to value a shareholder’s stock, it is entirely proper for a
    trial court to adopt one expert’s model, methodology, and calculations
    if they are supported by credible evidence and the judge analyzes them
    critically on the record.
    16. Corporations: Stock: Valuation: Appeal and Error. As long as they
    are supported by the record, an appellate court may defer to the trial
    court’s factual findings in a statutory corporate stock valuation pro-
    ceeding, even if the appellate court might independently reach a differ-
    ent conclusion.
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    Nebraska Supreme Court Advance Sheets
    308 Nebraska Reports
    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
    Cite as 
    308 Neb. 851
    17. Corporations: Stock: Valuation. The valuation of corporate shares is
    to be made without consideration of any increase in value resulting from
    the transaction itself.
    18. 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 statutory words which are plain,
    direct, and unambiguous.
    Appeal from the District Court for Sarpy County: Nathan
    B. Cox, Judge. Affirmed.
    Thomas H. Dahlk and Victoria H. Buter, of Kutak Rock,
    L.L.P., and Ronald E. Reagan, of Reagan, Melton & Delaney,
    L.L.P., for appellant.
    Kamron T.M. Hasan, David A. Lopez, and Marnie A. Jensen,
    of Husch Blackwell, L.L.P., for appellees Wayne L. Ryan
    Revocable Trust et al.
    Daniel J. Welch and Damien J. Wright, of Welch Law Firm,
    P.C., for appellee Constance “Connie” Ryan.
    Heavican, C.J., Cassel, Funke, Papik, and Freudenberg,
    JJ.
    Funke, J.
    The sales process implemented by a corporation’s succes-
    sor president and chief executive officer (CEO) failed to pro-
    duce an offer acceptable to the majority shareholder. When
    the corporation was not sold, the majority shareholder sued
    the president and CEO, as well as the corporation, alleg-
    ing shareholder oppression and breach of fiduciary duty. The
    corporation elected to purchase the petitioning shareholder’s
    shares, which initiated a valuation proceeding in district court.
    The court held a 9-day bench trial and determined the fair
    value of the shares to be purchased by the corporation to be
    $467 million. The court awarded the petitioning shareholder
    approximately $256 million in prejudgment interest and, over
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    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
    Cite as 
    308 Neb. 851
    objection, ordered the corporation to pay the fair value portion
    of the judgment within 10 days.
    The corporation, Streck, Inc., appeals the court’s valuation
    of shares, award of prejudgment interest, and order to make
    payment. Based on the record and credibility findings of the
    district court, and the statutory law governing prejudgment
    interest in a proceeding to value a petitioning shareholder’s
    shares, we conclude that Streck’s appeal is without merit.
    Therefore, we affirm.
    I. BACKGROUND
    1. Parties
    (a) Streck
    Streck, a closely held, private family business, is a Nebraska
    corporation with its principal place of business in La Vista,
    Sarpy County, Nebraska. Streck is a subchapter S corporation
    under the Internal Revenue Code.
    Streck is a worldwide industry leader in developing and
    manufacturing cell stabilization technology for use in hematol-
    ogy, immunology, and molecular diagnostics. Streck’s products
    are used to control and calibrate laboratory instruments that
    analyze blood cells and DNA, and they have a significant
    impact in health care. When Dr. Wayne L. Ryan founded Streck
    in 1971, Streck’s core business was hematology controls.
    Streck was “‘first to market’” with a majority of its products,
    and it maintains approximately three-quarters of the hematol-
    ogy control market in the United States. Dr. Ryan subsequently
    developed a blood collection tube (BCT) product, which allows
    for the preservation and transportation of blood samples. The
    BCT products’ capability to stabilize “DNA and . . . RNA” was
    a significant advancement in the field of molecular diagnostics.
    In addition, Streck’s flow cytometer identifies white blood
    cells, which allows for the diagnosis of diseases, such as AIDS
    and various cancers.
    Streck, with its 330 employees and 200,000 square foot
    facility, has a fully integrated business model for its products,
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    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
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    308 Neb. 851
    with research and development, manufacturing, and distribu-
    tion. Streck has a strong operational performance, increasing
    sales every year since inception with no product recalls in
    the past 25 years. Streck has deeply entrenched relationships
    with its largest customers that are secured with long-term con-
    tracts. Streck has a valuable portfolio of intellectual property,
    with, as of December 2014, 42 patents and 42 pending patent
    applications. Streck has an intellectual property strategy, with
    both offensive and defensive strategies, designed to protect its
    position in the market. For its BCT products, Streck planned
    to apply for broad patent protections for extended periods
    of time.
    Streck’s financial performance surged in recent years. From
    2010 to 2014, Streck’s annual net sales went from $73.9 mil-
    lion to $101.8 million, averaging 8 percent growth each year.
    During this time period, Streck’s average gross profit margins
    were 62.6 percent, 64.4 percent, 66.7 percent, 68.6 percent, and
    69.7 percent. Streck’s adjusted earnings before interest, taxes,
    depreciation, and amortization (EBITDA) during this period
    was $33.7 million, $36.1 million, $40.1 million, $49.6 million,
    and $53.6 million. In April 2014, Streck had 10 new products
    in development. In July 2014, Streck set a goal to double sales
    within the next 6 years and set a goal for 2015 to develop and
    execute a growth strategy to achieve $200 million in sales by
    2020. Streck expected continued growth with its BCT products
    and planned to gain one of the largest companies in Streck’s
    industry as a new client.
    (b) Ryan Family
    Dr. Ryan was Streck’s founder, director of research and
    development, CEO, and chairman of the board. Dr. Ryan and
    his wife, Eileen Ryan, had five children: Constance Ryan
    (Connie), Tim Ryan, Stacy Ryan, Carol Ryan, and Steven Ryan.
    The ownership structure of Streck is comprised of the Wayne
    L. Ryan Revocable Trust (the RRT), which owns 52.275 per-
    cent; Eileen’s trust, which owns 39.641 percent; and Connie’s
    trust and the 2014 “Grantor Retained Annuity Trust,” which
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    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
    Cite as 
    308 Neb. 851
    owns 8.008 percent. In 2014, Dr. Ryan gifted .026 percent of
    Streck’s voting stock to Carol, Steven, and Barry Uphoff, a
    family friend. Uphoff worked in Streck’s laboratory after col-
    lege and later served on Streck’s board of directors for nearly a
    decade, including a brief period as chairman of the board.
    In March 2013, Eileen passed away. Eileen’s estate con-
    veyed her one-third of Streck’s voting shares to Connie, giving
    Connie two-thirds of the company’s voting shares. As a result,
    Connie obtained voting control of Streck, with the power to
    appoint a majority of Streck’s board of directors. In September
    2013, based on her own recommendation to the board, Connie
    replaced her father, Dr. Ryan, as CEO. Connie proposed that
    Streck name a new director of research and development and
    encouraged Dr. Ryan to retire. Dr. Ryan did not object to
    Connie’s becoming CEO so long as the company was sold.
    Connie agreed to prepare the company for sale in the next 2
    to 3 years.
    In the spring of 2014, Dr. Ryan made Carol the trustee of
    the RRT.
    2. Project Blizzard
    Connie’s effort to sell Streck was referred to within Streck
    as “Project Blizzard.” In January 2014, prior to the launch of
    Project Blizzard, Streck received interest from potential buy-
    ers. A private investor told Connie he would buy Streck for
    $330 million. Mike Morgan, Streck’s former chief financial
    officer (CEO), valued Streck at $285 million for purposes of
    making an offer to purchase 10 percent of Streck. Uphoff,
    who is also the founder and managing partner of a private
    equity firm, Capricorn Healthcare & Special Opportunities
    (Capricorn), submitted an indication that he would purchase
    Streck for $425 million.
    During this time, Dr. Ryan engaged Carson Wealth Man­
    agement Group (Carson) to conduct a valuation. Carson found
    Streck to be a “very high quality business with incredible mar-
    gins and solid growth prospects.” Two analysts from Carson
    independently valued Streck at approximately $705 million.
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    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
    Cite as 
    308 Neb. 851
    According to the testimony of Carol, based on the inter-
    est from prospective buyers in the early part of 2014, Connie
    and Streck’s chairman of the board, Ron Gartlan, believed
    they could conduct a sales process themselves and bring in
    an investment banker at the end of the sales process. Connie
    and Gartlan determined that the sale of Streck would be run
    through Streck’s management, without input from Dr. Ryan
    and Carol. Dr. Ryan and Carol voiced that Streck was going
    blind into the sale as to its true value, and they expressed
    concern about the lack of the involvement of an investment
    banker. Gartlan indicated that he was familiar with an invest-
    ment banker that Streck could use, and in March 2014, Streck
    engaged the investment banker without interviewing other
    candidates. Thereafter, Dr. Ryan and Carol were excluded from
    the meetings which Streck and its investment banker had with
    potential buyers.
    Project Blizzard consisted of three rounds of bidding. In
    the first two rounds, each prospective buyer submitted a
    preliminary indication of interest (IOI). In the third round,
    each buyer submitted a final letter of intent (LOI). The bids
    excluded the approximately $76.5 million of cash held by
    Streck, which would be distributed to the shareholders prior to
    closing. All of the bids submitted through the process agreed
    to Streck’s primary terms, which were to keep the business in
    Omaha, Nebraska; maintain relationships with key customers;
    and retain key employees, including Connie and her manage-
    ment team.
    Ten potential buyers, consisting of one diagnostics health
    care company and nine private equity companies, submitted
    an IOI in the first round. Most bids contained a range with
    a low number and high number. The bids were as follows:
    Bio-Techne, Inc., $387 million to $427 million; Water Street,
    $415 million to $430 million; Summit Partners, $425 mil-
    lion; Capricorn, $425 million to $450 million; Bain Capital
    Partners, LLC, $475 million to $525 million; The Carlyle
    Group, $550 million to $600 million; The Jordan Company,
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    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
    Cite as 
    308 Neb. 851
    $550 million to $600 million; Genstar Capital Management
    LLC, $570 million; GTCR, $575 million to $625 million; and
    Warburg Pincus LLC, $525 million to $625 million. GTCR, a
    private equity firm based in Chicago, Illinois, launched a new
    fund in 2014 and was searching for a platform company in
    molecular diagnostics. GTCR submitted a bid with a midpoint
    of $600 million, which was the highest in the first round.
    Connie, with support from the board and Streck’s invest-
    ment banker, selected 6 of the 10 potential buyers to visit
    Streck to meet with management, tour the facilities, and obtain
    further due diligence from Streck. The four lowest bids from
    round one advanced to round two. GTCR, the highest bidder,
    did not advance to round two. Each potential buyer selected
    for round two submitted a revised IOI. The round two bids
    were as follows: Summit Partners, $350 million to $375 mil-
    lion; ­Bio-Techne, $432 million to $447 million; Capricorn,
    $490 million to $515 million; Water Street, $505 million to
    $530 million; The Carlyle Group, $565 million to $585 mil-
    lion; and Warburg Pincus, $575 million. Also around this time
    period, in June 2014, Streck’s investment banker valued Streck
    at $558.5 million, exclusive of cash.
    At a board meeting held July 11, 2014, Dr. Ryan announced
    that he had lost confidence in the sales process. Dr. Ryan,
    a 52.275 percent shareholder and the income beneficiary of
    Eileen’s trust, stated that he had requested to include Carol
    and the trustee of Eileen’s trust in the process and that it
    was unfair to exclude them. Before leaving the meeting,
    Dr. Ryan stated:
    I own now 92% of the stock. Connie owns eight. And
    the Board has zero. You have nothing to lose. I have
    everything to lose in this decision you’re making. . . . The
    decisions about the bidding process and the bidders are
    being made without input from approximately 92% of the
    total votes.
    Streck went through the offers, submitted followup ques-
    tions, and selected the companies which made the four
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    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
    Cite as 
    308 Neb. 851
    highest bids as finalists and requested that each submit an
    LOI. Streck’s investment banker maintained a dialogue with
    the potential buyers and facilitated further due diligence.
    Streck’s management conducted a second round of meetings
    with the buyers. Following this process, Capricorn elected not
    to submit an LOI.
    Streck received three LOI’s in the third and final round.
    Warburg Pincus offered $450 million, plus a $50 million 3-year
    earnout. Water Street offered $530 million. The Carlyle Group
    offered $590 million. On August 19, 2014, the board held a
    meeting to select an LOI to recommend to the shareholders.
    Dr. Ryan announced that he did not find any of the LOI’s
    to be acceptable. Dr. Ryan stated that he was in no position
    to approve a sale, because he did not see what was gained.
    Dr. Ryan expressed that he was not being listened to and that
    the process was a waste of time. After Dr. Ryan exited the
    meeting, the board adopted a resolution to discontinue the sales
    process for at least 2 years before exploring another potential
    sale. Connie stated that she was no longer interested in selling
    the company and that due to her majority voting rights, there
    would be no sale without her agreement.
    Following the August 2014 board of directors’ meeting,
    Uphoff submitted an IOI to Dr. Ryan that valued Streck at
    $420 million. In September 2014, Carol, as trustee for the RRT,
    and with approval from the trustee of Eileen’s trust, contacted
    GTCR. GTCR submitted an IOI of $625 million to $675 mil-
    lion. Connie refused Carol’s request to schedule a sharehold-
    ers’ meeting to consider GTCR’s proposal. Connie stated that
    she had “informed the Board that I do not wish to pursue a
    sale” and that Streck had terminated its engagement with its
    investment banker. Carol convened a shareholders’ meeting to
    discuss GTCR’s offer, which Connie did not attend.
    3. Pretrial
    In October 2014, the RRT filed suit against Connie and
    Streck in the district court for Sarpy County, alleging share-
    holder oppression under 
    Neb. Rev. Stat. § 21-20
    ,162 (Reissue
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    2012) and breach of fiduciary duty. The petition requested,
    among other things, judicial dissolution of Streck.
    Streck formed a “Special Litigation Committee” (SLC) to
    determine how to respond to the lawsuit. Streck engaged a
    financial advisor, Empire Valuation Consultants, LLC (Empire),
    to conduct an independent valuation of Streck. Empire valued
    the RRT’s shares at a range of approximately $271 million
    to $328 million. After investigating the matter and consider-
    ing various alternatives, the SLC found that a sale of Streck
    “continues to be an attractive alternative” if the shareholders
    committed to a sale at a reasonable price. However, the SLC
    was not confident that the shareholders would agree to a sale
    despite the advantages. Therefore, the SLC recommended that
    Streck purchase the RRT’s stock. In making this recommenda-
    tion, the SLC recognized the litigation risk to Streck, includ-
    ing the potential for an extended legal process and a high
    stock value established by the court. But the SLC concluded
    that these “obligations and risks are outweighed by the ben-
    efits realized.”
    On January 19, 2015, Streck filed an “Election to Purchase”
    the RRT’s shares pursuant to 
    Neb. Rev. Stat. § 21-20
    ,166
    (Reissue 2012). Prior to the repeal of § 21-20,166, made effec-
    tive January 1, 2017, by 2015 Neb. Laws, L.B. 157, § 10,
    it allowed a corporation in a judicial dissolution action to,
    rather than dissolve, elect to purchase the shares owned by
    the petitioning shareholder. Since the time that Streck filed the
    election to purchase, and prior to this appeal, the Legislature
    repealed § 21-20,166 due to the adoption of the Nebraska
    Model Business Corporation Act (NMBCA), 
    Neb. Rev. Stat. §§ 21-201
     through 21-2,232 (Cum. Supp. 2016). However,
    § 21-2,232 of the NMBCA contains a saving provision that
    provides that the repeal of any statute by the NMBCA “does
    not affect” any “dissolution commenced under the statute
    before its repeal, and the . . . dissolution may be completed
    in accordance with the statute as if it had not been repealed.”
    Furthermore, based on the timing of events in this matter,
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    WAYNE L. RYAN REVOCABLE TRUST v. RYAN
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    308 Neb. 851
    the provisions of § 21-20,166 are applicable. 1 In any event,
    the election provisions under the now-repealed § 21-20,166 are
    substantially similar to those found in the NMBCA. Thus, the
    repeal of § 21-20,166 is not material in this matter.
    Under § 21-20,166(3), parties have 60 days from the filing
    of the election to reach an agreement on the fair value and
    terms of purchase of the petitioner’s shares. When an agree-
    ment is not reached, under § 21-20,166(4), the court, “upon
    application of any party, shall stay such proceedings and
    determine the fair value of the petitioner’s shares as of the day
    before the date on which the petition [for dissolution] was filed
    or as of such other date as the court deems appropriate under
    the circumstances.”
    In February 2015, Streck offered to purchase the RRT’s
    shares for approximately $220 million, which included an
    $80 million discount for lack of control and lack of market-
    ability. On March 23, 2015, Streck filed an application for
    stay, alleging that 60 days had elapsed and that the parties
    could not agree on the value of the RRT’s shares. Streck asked
    the court to determine the fair value of the RRT’s shares as of
    October 29, 2014, the day before the filing of the RRT’s peti-
    tion. Connie filed a motion also requesting that the court grant
    a stay and determine the fair value of the RRT’s shares. Connie
    did not file her own election to purchase the RRT’s shares. On
    April 28, 2015, the court issued a stay and permitted an addi-
    tional 90 days for discovery and negotiations on the issue of
    fair value.
    On June 29, 2015, the RRT moved for leave to file an
    amended complaint. The RRT’s proposed amended complaint
    requested that the court declare Streck’s election to purchase
    the RRT’s shares invalid. The court held a hearing and denied
    the motion to amend.
    1
    Dragon v. Cheesecake Factory, 
    300 Neb. 548
    , 
    915 N.W.2d 418
     (2018)
    (statutes covering substantive matters in effect at time of transaction or
    event govern, not later enacted statutes).
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    In January 2016, the RRT moved for partial summary judg-
    ment, seeking an order that discounts for lack of control or lack
    of marketability are not applicable in the determination of the
    “fair value” of the RRT’s shares. Streck filed its own motion
    for partial summary judgment, seeking an order that under
    § 21-20,166(2), it validly exercised its election to purchase the
    RRT’s shares. On April 25, the court entered an order grant-
    ing both motions. With respect to the RRT’s motion, the court
    found that, pursuant to our holding in Rigel Corp. v. Cutchall, 2
    discounts for lack of control or lack of marketability are not
    applicable when determining the “fair value” of a petitioning
    shareholder’s corporate stock. With regard to Streck’s motion,
    the court held that Streck was entitled to exercise an election
    to purchase the RRT’s shares, and had validly done so, and
    that therefore, under § 21-20,166, the election was not subject
    to challenge.
    On May 13, 2016, Stacy, for the second time, sought to
    intervene in the case. The court sustained Streck’s motion to
    strike Stacy’s complaint in intervention. We affirmed the dis-
    trict court’s denial of leave to intervene. 3 The matter returned
    to the district court.
    4. Bench Trial
    Dr. Ryan passed away in 2017. Thereafter, Carol stepped
    down as trustee. Steven and a trust company were appointed
    to serve as cotrustees of the RRT. The district court held a
    bench trial from September 24 through October 4, 2018. The
    principal issues before the court were (1) the fair value of the
    RRT’s shares of Streck as of October 29, 2014; (2) whether the
    RRT was entitled to an interest award under § 21-20,166(5)(a);
    and (3) whether to allow Streck to purchase the RRT’s shares
    in installments.
    2
    Rigel Corp. v. Cutchall, 
    245 Neb. 118
    , 
    511 N.W.2d 519
     (1994).
    3
    Wayne L. Ryan Revocable Trust v. Ryan, 
    297 Neb. 761
    , 
    901 N.W.2d 671
    (2017).
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    (a) Valuation Experts Robert Reilly
    and Jeffrey Risius
    At trial, the court heard opposing testimony from two experts
    in business valuation. Both experts utilized the discounted
    cashflow (DCF) method, a generally accepted method under
    the income approach. In combination with the DCF method,
    both experts utilized two generally accepted methods under
    the market approach, which were the guideline publicly traded
    company (GPTC) method and the guideline merger and acqui-
    sition (GMA) method.
    The RRT’s business valuation expert, Robert Reilly, has
    authored 12 textbooks on valuation issues and has testified
    in court over 150 times. Reilly has helped develop valua­
    tion standards for professional organizations such as The
    Appraisal Foundation, the American Society of Appraisers, the
    American Institute of Certified Public Accountants, and the
    National Association of Certified Valuation Analysts. Reilly
    opined that the fair value of the shares held by the RRT was
    $467 million.
    Streck’s valuation expert, Jeffrey Risius, is a principal in
    an international financial advisory firm and has been in the
    valuation business for almost 30 years. Risius has authored
    a book on valuation for the legal profession published by the
    business law section of the American Bar Association. Risius
    has extensive experience testifying as an expert witness on the
    issue of business valuation. Risius opined that the fair value of
    the shares held by the RRT was $304 million.
    (i) DCF Method
    The experts described the DCF method as determining
    Streck’s operating cashflow by evaluating financial projections
    and discounting Streck’s anticipated earnings to its present
    value. The experts evaluated financial projections for three
    time periods: 2015 through 2019, 2020 through 2024, and 2025
    into perpetuity. The experts considered several factors in cal-
    culating an appropriate discount rate. The higher the discount
    rate, the lower the valuation.
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    For the first time period, both experts used the same pro-
    jections, completed by Streck’s then-CFO, Morgan, in May
    2014 for use in Project Blizzard. Morgan projected that, for
    existing products, Streck’s revenues would grow to $148 mil-
    lion in 2019. According to the report of the SLC, Connie
    expressed confidence that Streck’s financial projections would
    be achieved and indicated they are “deliberately conserva-
    tive.” For 2013, Streck’s net income exceeded its plan by
    $11.5 million. From 2015 through 2017, Streck’s financial
    performance exceeded its projections. Reilly used the “deliber-
    ately conservative” projections for 2015 through 2019 prepared
    by Streck, but Risius used projections that were $10 mil­
    lion lower.
    For 2020 through 2024, Reilly projected growth rates of
    8 percent, 8 percent, 7 percent, 6.5 percent, and 4.5 percent,
    respectively. Reilly considered Streck’s historical growth rates
    and projections for publicly traded companies which Reilly
    concluded were comparable to Streck. Reilly assumed Streck’s
    growth rate would decrease on a stairstep basis rather than “fall
    off a cliff.” Reilly then applied a 4.5-percent growth rate from
    2025 into perpetuity. Reilly admitted that his projected growth
    rates were downward assumptions, because Streck’s profits
    had consistently increased. In determining a terminal growth
    rate of 4.5 percent, Reilly considered Streck’s historic growth
    rate and the anticipated industry growth rate, as well as gross
    domestic product growth rates and inflation rates. Reilly’s
    projected growth rate of 4.5 percent was approximately half
    of the industry’s historic growth rates. Reilly explained that a
    terminal growth rate of 4.5 percent assumed that Streck will
    revert from a period of “supernormal growth” to growing at
    the rate of inflation and growth in the economy. Risius applied
    a 3-percent growth rate from 2020 into perpetuity, citing risks
    such as customer concentration, low growth in hematology,
    competition, and patent expirations. The experts’ use of differ-
    ent long-term growth rates resulted in a difference in valuation
    of approximately $65 million.
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    Next, the experts calculated a discount rate, or “weighted
    average cost of capital.” Reilly applied a discount rate of
    11 percent. Reilly’s discount rate was based on the averaged
    sum of a 2.8-percent risk-free rate of return, a 5.6-percent
    industry-adjusted general equity risk premium, a 2.4-percent
    company-size risk premium, and a .5-percent company-specific
    risk premium. Reilly applied a company-size risk premium of
    2.4 percent, because that is the premium applied to companies
    in the eighth decile of the “Size Premia Study.” Based upon
    his market analysis, Reilly placed Streck in the eighth decile,
    which includes companies valued between $636 million and
    $1.05 billion. Reilly also calculated the same discount rate of
    11 percent using a buildup model. By applying his projections
    and discount rate under the DCF method, Reilly valued Streck
    at $707 million.
    Risius applied a discount rate of 12.4 percent. Risius ­differed
    from Reilly in his selection of a company-size risk premium.
    Risius testified that because the market capitalization of Streck
    was not available, he could not place Streck in the eighth
    decile. Risius reviewed Streck’s financial figures and arrived
    at a company-size risk premium of 6 percent. Because 6 per-
    cent appeared too high, Risius placed Streck in the “‘micro-
    cap’ [decile of] the Size Premia-Study,” which has a premium
    of 3.87 percent. The microcap group includes both 9th and
    10th decile companies, which have a market capitalization of
    between $2 million and $663 million. Finally, the experts used
    different company-specific risk premiums, with Risius apply-
    ing 1 percent as compared to Reilly’s .5 percent. Under the
    DCF method, Risius valued Streck at $456 million.
    (ii) GPTC Method
    The GPTC method measures the amount that Streck would
    trade for based on a comparison of Streck to publicly traded
    companies of similar size or profitability in the same line
    of business. The measurement of value is based on the mul-
    tiples of earnings of comparable publicly traded companies.
    For example, if a company’s EBITDA is $10 million and a
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    buyer makes an offer of $100 million, the offer represents 10
    multiples of the company’s EBITDA.
    Reilly performed a GPTC analysis of Streck by selecting
    publicly traded companies within the same standard industrial
    classifications (SIC) codes, codes 2835 and 3826. The U.S.
    Department of Labor defines SIC code 2835, entitled “In Vitro
    and In Vivo Diagnostic Substances,” as follows:
    Establishments primarily engaged in manufacturing in
    vitro and in vivo diagnostic substances, whether or not
    packaged for retail sale. These materials as chemical,
    biological, or radioactive substances used in diagnosing
    or monitoring the state of human or veterinary health by
    identifying and measuring normal or abnormal constit­
    uents of body fluids or tissues.
    SIC code 3826, entitled “Laboratory Analytical Instruments,”
    is defined as follows: “Establishments primarily engaged in
    manufacturing laboratory instruments and instrumentation sys-
    tems for chemical or physical analysis of the composition or
    concentration of samples of solid, fluid, gaseous, or compos-
    ite material.”
    Reilly selected six guideline companies within these SIC
    codes which had operations comparable to Streck. Each of the
    guideline companies Reilly selected were included in valua-
    tions conducted by Risius and Empire. Reilly found that Streck
    had been growing at a faster rate than the selected companies.
    To be conservative, Reilly used pricing multiples that were
    approximately 20 percent below the median of the selected
    companies. Reilly applied multiples of earnings of between
    13.5 and 15 EBITDA to Streck’s financial performance as of
    October 2014 and valued Streck under the GPTC method at
    $771 million.
    Risius’ GPTC companies had an average EBITDA multiple
    of 17.1. However, Risius concluded that Streck was not truly
    comparable to any of the GPTC companies. Risius therefore
    applied an EBITDA multiple of 9.5 and valued Streck under
    the GPTC method at $487 million.
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    The RRT adduced evidence that for tax purposes, sepa-
    rate from the valuation proceedings, Risius’ firm performed
    a valuation of Streck as of July 2014. Risius’ firm applied
    multiples for Streck which, if applied by Risius in this case,
    would increase Risius’ value under the GPTC method by
    $172 million.
    (iii) GMA Method
    Under the GMA method, both Reilly and Risius conducted a
    search of publicly available information regarding mergers and
    acquisitions of companies similar to Streck. Reilly selected 10
    mergers and acquisitions involving companies in the same SIC
    codes as Streck, and then selected the median of the multiples
    of earnings reflected in those transactions. Reilly applied those
    multiples to Streck’s financial metrics and valued Streck at
    $704 million. Risius found that given the uniqueness of Streck,
    there are few, if any, comparable sale transactions for consider-
    ation. Risius instead primarily relied upon the LOI’s obtained
    during Project Blizzard to determine a value for Streck. Based
    on the median of the three LOI’s, Risius arrived at a value of
    $545 million.
    (iv) “S Corp Premium”
    Each method employed by the experts measures the value
    of a subchapter C corporation. Because Streck is a subchapter
    S corporation, the experts agreed that applying an “S Corp
    premium” is necessary to reflect the value of the economic
    benefits associated with Streck’s status as an S corporation.
    Both experts utilized the S corporation economic adjust-
    ment model method. Reilly, after considering other additional
    methods, concluded that the appropriate premium was 14 per-
    cent. Risius also concluded that the appropriate premium was
    14 percent. However, due to the risk that Streck could elect to
    become a C corporation in the future, Risius adjusted the pre-
    mium to 7.1 percent. This adjustment reduced Risius’ valuation
    by $32 million.
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    (v) Valuation Conclusions
    As a final step to determine fair value, the experts added
    Streck’s $76,495,000 in cash and marketable securities as of
    October 2014. Reilly valued Streck under the three methods at
    $717 million, applied a 14-percent S Corp premium, and added
    Streck’s cash to conclude that the fair value of Streck was
    $893 million. Reilly opined that the fair value of the RRT’s
    52.275 percent ownership interest was $467 million.
    Risius applied a 7-percent S Corp premium to only his
    valuation under the DCF method and then synthesized his
    valuations under the three methods to arrive at a value of
    $505 million. After adding Streck’s cash, Risius valued Streck
    at approximately $581 million and found the rounded fair value
    of the shares held by the RRT to be $304 million.
    (b) John Riddle
    The court heard testimony from the RRT’s expert witness
    John Riddle, an experienced investment banker who special-
    izes in the diagnostic health care industry. Riddle’s experience
    includes developing and evaluating financial projections in
    connection with mergers and acquisitions. Riddle explained
    that as of October 2014, the health care life sciences market
    was growing at or over 7 percent. He testified that Streck was
    growing over the industry’s trend, that Streck had a strong
    profile for growth as compared to the market, and that, due to
    its positioning, Streck had “niche market dominance.” Riddle
    stated that “there is no other company like Streck in America
    certainly, and perhaps in the world.” Utilizing Streck’s projec-
    tions, Riddle conducted a leveraged buyout analysis which
    valued Streck at between $646 million and $742 million before
    considering an S Corp premium or adding back cash.
    Riddle opined that Project Blizzard was a flawed and failed
    process. Riddle stated that he expected to see offers “sev-
    eral hundred million dollars” higher than the LOI’s Streck
    received. Riddle testified that Streck’s growth projections were
    too conservative and were not properly characterized to the
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    prospective buyers during Project Blizzard. Riddle criticized
    Streck’s choice of investment banker given the banker’s lack
    of experience in the diagnostic health care market; Streck’s
    decision to exclude GTCR, the highest bidder in round one;
    and Streck’s instruction of terms in bid instruction letters, such
    as a reverse breakup fee and a preference to use low amounts
    of leverage, which Riddle contended chilled interest and drove
    down the price.
    Streck did not rebut Riddle’s testimony with any testi-
    mony of comparable expertise. Streck called investment banker
    James Calandra as an expert witness, but due to his lack of
    relevant experience, Calandra was not permitted to offer any
    opinions regarding Streck’s value within the diagnostic health
    care industry.
    5. District Court’s Findings
    On July 23, 2019, the district court issued its posttrial opin-
    ion and order. The court adopted the RRT’s 74-page proposed
    findings verbatim, while adding the statutory definition of
    “[f]air value” under § 21-2,171. Thus, the court adopted the
    valuation and testimony of the RRT’s expert witnesses Reilly
    and Riddle and rejected the testimony of Streck’s expert wit-
    ness Risius.
    (a) Fair Value
    The court found that the RRT met its burden of proving
    the fair value of its shares. The court found that (1) Reilly’s
    projections of Streck’s revenue and income were in line with
    Streck’s projections and prospects for growth, (2) Reilly’s
    long-term growth rate of 4.5 percent was reasonable, (3)
    Reilly’s selected company-size risk premium and company-
    specific risk premium were reasonable, (4) Reilly’s selected
    multiples of earnings from GPTC companies were reasonable
    and in line with companies in Streck’s industry, and (5) Reilly
    “credibly and convincingly testified” that no rational company
    would convert from an S corporation to a C corporation prior
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    to a sale. The court found that “Riddle credibly testified that
    several aspects of Project Blizzard served to limit the price
    offered for Streck.”
    The court found that Risius’ “downward bias” rendered his
    valuation under the DCF method “inherently unreliable.” The
    court found that Risius’ explanations for his projections were
    “misleading and not credible.” The court found that Risius
    “double-counted” the same risks to justify his projections and
    selected company-specific risk premium. The court found that
    Risius’ explanation of his company-size risk premium was not
    credible. The court found Risius’ valuations under the GPTC
    method and the GMA method reflected a downward bias. The
    court found that Risius’ “arbitrary halving of the S Corp pre-
    mium reflects his downward bias.” The court found that Risius’
    downward bias “renders his conclusion unreliable.”
    The court also found that the equities of the case favored
    Reilly’s valuation, because Dr. Ryan founded Streck and devel-
    oped the technology upon which the company was built and
    he established Streck’s relationship with its largest customer.
    The court stated that pursuant to Rigel Corp., a fair value
    determination should attempt to measure what Dr. Ryan lost. 4
    The court found that Dr. Ryan’s loss of his interest in Streck
    “was substantial, and that is reflected in the fair value of his
    shares as determined by Reilly.” The court found that Dr. Ryan
    was justified in not agreeing to a sale during Project Blizzard,
    because Dr. Ryan was shut out of the process and had warned
    that he was not supporting Project Blizzard. Thus, the court
    found that it was “not a surprise that Dr. Ryan would not
    approve a sale to the Project Blizzard buyers.”
    (b) Prejudgment Interest
    The court found that the RRT was entitled to an award
    of prejudgment interest pursuant to § 21-20,166(5)(a), which
    states in part:
    4
    See Rigel Corp., 
    supra note 2
    .
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    Interest may be allowed at the rate specified in sec-
    tion 45-104, [12 percent per annum,] as such rate may
    from time to time be adjusted by the Legislature, and
    from the date determined by the court to be equitable,
    but if the court finds that the refusal of the petitioning
    shareholder to accept an offer of payment was arbitrary or
    otherwise not in good faith, no interest shall be allowed.
    The court found that, under § 21-20,166(5)(a), there was
    no evidence that the RRT refused an offer of payment arbi-
    trarily or in bad faith. The court found that the RRT should
    be awarded prejudgment interest commencing on the date
    Streck filed its election to purchase, January 19, 2015, through
    the time of Streck’s purchase. In so ruling, the court rejected
    Streck’s arguments opposing a prejudgment interest award.
    Streck argued that the award of prejudgment interest was
    controlled by 
    Neb. Rev. Stat. § 45-103.2
     (Reissue 2010) and
    that the RRT failed to satisfy the procedural requirements of
    § 45-103.2. Streck argued the court was precluded from award-
    ing prejudgment interest on an unliquidated amount. The court
    found Streck’s arguments to be without merit, because in a
    fair value proceeding regarding the petitioning shareholder’s
    shares, the award of prejudgment interest is governed by
    § 21-20,166(5)(a), which specifically references 
    Neb. Rev. Stat. § 45-104
     (Reissue 2010), not § 45-103.2. The court found
    “the procedural requirements set forth in § 45-103.02, when
    viewed in the context of § 21-20,166, do not make sense and
    are clearly not applicable.” The court found the amount at issue
    in a fair value proceeding is contested and therefore will be
    unliquidated. Lastly, the court found no merit to Streck’s argu-
    ments that prejudgment interest should not be awarded due to
    the RRT’s challenge of Streck’s election to purchase and due
    to the RRT’s lack of objection to Stacy’s attempt to intervene
    in the case.
    6. Posttrial
    Following trial, the RRT moved for a final order direct-
    ing Streck’s purchase pursuant to § 21-20,166(5)(a), which
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    states that “[u]pon determining the fair value of the shares,
    the court shall enter an order directing the purchase upon such
    terms and conditions as the court deems appropriate . . . .”
    The court held a hearing on the motion on August 12, 2019,
    at which Streck requested to make installment payments. On
    September 13, the court granted the RRT’s motion and ordered
    Streck to pay the fair value portion of the judgment within
    10 days.
    The court found that Streck represented at an August 2018
    hearing that it was ready to purchase the RRT’s shares. The
    court found that Streck’s SLC considered the affordability of
    the judgment in its January 2015 report when it recommended
    that Streck purchase Dr. Ryan’s shares. The court found the
    SLC report contained assurances from Streck’s CEO and
    then-CFO that Streck could afford the entire judgment through
    a combination of cash, borrowing, and, if necessary, private
    equity investment. The court found the evidence demonstrated
    that Streck had secured the ability to pay for the fair value
    of the RRT’s shares in full as of January 2015 and that there
    was no credible evidence Streck could not purchase the RRT’s
    shares. The court found it “particularly troublesome” that, if
    Streck’s argument were accepted, Streck would not be able to
    afford even the valuation of its own expert. The court found
    that this alone demonstrated that Streck had come before it
    “with unclean hands.” The court awarded the RRT prejudg-
    ment interest in the amount of approximately $256 million for
    the period of January 19, 2015, through August 12, 2019. The
    court dismissed the RRT’s petition for dissolution.
    Streck moved for a new trial. Connie moved for a new trial
    and moved to alter or amend. The court denied the motions.
    Streck filed an appeal, and we granted the parties’ request
    for bypass.
    II. ASSIGNMENTS OF ERROR
    Streck assigns, restated and summarized, that the district
    court erred in (1) adopting the RRT’s proposed findings,
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    (2) valuing the RRT’s shares, (3) awarding prejudgment
    interest, and (4) refusing Streck’s request to make install-
    ment payments.
    Connie filed a brief asserting assignments of error which
    overlap with and reiterate Streck’s arguments regarding the
    court’s valuation and order directing purchase. However,
    although Connie was the principal defendant in the RRT’s peti-
    tion and she filed a motion requesting that the court determine
    the fair value of the RRT’s shares, Connie did not file an elec-
    tion to purchase any shares under § 21-2,201(d). Therefore,
    Connie, in her individual capacity, is not a proper party to
    these proceedings. 5
    III. STANDARD OF REVIEW
    [1,2] A proceeding to determine the fair value of a petition-
    ing shareholder’s shares of stock is equitable in nature. 6 An
    appellate court reviews an equitable action de novo on the
    record and reaches a conclusion independent of the factual
    findings of the trial court; however, where credible evidence
    is in conflict on a material issue of fact, the appellate court
    considers and may give weight to the circumstance that the
    trial court heard and observed the witnesses and accepted one
    version of the facts rather than another. 7
    [3] Statutory interpretation is a matter of law, in connection
    with which an appellate court has an obligation to reach an
    independent, correct conclusion irrespective of the determina-
    tion made by the court below. 8
    [4] Awards of prejudgment interest are reviewed de novo. 9
    5
    See Anderson v. A & R Ag Spraying & Trucking, 
    306 Neb. 484
    , 
    946 N.W.2d 435
     (2020).
    6
    See, id.; Rigel Corp., 
    supra note 2
    .
    7
    
    Id.
    8
    
    Id.
    9
    AVG Partners I v. Genesis Health Clubs, 
    307 Neb. 47
    , 
    948 N.W.2d 212
    (2020); Weyh v. Gottsch, 
    303 Neb. 280
    , 
    929 N.W.2d 40
     (2019).
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    IV. ANALYSIS
    1. Adoption of Proposed Findings
    As a threshold matter, Streck argues that by adopting the
    RRT’s posttrial proposed findings nearly verbatim, the court
    erred because it failed to independently review all of the rel-
    evant evidence. In response, the RRT argues that where one
    party’s submission credibly establishes the merits of the case,
    and the other party’s does not, the court may adopt the cred-
    ible submission.
    [5-8] A trial court in a case tried to the court without a
    jury may adopt a party’s proposed findings of fact verbatim
    provided that the findings and conclusions reflect the court’s
    independent view and judgment of the evidence. 10 Although
    findings drawn by the trial court itself are more helpful to
    the appellate court, findings prepared by counsel and adopted
    verbatim by the trial judge are formally the judge’s and will
    stand if supported by evidence. 11 The adoption of a party’s
    proposed findings does not require an appellate court to set
    aside the deference ordinarily given to the trial judge’s factual
    findings. 12 When accepting a party’s proposed findings, minor
    mistakes that do not prejudice a party constitute harmless error;
    however, a trial court may commit error if the proposed facts
    or law are unsupported by the evidence and cause prejudice. 13
    The critical inquiry is whether such findings, as adopted by the
    court, are clearly erroneous. 14
    10
    89 C.J.S. Trial § 1261 (2012).
    11
    See United States v. El Paso Gas Co., 
    376 U.S. 651
    , 
    84 S. Ct. 1044
    , 
    12 L. Ed. 2d 12
     (1964); 75B Am. Jur. 2d Trial § 1596 (2018). See, also, In re
    Estate of Lane, 
    39 Kan. App. 2d 1062
    , 
    188 P.3d 23
     (2008).
    12
    See, In re Estate of Lane, 
    supra note 11
    ; Indiana Industries, Inc. v. Wedge
    Products, 
    430 N.E.2d 419
     (Ind. App. 1982).
    13
    In re H.M., 
    2014 Ohio 755
    , 
    9 N.E.3d 470
     (2014). See In re M.B., 
    709 N.W.2d 11
     (N.D. 2006).
    14
    See, In re M.B., supra note 13; Bluford v. Wells Fargo Fin. Ohio 1, Inc.,
    
    176 Ohio App. 3d 500
    , 
    892 N.E.2d 920
     (2008).
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    In one of the leading state court cases on this issue, Uptime
    Corp. v Colorado Research Corp., 15 the Supreme Court of
    Colorado held that when a trial judge signs findings prepared
    by counsel for the prevailing party, the correctness of the find-
    ings becomes the judge’s responsibility, and the appellate court
    will presume that the trial judge examined the proposed find-
    ings and agreed that they correctly stated the facts as the judge
    found them to be. Moreover, independent of any presump-
    tion, appellate courts have remarked that when a trial court
    makes changes to the proposed findings, that is an indication
    the trial court considered the findings before adopting them
    and read, analyzed, and agreed with the findings that were
    left unchanged. 16
    Here, we find no merit to Streck’s assertion that the court
    did not exercise independent judgment as the finder of fact.
    The record demonstrates that the court carefully considered the
    issues and provided thorough reasons for its decision. Although
    Streck identifies certain isolated findings which it claims are
    not correct, a court errs in adopting a party’s proposed findings
    only if the findings are unsupported by the evidence and cause
    prejudice. 17 Streck’s assignment of error here fails because,
    even if Streck has identified mistakes in the court’s findings,
    when the trial record regarding valuation is considered as a
    whole, Streck has failed to demonstrate that it suffered any
    prejudice as a result of any erroneous findings.
    Streck claims the court should not have referenced Riddle’s
    testimony that at the time of trial, Streck was valued at over
    $1 billion. Streck is correct that the relevant valuation date
    is October 29, 2014, and not the 2018 trial date. However,
    the court’s findings made this clear by stating that “the Court
    fixed the valuation date as October 29, 2014.” The court
    15
    Uptime Corp. v. Colorado Research Corp., 
    161 Colo. 87
    , 
    420 P.2d 232
    (1966).
    16
    See, Harris v. AHTNA, Inc., 
    193 P.3d 300
     (Alaska 2008); Stevens v.
    Humana of Delaware, Inc., 
    832 P.2d 1076
     (Colo. App. 1992).
    17
    See In re H.M., 
    supra note 13
    .
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    was merely referencing the RRT’s argument for a different
    valuation date.
    Streck claims the court erred by referencing the valuation
    conducted by Carson. In its posttrial findings, the court listed
    the Carson valuation as an indication of value obtained prior to
    the commencement of Project Blizzard. We agree with Streck
    that in this isolated finding, the court misstated the amount of
    the Carson valuation. Based on our review of the evidence,
    Carson valued Streck at $705 million rather than $850 million
    as stated by the court. However, we find the court’s error to
    be harmless, because it is undisputed that the court received
    Carson’s valuation for the limited purpose of showing Carol’s
    state of mind early in the sales process. Additionally, the record
    indicates that the court considered the Carson valuation for the
    sole and limited purpose of an indication of value which Carol
    became aware of in early 2014. Therefore, even if Streck has
    identified a mistake in the court’s adopted findings, there is
    no evidence that this particular finding played a material role
    in the court’s valuation analysis such that Streck suffered any
    unfair prejudice.
    Additionally, Streck assigns that the court erred by denying
    its request to include the RRT’s posttrial proposed findings
    in the record for purposes of appeal. While the court did not
    receive the RRT’s findings as substantive evidence for pur-
    poses of considering Streck’s motion for a new trial, Streck
    did mark the RRT’s proposed findings as an exhibit and that
    exhibit does appear in our record on appeal. This assignment
    of error is without merit.
    2. Fair Value of the RRT’s Shares
    Streck argues that the court erred in determining the fair
    value of the RRT’s shares to be $467 million. All of Streck’s
    arguments on the issue of fair value are based upon the testi-
    mony of Risius or the Project Blizzard LOI’s, which Streck
    argues are the best indicia of value in the record. Streck
    argues that the court erred in adopting Reilly’s valuation,
    because Reilly improperly assumed synergies; Reilly did not
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    consider the Project Blizzard LOI’s; and at one point in his
    testimony, Reilly discussed fair market value rather than fair
    value. Streck claims that it has identified errors in Reilly’s cal-
    culations, as adopted by the court, with respect to each valua-
    tion method and the application of the S Corp premium.
    [9,10] This court has previously stated that in determining
    the fair value of a petitioning shareholder’s stock, the “‘real
    objective is to ascertain the actual worth of that which the
    [shareholder] loses.’” 18 Such a determination is to be based
    on all material factors and elements that affect value, given to
    each the weight indicated by the circumstances. 19 Under this
    analysis, the court may consider the nature of the business and
    its operations, its assets and liabilities, its earning capacity, the
    investment value of its stock, the market value of the stock,
    the price of stocks of like character, the size of the surplus,
    the amount and regularity of dividends, future prospects of the
    industry and of the company, and good will, if any. 20
    [11-13] The determination of the weight that should be given
    expert testimony is uniquely the province of the fact finder. 21
    The trial court is not required to accept any one method
    of stock valuation as more accurate than another account-
    ing procedure. 22 A trial court’s valuation of a closely held
    corporation is reasonable if it has an acceptable basis in fact
    and principle. 23
    18
    Rigel Corp., 
    supra note 2
    , 
    245 Neb. at 127
    , 
    511 N.W.2d at 524
     (quoting
    Warren v. Balto. Transit Co., 
    220 Md. 478
    , 
    154 A.2d 796
     (1959)). See
    Anderson, 
    supra note 5
    .
    19
    See, 
    id.
     See, also, Athlon Sports Communications v. Duggan, 
    549 S.W.3d 107
     (Tenn. 2018); Belk of Spartanburg, S.C. v. Thompson, 
    337 S.C. 109
    ,
    
    522 S.E.2d 357
     (S.C. App. 1999); Walter S. Cheesman Realty Co. v.
    Moore, 
    770 P.2d 1308
     (Colo. App. 1988).
    20
    See 
    id.
    21
    Anderson, 
    supra note 5
    ; Fredericks Peebles v. Assam, 
    300 Neb. 670
    , 
    915 N.W.2d 770
     (2018).
    22
    Anderson, 
    supra note 5
    .
    23
    
    Id.
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    [14-16] A judicial valuation of corporate stock presents
    unique challenges which are “complicated by ‘the clash of
    contrary, and often antagonistic, expert opinions of value,’
    prompting the trial court to wade through ‘widely divergent
    views reflecting partisan positions’ in arriving at its determina-
    tion of a single number for fair value.” 24 While discharging its
    statutory mandate to value a shareholder’s stock, it is entirely
    proper for a trial court to adopt one expert’s model, methodol-
    ogy, and calculations if they are supported by credible evidence
    and the judge analyzes them critically on the record. 25 As long
    as they are supported by the record, an appellate court may
    defer to the trial court’s factual findings in a statutory corporate
    stock valuation proceeding, even if the appellate court might
    independently reach a different conclusion. 26
    Upon our de novo review of the record and consider-
    ing Streck’s arguments on appeal, we conclude that the trial
    court’s valuation is reasonable and has an acceptable basis in
    fact and principle. We conclude the court did not err in find-
    ing Reilly’s valuation testimony to be reasonable and credible,
    in finding that Risius’ testimony was not credible or reliable,
    and in giving weight to Riddle’s unrefuted testimony that
    the Project Blizzard LOI’s were not a reliable indication of
    Streck’s value.
    In our valuation analysis, we discuss the experts’ valuations,
    the court’s credibility findings, and the expert and lay testi-
    mony regarding the dysfunctional nature of Project Blizzard.
    (a) Reilly and Risius
    Reilly and Risius used the same valuation methods and
    approaches. Both experts found it appropriate to perform the
    DCF method, the GPTC method, and the GMA method and
    to apply an S Corp premium and add back Streck’s cash. The
    24
    Dell v. Magnetar Global Master Fund, 
    177 A.3d 1
    , 22 (Del. 2017),
    quoting Matter of Shell Oil Co., 
    607 A.2d 1213
     (Del. 1992).
    25
    Golden Telecom, Inc. v. Global GT LP, 
    11 A.3d 214
     (Del. 2010).
    26
    
    Id.
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    experts disagreed in their selection of data. A comparison of
    the experts’ financial projections under the DCF method dem-
    onstrates the nature and extent of the experts’ disagreements.
    Reilly used Streck’s projections for 2015 through 2019,
    which showed approximately 10 percent growth each year.
    Reilly observed that in actual performance during this period,
    Streck’s revenue grew approximately 15 percent each year.
    Noting Connie’s statement that Streck’s projections were
    “deliberately conservative,” Reilly stated that Streck is “a lot
    more profitable than the projections indicate.” During trial,
    the court specifically noted that “it’s been established through
    the evidence that the projections that this company has made
    historically up to the valuation date were extremely conserva-
    tive.” Conversely, Risius used short-term projections that were
    $10 million lower than Streck’s projections.
    Regarding the experts’ selected long-term projections, Reilly
    opined that Streck’s growth rate would gradually decline over
    5 years until it reached 4.5 percent. Reilly’s projections were
    similar to those used by Empire in its valuation for the SLC.
    Reilly explained that this figure was less than half of Streck’s
    historic growth rate and less than half of the industry’s growth
    rate. Reilly stated that by using lower projections, he accounted
    for risks such as competition and patent expirations.
    Risius selected a long-term growth rate of 3 percent. Part of
    Risius’ reasoning for using lower projections was to account
    for risks such as customer concentration, new competition, pat-
    ent expirations, and Streck’s already dominant position in the
    hematology market.
    [17] Streck claims that the court erred by crediting Reilly’s
    projections, because Reilly improperly assumed that Streck
    would overcome risks due to synergies created by the transac-
    tion. The valuation of corporate shares is to be made without
    consideration of any increase in value resulting from the
    transaction itself. 27 We disagree with Streck’s characterization
    27
    See, Dell, supra note 24; Union Illinois v. Union Financial Group, 
    847 A.2d 340
     (Del. Ch. 2004).
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    of Reilly’s testimony and the trial court’s findings. The court
    did not factor synergies into its valuation, and further, there is
    no evidence that Reilly considered synergies in his testimony.
    The court merely found that Risius did not credibly value risks
    and that his projections were “misleading.” Reilly’s projec-
    tions accounted for risks by using growth rates lower than
    the historic rates of Streck and Streck’s industry. Moreover,
    contrary to Streck’s argument that Reilly assumed synergies,
    there is evidence that Reilly was conservative in his valuation.
    Reilly based his first 5 years of his DCF analysis, and por-
    tions of his GPTC analysis, on Streck’s “deliberately conserv­
    ative” projections. Additionally, Streck’s projections did not
    include anticipated growth from BCT sales. There is no merit
    to Streck’s claim that the court increased its valuation based
    on synergies.
    Streck argues that Reilly’s valuation is an outlier and that
    according to the Supreme Court of Delaware’s decision in Dell
    v. Magnetar Global Master Fund, 28 the district court erred by
    not giving greater weight to the Project Blizzard LOI’s. Streck
    argues that the court should have given greater weight to the
    post-Project Blizzard IOI’s as well.
    In Dell, after a company’s board approved a merger, stock-
    holders demanded a court-conducted appraisal. The court
    found that the evidence regarding the sales process failed to
    establish a reliable indication of fair value, because the inves-
    tors myopically accepted a low offer due to their focus on
    short-term profits. The court stated that it could not quantify
    how the process affected the price, and therefore, it gave
    the transaction price no weight when determining fair value
    and rendered a valuation exclusively based on its own DCF
    analysis. While recognizing that an appraisal is “‘by design,
    a flexible process,’” 29 and that there is no presumption in
    favor of the deal price, 30 the appellate court reversed, finding
    28
    Dell, supra note 24.
    29
    Id. at 24, quoting Golden Telecom, Inc., supra note 25.
    30
    See Dell, supra note 24.
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    that the trial court’s reasoning was not grounded in the record.
    The appellate court found that the record showed the market
    analysts in the merger process understood the company’s long-
    term outlook and that based on the evidence, the transaction
    price was entitled to heavy, if not overriding, weight in estab-
    lishing fair value. The appellate court endorsed the efficient
    market hypothesis, which “teaches that the price produced by
    an efficient market is generally a more reliable assessment
    of fair value than the view of a single analyst, especially an
    expert witness who caters her valuation to the litigation imper-
    atives of a well-heeled client.” 31 The court noted, however, in
    the scenario in which there is reason to suspect that market
    forces cannot be relied upon, a DCF analysis provides the
    court with helpful data about the price a sales process would
    have produced. 32
    The circumstances in Dell are much different than those
    in the present case. As Streck acknowledges, rather than
    affording the LOI’s no weight, the court here found that the
    LOI’s created a floor for its valuation analysis. The record
    shows the court considered the highest LOI, submitted by
    The Carlyle Group, in the amount of $590 million. This LOI,
    after applying an S Corp premium and adding Streck’s cash,
    represented a value of $749 million. The record further shows
    that the court similarly considered and weighed the post-
    Project Blizzard IOI submitted by GTCR. This IOI, taking
    the high number in the range, $675 million, and applying an
    S Corp premium and adding Streck’s cash, represented a value
    of $846 million. Thus, while Reilly’s valuation of Streck at
    $893 million is higher, Reilly’s valuation is not as much of
    an outlier as Streck argues. Reilly measured Streck’s value
    using reasonable GPTC companies, also selected by Risius
    and Empire. Reilly’s valuation reflects Streck’s status as a
    market leader and innovator with tremendous prospects for
    31
    Id. at 24.
    32
    See, Dell, supra note 24; M.P.M. Enterprises, Inc. v. Gilbert, 
    731 A.2d 790
    (Del. 1999).
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    continued financial growth. By contrast, Risius used multiples
    that were inconsistent with a recent valuation of Streck con-
    ducted by Risius’ firm, which reduced Risius’ valuation under
    the GPTC method by $172 million. The court considered and
    weighed Reilly’s valuation, Risius’ valuation, and the Project
    Blizzard LOI’s. Streck has failed to prove that the court erred
    in not affording greater weight to the Project Blizzard LOI’s.
    Streck’s reliance on Dell is misplaced.
    Additionally, as Reilly explained regarding the Project
    Blizzard LOI’s, “[t]here were no completed transactions, nor
    [was] there anything, in my opinion, close to completed trans-
    actions for which I could actually extract pricing evidence.”
    Streck planned to wait to begin the process of drafting a stock
    purchase agreement until after it received an acceptable LOI.
    Had a Project Blizzard LOI been accepted, there was confirma-
    tory diligence and closing yet to be completed. More important
    though, there is extensive evidence in the record that Project
    Blizzard was defective and did not reliably reflect the market’s
    view regarding Streck’s value.
    As illustrated below through witness testimony, the sales
    process was flawed due to the use of tempered financials and
    restricting the majority shareholder’s information and partici-
    pation. Among the reasons for Project Blizzard’s failure, Reilly
    noted in his report that Project Blizzard “may have been half-
    heartedly undertaken by Streck” and that Streck’s engagement
    of an investment banker may have been “just a charade.” Not
    even Risius credited the LOI’s with the value Streck contends
    they should have. Streck has failed to show that the LOI’s
    deserve greater consideration.
    Streck also claims that Reilly failed to testify as to fair
    value, because at one point he referenced the standard for fair
    market value. The record is clear that the court’s valuation
    did not rely upon this fleeting testimony. Streck’s argument is
    without merit.
    Streck further claims that Reilly’s testimony contains sev-
    eral identifiable errors. As previously mentioned, in addition
    to their disagreement regarding Streck’s financial projections,
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    the experts disagreed on their calculation of a discount rate
    under the DCF method, their valuations under the GPTC
    method and the GMA method, and their application of an
    S Corp premium.
    Regarding the DCF method, Streck argued that the court
    erred by adopting Reilly’s 4.5 percent terminal growth rate
    instead of Risius’ 3 percent and by adopting Reilly’s 2.36 per-
    cent company-size risk premium instead of Risius’ 3.87 per-
    cent. Streck argued that Reilly’s GPTC analysis was flawed
    because of Reilly’s use of higher multiples; selection of com-
    panies significantly larger than Streck; and giving equal weight
    to the GPTC method and the DCF and GMA methods, when
    there are no companies which are truly comparable to Streck.
    Streck argued that Reilly’s GMA analysis ignored the LOI’s
    and that Reilly’s application of the full 14 percent S Corp pre-
    miums ignored risks specific to Streck.
    The court considered each area of disagreement between the
    valuation experts and found Reilly’s valuation to be reasonable
    and supported by the evidence. The court found that each part
    of Risius’ analysis in his valuation, including his projections
    and calculation of a discount rate under the DCF method, his
    GPTC and GMA methods, and his “arbitrary halving of the
    S Corp premium,” reflected a downward bias which rendered
    his conclusions unreliable. Here, we find the expert testimony
    raised evidence in conflict on material issues of fact regard-
    ing the valuation of Streck’s stock. Where credible evidence
    is in conflict on material issues of fact, the reviewing court
    may consider and give weight to the fact that the trial court
    observed the witnesses and accepted one version of the facts
    over another. 33 Therefore, although Streck devoted much of its
    brief to identifying errors in Reilly’s testimony, Streck’s argu-
    ments lack merit because they are based on Risius’ testimony,
    and the court made detailed findings that Risius’ testimony
    lacked credibility. Upon de novo review, giving weight to
    33
    See Anderson, 
    supra note 5
    ; Assam, 
    supra note 21
    .
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    the trial court’s judgment as to credibility, we find that the
    record supports the district court’s findings regarding valua-
    tion. Again, we are not persuaded by Streck’s reassertion of
    Risius’ discredited testimony.
    Having discussed the testimony of Risius, Streck’s only
    remaining source of evidence regarding valuation is the Project
    Blizzard LOI’s. We discuss the unrefuted testimony of the
    RRT’s expert Riddle and lay witness testimony to demonstrate
    that the Project Blizzard LOI’s are not reliable indications of
    fair value.
    (b) Riddle
    Riddle, an investment banker who specializes in the diag-
    nostic health care industry, evaluated Streck’s projections and
    the Project Blizzard sales process. Riddle opined that Streck’s
    growth was described too conservatively to buyers and that
    the sales process was flawed and yielded a flawed result.
    Apart from stating the obvious that Project Blizzard did not
    result in a successful sale, Riddle criticized Project Blizzard
    in the following areas: (i) Streck’s partnership with its invest-
    ment banker, (ii) Streck’s decision to exclude GTCR, and (iii)
    Streck’s depression of value through bid instruction terms. The
    court found that Riddle credibly testified that several aspects of
    Project Blizzard limited the price offered for Streck.
    (i) Streck’s Partnership With
    Investment Banker
    Streck’s investment banker contacted 14 prospective buyers
    for Project Blizzard. Ten buyers submitted IOI’s. Streck and its
    investment banker met with six buyers, all of which submit-
    ted second round IOI’s. The third round yielded three LOI’s.
    There is evidence that Connie and Dr. Ryan both thought the
    process was not run well and lacked confidence in the result.
    At a June 2014 board of directors’ meeting, Connie addressed
    the board regarding the performance of Streck’s investment
    banker as an advisor and partner. Connie announced that
    the investment banker’s managing director is a “very poor
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    communicator.” She stated that the investment banker has not
    been a partner in the sales process and has not provided rea-
    sons why Streck should choose one buyer over another. Connie
    stated that she did not find the investment banker to be help-
    ful or knowledgeable within Streck’s industry, even though it
    claimed to be an expert in health care. Connie stated, regarding
    the investment banker, that “as an advisor, I feel we have been
    left completely on our own.” While acknowledging Connie’s
    concerns, Gartlan stated that the board was “too far into it to
    do anything different.” The board then ratified the investment
    banker’s engagement letter. In doing so, the board discussed
    and considered the possible outcome that Streck would not
    be sold, and it confirmed that if a sale did not occur, Streck
    would owe the investment banker a fee of $200,000, plus com-
    mission rights up to 1 year from termination.
    Based on this evidence, Riddle opined that the statements
    of Streck’s founder and CEO showed that Streck was disap-
    pointed with its investment banker and the strength of the sales
    process. Riddle stated that therefore, “it was almost predict-
    able that [Project Blizzard] did not yield the kind of results
    necessary to get to and the kind of value necessary to get to
    a transaction.”
    Riddle opined that the termination of Project Blizzard did
    not have to end the sales process. As an investment banker,
    Riddle stated that Streck did not get a fair assessment of the
    market and could do better if exposed to more buyers.
    (ii) GTCR
    Of the Project Blizzard buyers, Riddle viewed GTCR as
    the company which offered the best price and was in the best
    position to succeed with Streck. In 2014, immediately prior
    to Project Blizzard, GTCR launched a new 10-year fund of
    nearly $4 billion and was looking to invest in a platform
    company. Riddle stated that the long investment window fit
    well with Streck’s needs as a closely held family company,
    because there would be less pressure to sell with the oppor-
    tunity to grow the investment over time. Riddle stated that, at
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    minimum, as the highest bidder in round one with an IOI of
    $575 million to $625 million, GTCR should have advanced in
    the process if only to drive up the other bids. The record shows
    that the midpoint of GTCR’s bid in round one was $600 mil-
    lion and that after Project Blizzard, GTCR increased its offer
    to $625 million to $675 million. The exclusion of GTCR from
    Project Blizzard reveals the arbitrary nature of the decision-
    making process.
    (iii) Bid Instruction Terms
    Riddle opined that the inclusion of a reverse breakup fee and
    a preference for low leverage in Project Blizzard bid instruc-
    tions chilled interest and repressed price. According to the
    testimony of Riddle, as well as Uphoff, a breakup fee is money
    damages one party pays to another in the event the transaction
    is not completed. A reverse breakup fee places responsibility
    for money damages with the prospective buyer. Each of the
    final LOI’s included reverse breakup fees of $20 million to
    $30 million. Riddle testified that based on his experience, such
    a fee is not customary in this type of sales process. Riddle did
    not focus on the amount of the fee, but stated that the fact that
    the fee was included at all chilled interest and depressed value,
    because it increased financial risk to the prospective buyers.
    Riddle stated that in this case, the prospective buyers still
    had substantial due diligence to be completed, and that such
    unknowns can cause buyers to bid conservatively.
    Riddle testified that Streck further created a chilling effect
    by requesting bids which limited leverage to four times
    EBITDA. The final LOI’s agreed to limit leverage to five
    times EBITDA. Riddle testified that, in and of itself, a prefer-
    ence for less leverage is not necessarily a problem, but it does
    send a message to prospective buyers that financing will be
    constrained and that bids using higher amounts of leverage will
    not be well received. Both Streck’s then-CFO, Morgan, and
    Streck’s investment banker acknowledged that a higher amount
    of leverage correlates with a higher bidding price. Based on
    his experience, Riddle opined that a company with the level
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    of Streck’s profitability can take on and support a tremendous
    amount of debt.
    The district court found that Riddle credibly testified that
    several aspects of the sales process limited the price offered
    for Streck. Streck has not refuted Riddle’s testimony with a
    witness of comparable experience and expertise. Therefore, we
    conclude that the court did not err in giving weight to Riddle’s
    testimony and in giving limited weight to the LOI’s.
    Additionally, Streck in effect considered only financial buy-
    ers. Project Blizzard included only one strategic buyer in the
    diagnostic health care industry. No strategic buyers advanced
    beyond the second round. In his report, Reilly raised the point
    that there are active strategic buyers which could have acquired
    Streck. Reilly provided an example transaction from 2016 in
    which a strategic buyer acquired one of the GPTC compa-
    nies for $1.11 billion. The acquired company’s 2015 EBITDA
    was $44.5 million, as compared to Streck’s $63.8 million.
    The record indicates the preferences of management affected
    Streck’s value in the sales process.
    (c) Lay Witness Testimony
    Lay witnesses produced evidence indicating that the pros-
    pects for a successful sale of Streck were bleak and that the
    sales process was run in an adversarial manner. Carol testified
    that once Connie became CEO, Dr. Ryan began to receive
    incomplete financial information and then stopped receiving
    any of Streck’s financial information. Additionally, Carol testi-
    fied that throughout Project Blizzard, she and Dr. Ryan were
    prohibited from attending sales meetings with prospective buy-
    ers. Carol explained she needed the information Streck was
    providing to the buyers. Carol testified, “I don’t know what
    Streck is saying, what they’re offering. All I see is numbers
    going down.” In response to Carol and Dr. Ryan’s request
    to receive Streck’s financials, Connie and Gartlan stated that
    Carol and Dr. Ryan would receive only the information pro-
    vided under Nebraska law.
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    Uphoff, a long-time friend of the Ryan family, served on
    Streck’s board and then resigned from the board once he
    decided to participate in Project Blizzard as a prospective
    buyer. Uphoff’s firm Capricorn advanced through rounds one
    and two, but decided not to submit an LOI. Uphoff described
    his experience in meeting with Streck’s management regarding
    his first IOI. Uphoff found it odd that Dr. Ryan, the company’s
    founder, scientist, and largest owner, was not present at the
    meeting. Uphoff stated that typically the seller will want to
    highlight that person. Noting Streck’s tempered financials,
    Uphoff stated that overall there was not a lot of enthusiasm in
    Streck’s presentation. Uphoff admitted this may have in part
    been due to the deterioration of his relationship with Connie
    after she became CEO.
    Prior to Uphoff’s meeting with Streck’s management, Streck
    sent written questions to Uphoff, which Uphoff stated were
    atypical, not relevant to a potential sale, and “certainly insult-
    ing.” One of Streck’s questions stated:
    Barry Uphoff appears to continue to have ongoing commu-
    nications with Carol Ryan, Wayne Ryan and Steven Ryan.
    Please document all communication that has occurred
    with any Ryan family member or Streck employee since
    you submitted your offer letter. Please provide copies of
    all emails sent to or from Barry Uphoff and any Ryan
    family member or Streck employee since Jan[.] 13, 2014.
    Please disclose any information related to other offers
    for Streck shared with Barry Uphoff by Carol, Steve
    or Wayne Ryan at the Creighton basketball game they
    attended together on Jan[.] 17, 2014. Please provide a
    summary of any phone calls exchanged between Barry
    Uphoff and Dr. Ryan since Jan[.] 13, 2014.
    There is evidence that Streck’s advancement of Capricorn
    through the sales process may have been a pretense. Morgan
    did not think Capricorn should advance to round two. Connie
    agreed that “[Uphoff] will never be on our list” but stated
    that “how best to manage is the question.” Connie advanced
    Capricorn to round two in order to not “have a big moment
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    now.” Morgan speculated that Connie kept Uphoff in the proc­
    ess in order to keep Dr. Ryan engaged. If Capricorn was not
    a good fit from Streck’s perspective, then the sales process
    could have benefited from including GTCR in round two rather
    than Capricorn.
    From Uphoff’s perspective as a potential buyer, he stated
    Streck’s preference for less debt was atypical. As an analogy,
    Uphoff stated, “if you’re selling a house, you really don’t care
    where that money comes from, whether it’s out of someone’s
    bank account or the bank they’re borrowing it from, you
    just want that total dollar amount.” Uphoff found the reverse
    breakup fee to be atypical. In explaining why he chose not
    to submit an LOI, he stated that it was “death by a thousand
    cuts.” Uphoff stated that if everything was added up, a poten-
    tial buyer would begin to wonder whether Streck was “really
    serious about transacting. . . . [I]s this just a waste of time try-
    ing to get something done?” In this way, Uphoff’s testimony
    echoed much of the substance of Riddle’s testimony.
    We conclude that as a result of the dysfunctional nature of
    Project Blizzard, evidence of which was established by wit-
    ness testimony, the LOI’s are not entitled to significant weight
    in valuing Streck, and we further conclude that the trial court
    did not err in determining the LOI’s represented a floor as
    to valuation.
    3. Prejudgment Interest
    The court awarded the RRT prejudgment interest pursuant
    to § 21-20,166(5)(a), which states: “Interest may be allowed at
    the rate specified in section 45-104, . . . but if the court finds
    that the refusal of the petitioning shareholder to accept an
    offer of payment was arbitrary or otherwise not in good faith,
    no interest shall be allowed.” In doing so, the court found
    no evidence that the RRT refused an offer of payment arbi-
    trarily or not in good faith. The court determined the RRT was
    entitled to interest on the fair value of its shares from January
    19, 2015, the date of Streck’s election to purchase, through
    August 12, 2019. The court applied the statutory interest rate
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    of 12 percent per annum set out in § 45-104 and awarded inter-
    est in the amount of approximately $256 million.
    Streck argues that the court erred in awarding prejudgment
    interest, because the RRT did not comply with the requirements
    of § 45-103.02(1). Section 45-103.02(1) provides:
    Except as provided in section 45-103.04, interest as pro-
    vided in section 45-103 shall accrue on the unpaid balance
    of unliquidated 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 condi-
    tions are met:
    (a) The offer is made in writing upon the defendant by
    certified mail, return receipt requested, to allow judgment
    to be taken in accordance with the terms and conditions
    stated in the offer;
    (b) The offer is made not less than ten days prior to the
    commencement of the trial;
    (c) A copy of the offer and proof of delivery to the
    defendant in the form of a receipt signed by the party or
    his or her attorney is filed with the clerk of the court in
    which the action is pending; and
    (d) The offer is not accepted prior to trial or within
    thirty days of the date of the offer, whichever occurs first.
    [18] Streck contends that the RRT is not entitled to pre-
    judgment interest, because the claim was unliquidated, the
    RRT did not make a demand prior to trial, and the RRT did
    not plead a request for prejudgment interest. Though Streck
    is correct that the requirements of § 45-103.02 have not been
    met, we disagree with Streck that an award of prejudgment
    interest in this case is controlled by § 45-103.02(1). 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 statutory words which are plain, direct, and
    unambiguous. 34
    34
    In re Application No. OP-0003, 
    303 Neb. 872
    , 
    932 N.W.2d 653
     (2019).
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    Section 21-20,166(5)(a) is an independent statute authoriz-
    ing the recovery of prejudgment interest. The sequence con-
    templated by the plain and unambiguous terms of the statute
    is that, under § 21-20,166(1), the corporation may elect or, if
    the corporation fails to elect, one or more shareholders may
    elect to purchase the petitioning shareholder’s shares at fair
    value. Under § 21-20,166(3), if the parties reach an agree-
    ment, the court shall enter an order directing the purchase of
    the petitioner’s shares upon the terms and conditions agreed to
    by the parties. If the parties are unable to reach an agreement,
    then under § 21-20,166(4), the court shall determine the fair
    value of the petitioner’s shares, and under § 21-20,166(5)(a),
    the court shall enter an order directing the purchase upon such
    terms and conditions as the court deems appropriate. Under
    § 21-20,166(5)(a), “[i]nterest may be allowed,” subject to one
    exception that “if the court finds that the refusal of the petition-
    ing shareholder to accept an offer of payment was arbitrary or
    otherwise not in good faith, no interest shall be allowed.” The
    word “may” when used in a statute will be given its ordinary,
    permissive, and discretionary meaning unless it would mani-
    festly defeat the statutory objective. 35 Section 21-20,166(5)(a)
    means what it says. Under § 21-20,166(5)(a), the court is
    authorized but is not required to award interest. But if the
    court finds that the petitioning shareholder refused an offer
    arbitrarily or otherwise not in good faith, the court is not
    authorized to award interest.
    Section 45-103.02(1) is inapplicable, because it contem-
    plates different procedures and a different interest rate. Streck’s
    argument that the RRT’s claim must be liquidated to recover
    prejudgment interest is immaterial. 36 A claim is liquidated for
    purposes of prejudgment interest when there is no reason-
    able controversy as to both the amount due and the plaintiff’s
    35
    Brumbaugh v. Bendorf, 
    306 Neb. 250
    , 
    945 N.W.2d 116
     (2020).
    36
    See, e.g., AVG Partners I, supra note 9; Weyh, 
    supra note 9
    .
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    right to recover. 37 We agree with the RRT’s interpretation that
    § 21-20,166(5)(a) provides for an interest award despite the
    fact that, under the procedures established by the Legislature
    for a proceeding to purchase a petitioning shareholder’s shares,
    the amount due is in controversy, making the petitioner’s claim
    by definition unliquidated.
    Nothing within § 21-20,166 requires the petitioning share-
    holder to make a demand for payment before trial or include
    a request for interest in its pleadings. Section 21-20,166(1) is
    unique in that the proceedings are initiated by the purchas-
    ing party’s filing of an election. Section 21-20,166 does not
    require that the petitioning shareholder file a responsive plead-
    ing. While notice of a request to recover prejudgment interest
    is encouraged, compliance with Neb. Ct. R. Pldg. § 6-1108(a)
    is not determinative where entitlement to interest is based on
    statute and the adverse party had notice and an opportunity to
    be heard prior to judgment. 38 It is clear that Streck had notice
    of potential liability for prejudgment interest prior to electing
    to purchase the RRT’s shares.
    Having rejected Streck’s prejudgment interest arguments
    based upon § 45-103.02(1), the only remaining issue that we
    must determine is whether the RRT refused an offer of pay-
    ment arbitrarily or otherwise not in good faith. We note that
    Streck has not argued that interest should commence on a dif-
    ferent date.
    The only evidence of an offer made by Streck is its February
    2015 offer of approximately $220 million, which included an
    $80 million discount for lack of control and lack of market-
    ability. Streck argues that the RRT should be precluded from
    an interest award, because the RRT never responded to the
    February 2015 offer and the RRT delayed the litigation by
    challenging Streck’s election and would not agree to go for-
    ward with trial during the pendency of Stacy’s appeal.
    37
    Brook Valley Ltd. Part. v. Mutual of Omaha Bank, 
    285 Neb. 157
    , 
    825 N.W.2d 779
     (2013).
    38
    AVG Partners I, supra note 9.
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    We have not been presented with evidence that Streck made
    a realistic offer; as such, we cannot conclude that the RRT’s
    failure to accept an offer was arbitrary or not in good faith.
    Allegedly vexatious litigation conduct is not relevant to an
    award of prejudgment interest when the issue is good faith
    rejection of an offer. 39 As such, Streck’s arguments are uncon-
    vincing. This assignment of error is without merit.
    4. Payment Order
    Streck assigns that the district court erred in refusing to
    allow Streck to make installment payments to satisfy the judg-
    ment. Section 21-20,166(5)(a) states that “[u]pon determin-
    ing the fair value of the shares, the court shall enter an order
    directing the purchase upon such terms and conditions as the
    court deems appropriate, which may include payment of the
    purchase price in installments when necessary in the interest of
    equity . . . .” The district court ordered Streck to purchase the
    RRT’s shares within 10 days and overruled Streck’s request to
    make installment payments.
    Streck’s request was based on an affidavit from its CFO,
    which stated that due to the size of the judgment, Streck would
    be unable to obtain the necessary funds within 10 days. In
    rejecting Streck’s request, the court found that Streck’s evi-
    dence lacked credibility and was contrary to representations
    Streck previously made to the court, as well as assurances
    made by Streck in the SLC report that it would be able to
    pay the purchase price. The court found that Streck had an
    extended period to plan for the payment and that Streck had
    come to the court with unclean hands.
    For purposes of disposing of Streck’s assignment of error
    regarding the court’s payment order, we need not decide
    whether Streck’s representations to the trial court rose to the
    level of unclean hands. Suffice it to say that the trial court was
    not swayed by Streck’s stated need for installment payments.
    39
    See, e.g., Matter of Carolina Gardens v. Menowitz, 
    238 A.D.2d 189
    , 
    655 N.Y.S.2d 536
     (1997).
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    The South Dakota Supreme Court interpreted a statute simi-
    lar to § 21-20,166(5)(a) and determined that the language per-
    mits a trial court discretion in requiring a lump-sum payment or
    installment payments. 40 The South Dakota court then employed
    an abuse of discretion standard of review to determine whether
    the trial court erred in ordering installment payments. 41
    Here, the trial court found that Streck’s request was not in
    the interests of equity. The court, having conducted the bench
    trial and presided over the case for an extended period of time,
    was in the best position to determine the appropriate terms and
    condition of payment. We give significant weight to the court’s
    credibility determination. 42 Nothing within our record supports
    Streck’s contention that the trial court abused its discretion
    in ordering a lump-sum payment. This assignment of error is
    without merit.
    V. CONCLUSION
    For the foregoing reasons, we affirm the judgment of the
    district court.
    Affirmed.
    Miller-Lerman and Stacy, JJ., not participating.
    40
    Link v. L.S.I., Inc., 
    793 N.W.2d 44
     (S.D. 2010).
    41
    
    Id.
    42
    See Anderson, 
    supra note 5
    .
    

Document Info

Docket Number: S-19-951

Citation Numbers: 308 Neb. 851

Filed Date: 4/9/2021

Precedential Status: Precedential

Modified Date: 5/21/2021

Authorities (23)

Belk of Spartanburg, S.C., Inc. v. Thompson , 337 S.C. 109 ( 1999 )

Indiana Industries, Inc. v. Wedge Products, Inc. , 1982 Ind. App. LEXIS 1054 ( 1982 )

United States v. El Paso Natural Gas Co. , 84 S. Ct. 1044 ( 1964 )

Carolina Gardens, Inc. v. Menowitz , 655 N.Y.S.2d 536 ( 1997 )

Wayne L. Ryan Revocable Trust v. Ryan , 308 Neb. 851 ( 2021 )

M.P.M. Enterprises, Inc. v. Gilbert , 1999 Del. LEXIS 205 ( 1999 )

Union Illinois 1995 Investment Ltd. Partnership v. Union ... , 847 A.2d 340 ( 2004 )

Wayne L. Ryan Revocable Trust v. Ryan , 297 Neb. 761 ( 2017 )

Rigel Corp. v. Cutchall , 245 Neb. 118 ( 1994 )

Anderson v. A & R Ag Spraying & Trucking , 306 Neb. 484 ( 2020 )

In re H.M. , 2014 Ohio 755 ( 2014 )

Stevens Ex Rel. Stevens v. Humana of Delaware, Inc. , 16 Brief Times Rptr. 688 ( 1992 )

Weyh v. Gottsch , 303 Neb. 280 ( 2019 )

Walter S. Cheesman Realty Co. v. Moore , 12 Brief Times Rptr. 1498 ( 1988 )

In Re the Appraisal of Shell Oil Co. , 1992 Del. LEXIS 193 ( 1992 )

Golden Telecom, Inc. v. GLOBAL GT LP , 2010 Del. LEXIS 666 ( 2010 )

Bluford v. Wells Fargo Financial Ohio 1, Inc. , 176 Ohio App. 3d 500 ( 2008 )

Uptime Corp. v. Colorado Research Corp. , 161 Colo. 87 ( 1966 )

Dragon v. Cheesecake Factory , 300 Neb. 548 ( 2018 )

In Re the Estate of Lane , 39 Kan. App. 2d 1062 ( 2008 )

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